P L D 2003 Supreme Court 126 (PLP)

Laws Cited

Representation

• ----O. XXVI, R. 6---Constitution of Pakistan (1973), Art.188---Review petition---Maintainability---No plausible justification could be put forth for the absence of the Advocate who had argued the appeal judgment of which was under review---Advocate who had entered appearance for the first time in the case could not be allowed to argue the review petition in view of the provisions as contained in O.XXVI, R.6 of the Supreme Court Rules, 1980---Advocate who did not appear at the hearing of the appeal could not appear in the review petition as of right---No case was made .out to dispense with the requirements as enunciated in the said provisions of the Supreme Court Rules, 1980---Review petition was dismissed accordingly.
• ----O. XXVI, R.6---Constitution of Pakistan (1973), Art.188---Review of judgments or orders by Supreme Court---An Advocate who did not appear at the hearing of the appeal could not appear in the review petition as of right.
• Muhammad Aslam Nagi, Advocate Supreme Court for Petitioner.
• Asghar Ali Chaudhry, Advocate Supreme Court for the Respondent/Complainant.
• JAVED IQBAL, J.---it is an admitted fact-that the criminal appeal bearing No.591 of 2000 judgment whereof has been assailed by means of this review petition was argued by Raja Muhammad Anwar, learned Senior Advocate Supreme Court. No plausible justification could be put forth for A his absence. Mr. Muhammad Aslam Nagi, learned Advocate Supreme Court entered appearance for the first time in this case and as such cannot be, allowed to argue this review petition in view of the provisions as contained in Order XXVI, rule 6 of the Supreme Court Rules, 1980, which makes it abundant clear that "except with the special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Nor shall any other Advocate, except such Advocate, he heard in support of the application for review, unless the Court has dispensed with the requirement aforesaid".
• 2. It is well-settled by now that an Advocate who did not appear at the hearing of the appeal could not appear in the review as of right. In this regard we are fortified by the dictum as laid down in Yousaf Ali Khan v. The State (Pakistan Supreme Court Reports (Vol. I, 1972) 103, Yousaf Ali Khan v. The State PLD 1971 SC 508, Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504 and Ghulam Rasul v. Settlement anti Rehabilitation Commissioner 1980 SCMR 962).
• "But before this petition was argued, the learned counsel for the, caveators-respondents 5 to 12 raised a preliminary objection that the review petition was improperly constituted as it was not drawn and signed by the counsel who argued the petition as required by rule of Order XXVI of the Pakistan Supreme Court Rules, 1956. The review petition is drawn and signed by Mr. Ahmadullah Farooqi, who was the Advocate-on-Record in Civil Petition No.K-84 of 1977. The learned counsel for the petitioners, to get over the objection, relied on Sh. Anwarul Haq v. Mst. Surayya Parveen 1971 SCMR 171, Mushtaq Ahmed alias Mushtaq Hussain and others v. Hakim Bibi and others 1971 SCMR 235. It is true that in these two cases this Court held that the requirement of rule 5 of the Supreme Court Rules, 1956, was satisfied if the junior counsel, who was present at the hearing, had drawn and signed the review petition, but this cannot be regarded as an inviolable practice as in that eventuality the object of the rule would be frustrated having regard to the limited scope of the review jurisdiction; and it is for the reason that the discretion is given to the Court to dispense with the presence of the Advocate who had argued the petition. We may here observe that the insistence or the presence of the Advocate is for the reason to confine him to what transpired in the course of the hearing which purpose cannot be achieved if some other counsel were to argue the review petition. Accordingly, the rule gives discretion to dispense with the presence of the Advocate for some substantial reason and in the instant case no reason was given as to why the counsel who had argued the petition and was available had not drawn and signed the petition if there was any merit in it."

Headnotes / Summary

Judgment & Decree