2001 SCMR 1135 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.--The titled but unnumbered Constitutional petition has been filed by Haq Nawaz convict petitioner against this Court's judgment dated 16-12-1999 passed in Criminal Review Petition No.2 of 2000 in Criminal Appeal No. 175 of 1999 filed by the convict-petitioner Haq Nawaz against his conviction for Qatl-e-Amd and sentence of death awarded to him by the Special Court, Suppression of Terrorist Activities, Lahore and upheld by the Lahore High Court, vide judgment dated 12L3-1999, while Criminal Appeal No. 176 of 1999 was filed by the State against the acquittal of his co-accused, namely, Zakiullah and 4 others respondents therein.

2. The facts of the case are that the petitioner was tried alongwith the acquitted accused, Zakiullah and 4 others, Riaz Basra and Javed Iqbal (the last mentioned two accused were declared absconders) on the charges of Qatl-e-Amd and were tried in absentia under sections 302/ 120-B of the P.P.C. and section 3 of the. Explosive Substances Act, 1908, before the Special Court (Suppression of Terrorist Activities), Lahore (hereinafter to be referred to as 'the STA Court'). The petitioner was convicted under section 302, P.P.C. and awarded death penalty. He was also convicted under section 120-B, P.P.C. and sentenced to 7 years' R.I. He was further found guilty under section 3 of the Explosive Substances Act, 1908, and was awarded death penalty and his entire property was ordered to be forfeited. The two appeals one by the petitioner and the other by the State were heard together by a learned Appeal Bench of this Court and, as stated earlier, were dismissed by a consolidated judgment.

3. Feeling dissatisfied, the convict petitioner filed the titled Criminal Review Petition No.2 of 2000 in Criminal Appeal No. 175 of 1999, which was also dismissed vide order 13-9-2000.

4. Mr. Rasheed Murtaza, learned A.S.C. appearing in support of this Constitutional petition which in essence is a second Review Petition invited our attention to the observations made by Muhammad Munir, C.J. (as his Lordship then was) replying to the welcome address by the Advocate -General, Punjab, and the President of High Court Bar Association. We can do no better than quote from the address of his Lordship who tendered the following advice to the members of the legal fraternity:-- "A few months ago, a representative of an important British firm asked me for an interview. He represented a firm of soap manufacturers and since the-gentleman was not previously known to me and I could discover no possible connection between soap and as Chief Justice of a High Court, I was somewhat surprised at the request. When the gentleman came in, he told me that his firm intended to invest several million pounds in business in Pakistan, and that he had instructions from his principals to see things for himself and to ascertain and report what the future judicial system in Pakistan was going to be and whether the administration of justice was going to be handed over to Qazis. His firms he said, could only invest if the present system did not undergo any fundamental change, I told him that he had come to the wrong quarters for information so far as the first part of his inquiry was concerned but as regards the latter part of the inquiry I took the opportunity to point out to him that he was mistaken in his opinion of the Qazis because these functionaries in the early days of Islam were a model of ability, rectitude and fearlessness. The western system produced on a Gascoigne who sent the Prince of Wales who subsequently became Henry V, of the King's Bench Prison, when he attempted to interfere in the interest of his favourite servant but the Muslim history of administration of justice teems with instances where the Qazis delivered and the Sovereigns resignedly accepted verdicts against their favourite nobles, their own kinsmen and wives and against themselves on the complaints of the humblest of these subjects. On occasions like the present, we have more than once been reminded of the traditions of one Court or another or of a precedent or standard set by this Judge or that. For my a part I would like to go back a thousand year and take my lessons in justice from those whom favour never tempted and fear never deterred while they were engaged in dispensing justice between man and man or between man and Severeign. "

5. The observations reproduced above have been and are being well taken of. Notwithstanding the above those observations have no bearing on the facts of the instant case and are not at all going to help the learned counsel.

