2019 PLP 774 (CLC)

RAJA SAEED AKRAM KHAN, J.

The captioned review petition has been filed for review of the judgment of this Court dated 15.11.2018, whereby the appeal filed by the petitioner, herein, has been dismissed.

2. The brief facts forming the background of the case are that vide judgment dated 07.03.2007, the brother of the petitioner, herein, namely, Arshed Mehboob, was convicted and awarded death sentence as Qisas under section 302(a), A.P.C. by the Additional District Court of Criminal Jurisdiction, Rawalakot. The judgment of the trial Court remained intact up to this Court. Thereafter, the Superintendent Central Prison, Mirpur, wrote a letter to the Additional District Court of Criminal Jurisdiction, Rawalakot, on 05.12.2007, for issuance of black warrants in order to execute the death sentence. It was alleged by the petitioner that he, along with other relatives went to meet Arshad Mehboob, convict-prisoner, whereupon, it revealed that due to long incarceration and hardships of prison, he has become completely insane and lunatic. He was even unable to identify the petitioner and other relatives. In this situation, he along with other relatives moved an application to the Superintendent District Prison, Mirpur on 11.01.2018, for treatment of convict-prisoner under the Prison Rules, however, despite the aforesaid application needful was not done rather the death warrants bearing No.110, dated 22.02.2018, was issued by the Additional District Court of Criminal Jurisdiction, Rawalakot for execution of death sentence. The petitioner, herein, filed a writ petition before the High Court with the prayer to issue direction to the respondents for treatment of the convict-prisoner which was dismissed and the appeal before this Court also met the same fate, hence, this review petition.

3. Sardar Abdul Hameed Khan, Advocate, the learned counsel for the petitioner argued that this Court while passing the judgment under review has not appreciated the contents of medical report which is an error apparent on the face of record. He also added that reconciliation process between the parties is in process and hopefully the matter will be compromised. In support of this contention the learned counsel referred to an affidavit given by one, Altaf Hussain. A query was made to the counsel for the petitioner that in the appeal he was not counsel and under the provisions of Order XLVI, Rule 6, of the Azad Jammu and Kashmir Supreme Court Rules, 1978, except with the permission of the Court no petition shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case. He submitted that he was conscious about the statutory provision, this is way, he has filed an application for seeking permission to draw the review petition. The learned counsel also submitted that he and Mr. Babar Ali Khan, Advocate, who argued the appeal, were jointly engaged in the case, therefore, the provisions of Order XLVI, Rule 6 are not attracted in the instant case.

4. We have heard the arguments and perused the record made available. In the case in hand admittedly, at the time of hearing of the appeal, in which the judgment sought to be review was passed, the counsel representing the petitioner, herein, was not appeared and argued, whereas, under the provisions of Order XLVI, Rule, 6 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, except with the special leave of the Court no petition shall be drawn by any Advocate other than the Advocate who appeared at the time of hearing of the case in which the judgment or order, sought to be reviewed, was made. The learned counsel for the petitioner stated at bar that in this regard an application has also been filed for seeking permission. The record shows that review petition was filed on 12.12.2018, in which the office has reported that: "This civil review petition from the judgment of this Apex Court dated 15.11.2018 has been filed by Sardar Abdul Hameed Khan, Advocate. The learned Advocate was not counsel for the petitioner in the Appeal No.268/2018. Moreover, he has not got prior permission of the Hon'ble Court for drawing the instant review petition...." The record shows that after the report (supra) made by the office, the application for permission to draw the review petition has been filed on 13.12.2018, just to cover-up the legal requirement. Thus, it becomes clear that the review petition has been drafted. without complying with the mandatory requirement of Order XLVI, Rule 6 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, which is not maintainable. The learned counsel for the petitioner during the course of arguments submitted that the reconciliation process between the parties is in progress and in support of this contention he referred to an affidavit, sworn in by one, Altaf Hussain. When the learned counsel was confronted; whether the said, Altaf Hussain, who filed the affidavit, falls in the legal heirs of the deceased, he submitted that he is not the legal heir of the deceased rather he is one of the close relatives of the complainant party. We are afraid, how on the strength of the affidavit of such a person, who is stranger to the Court proceedings, claimed relief can be granted to the petitioner when nothing has come on the record from the legal heirs of the deceased. Even on merits, the review petition has no substance as the counsel for the petitioner only stated that the contents of medical report have not been appreciated by this Court while handing down the judgment under review, whereas, the perusal of the judgment shows that this Court after thorough appreciation of the contents of the medical report, has recorded the findings in paragraph No.5 of the judgment. It appears that this review petition has been filed without any valid ground just to prolong the matter which is against the settled principle of administration of justice. Resultantly, this review petition stands dismissed with no order as to costs. SA/13/SC(AJ&K) Review petition dismisse