2008 PLP 880 (SCMR)

CH. IJAZ AHMED, J.

Petitioners have sought review of the impugned judgment, dated 26-6-2006 on the following grounds:-- (1) The learned counsel for the petitioner submits that eye-witnesses in the case in hand were chance witnesses who had failed to provide sufficient material on record qua their presence at the place of occurrence coupled with the fact that eye-witnesses did not belong to the village where in the incident had taken place. The eye-witnesses belong to different villages which are at a distance of 4 and 5 kilometers from the place of occurrence. (2) Incident had taken place all of sudden and this fact was not considered in the impugned judgment. (3) Ocular account was not corroborated by any piece of evidence on record. (4) Motive alleged by the prosecution was not proved by the prosecution. (5) Petitioners are real brothers and sentenced to death each by the Courts below including this Court in the impugned judgment is very harsh. (6) In view of the circumstances there is sufficient material on the record to award lesser punishment to the petitioners.

2. We have given our anxious consideration to the contention of the learned counsel of the petitioners and perused the record. It is an admitted fact that incident in question had taken place at 6-30 p.m. on 27-6-1995 and the F.I.R. was promptly lodged at 7-30 p.m. without any loss of time. The police station was at a distance of 6 kilometers. The medical evidence is also in. consonance with the statement of eye-witnesses. It is pertinent to mention here that contentions raised by the learned counsel were duly considered and rejected by this Court in the impugned judgment as evident from paras.5 and 6 of the impugned judgment. It is a settled principle of law that the remedy of review cannot be sought as a matter of right. It is the discretionary relief as observed by' this Court in various pronouncements. See Faqir Muhammad Khan's case PLD 1973 SC

110. The relevant observation is as follows:-- "The granting of review is still in the discretion of the Court. It is not bound to grant a review even where adequate ground exists but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles." The aforesaid proposition of law is also supported by Muhammad Zafarullah Khan's case PLD 1975 SC

300. It is pertinent to mention here that according to Rule 1 of Order XXVI of the Supreme Court Rules, the power of review is to be exercised in a criminal proceeding on the ground of an error apparent on the face of the record. In view of the finding rendered by this Court in the impugned judgment in paras.5-6 and the grounds which have been urged before us in this review petition do not fall within the parameters prescribed under the said rule according to which as law laid down by this Court it is necessary that error must be one which is apparent on the face of the record that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of act or of law but it must be an error which is itself evident and floating on the surface and, does not require any elaborate discussion, the contentions raised before us as mentioned above do not fulfil the aforesaid parameters prescribed by this Court in various pronouncements. It is a settled law that a review proceeding is neither in the nature of rehearing of the whole case, nor is it appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contention as were advanced at the time of the hearing of the appeal but were considered and repelled in the judgment under review. It is settled that in criminal matters this Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed, or upheld after due consideration and all the relevant circumstances.

3. In the interest of justice and fair play, we have re-examined all the material on the record with the assistance of the learned counsel for the petitioners in the impugned judgment. We do not find any illegality or infirmity in the impugned judgment. We fail to see as how this argument can be regarded as an error patent on the face of the record to justify the reversal of the conclusion which reveal from the consideration of the material on record. Accordingly, said contentions which are devoid of any principle have no substance. The petition has no merit and the same is dismissed. H.B.T./K-4/SC Petition dismissed.