6. Mr. Rasheed Murtaza, learned A.S.C. then placed reliance on following 3 cases; (i) Raja Khan v. Crown PLD 1950 FC 18, (ii) Aminullah v. State PLD 1967 SC 629, (iii) Ghulam Nabi v. Farrukh Lateef and 2 others 1987 SCMR 608 and (3) Zulfiqar Ali Bhutto v. State PLD 1979 SC

741. Last mentioned precedent was a case of Criminal Review filed under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973, read with rule 1 of Order XXIV of Supreme Court Rules, 1956 and Order XXLIII of the Civil Procedure Code (V of 1908). There is no cavil with the proposition laid down in the case of Zulfiqar Ali Bhutto (supra). In the above precedent the words "apparent on face of record" were construed to be "so manifest and so clear which could not be permitted by any Court to remain on the record"; and that such error may be an error of fact or of law and must be self-evident and floating on the surface and not requiring any elaborate discussion or process of rationalization. In point of fact the above three authorities do not help the learned counsel for the petitioner, who had pleaded that if exposition of law was incorrect or erroneous, 6r that Court had gone wrong in application of law and facts of a particular case, or that erroneous inferences had been drawn as a result of reappraisal or appreciation of evidence which do not constitute valid grounds for review. In any case the learned counsel could not point out that the impugned orders were based on erroneous assumption of material facts, or were recorded without adverting to a provision of law, or a 'departure was made from undisputed construction of law and Constitution or, the error was apparent on the face of the record.

8. The learned A.S.C.; however, in support, of the proposition urged that in Islamic. dispensation of justice any number of review petitions were competent. In support of this proposition he could not produce any authority from the Injunctions of Islam or of the Sunnah of the. Holy Prophet. We are, therefore, unable to accept the proposition that under Islamic law any number of review petitions are maintainable.

9. Mr. Riaz ul Hassan. Gillani, learned A.S.C., assisting this Court as Amicus Curiae, supported Mr. Rasheed Murtaza that under the Islamic dispensation of justice any number of review petitions were maintainable and referred to the following quotations from. The English version of the above direction is as under:-- "A recent judgment given by you shall not prevent you from returning to the truth when you have reconsidered the whole case and you have been guided to the correct opinion for justice is primeval and it is better to retreat to justice than to persist in injustice. "

10. We are, however, of the considered view that for the application of the above exposition of Islamic Law, there must be two conditions precedent. (1) On re-consideration of -a given case the Court can infer that certain injustice is apparent on the face of the record and; (2) that the similar social conditions of the society must be such as were prevalent during the days when the above-quoted direction was made. At this juncture of our national life we are the serious victims of moral crisis. In this view of the matter, if the last mentioned proposition is conceded then we would be playing havoc with our judicial system which is already tottering on the brink of demolition. With regard, we are of view that unless our society comes up to moral standards of those days, the aforementioned exposition of Islamic Law does not hold any water.

11. Mr. Tariq Mehmood Khokhar, learned Additional Advocate -General, Punjab also relied upon the case of Zulfiqar Ali Bhutto (supra) to contend the review proceedings are neither in the nature of a re-hearing of the whole case, nor is it an appeal against the judgment under review and that it is accordingly not permissible to embark upon reiteration of the same contentions as were advanced at the time of hearing of the appeal, but were considered and repelled in the judgment under review in an effort to discover errors said to be apparent on the face of the record.

12. The contentions raised by learned counsel for convict-petitioner essentially relate to the re-appraisal of evidence which could not generally furnish a ground for review and certainly for the second review petition even in the garb of a Constitutional petition. Suffice it to say that all the evidence had collectively pointed to the guilt of the petitioner which conclusion had no material effect by the so-called discrepancies in the statements of the witnesses.

13. In these circumstances, we do not find any merit in this Constitutional Petition/Second Review Petition which is accordingly dismissed. N.H.Q./H-36/S Petition dismissed.