1999 PLP 1273 (YLR)

This is a petition under section 42‑D of the Interim Constitution Act read with Azad Jammu and Kashmir Supreme Court Rules, 1978 and section 42‑A(1) of the Interim Constitution Act and has been placed before me under section 42(13) of the Interim Constitution Act vide my order, dated 2‑4.‑1999, as difference of opinion has arisen between the learned members of the bench consisting of my brothers Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi.

2. The brief facts resulting in the application are that an occurrence took place at about 11.00 p.m. during the night intervening between 21st and 22nd of July, 1991. Initially, a case was registered under section 15 of the Islami Tazeerati Qawaneen' Nifaz Act as 'one, Sooba, was grievously injured; subsequently, he died on 24th July, 1991, whereupon section 5 of the Islami Tazeerati Qawaneen Nifaz Act was added to the charge‑sheet and after investigation, a challan under section 5 of the Islami Tazeerati Qawaneen Nifaz Act read with section 34, A.P.C., was filed in the Additional District Criminal Court, Kahuta, on 3‑3‑1993. After the conclusion of the trial, the Additional District Criminal Court, vide its judgment, dated 3‑11‑1993, awarded the death sentence to the petitioner. An appeal was preferred to the Shariat Court which was dismissed on 2‑6‑1997; the appeal filed by the petitioner before this Court was also dismissed vide the judgment under review, dated 19‑6‑1998, and the sentence of death awarded to the convict petitioner was maintained. On 11‑7‑1998, an application was moved by Mst. Noor Jahan, the eldest daughter of Sooba, deceased, before the Additional District Criminal Court, `Kahuta, duly supported by her affidavit, alleging therein that Sooba, deceased, who was murdered by the convict -petitioner is survived by her and Mst. Shah Jahan. It was stated in the application that she was major and had pardoned the convict -petitioner for the guilt of murdering her father whereas Mst. Shah Jahan being minor was incompetent to forgive him. It was prayed in the application that as there was no other legal heir of Sooba, deceased, the conviction of the petitioner might be changed to life imprisonment after recording the statement of Mst. Noor Jahan. On 11‑7‑1998, the trial Court recorded the statement of Mst. Noor Jahan wherein she deposed that her father had been murdered by the convict- petitioner, N4isri Khan, who was awarded the sentence of death by the trial Court which was confirmed by the appellate Courts including this Court but she, in the name of God, had pardoned his guilt. She was identified in the Court by one Ch. Muhammad Din son of Ch. Lal Din, resident of village Changer, Tehsil Haveli. The trial Court, vide its interim order, dated 11‑7‑1998, observed that Mst. Noor Jahan, the eldest daughter of Sooba, deceased, had pardoned the guilt of the convict‑petitioner in the name of God; however, her application was dismissed on the ground that the conviction and sentence of the petitioner had been finally upheld up to the Supreme Court. Thereafter, the present application to this Court was filed on 17‑7‑1998 wherein, after narrating the facts of the case, it was prayed as under:‑ "

9. It is, therefore, prayed that the petition for review of the judgment, dated 19‑6‑1998 may kindly be accepted and in view of the statement of one of the legal heirs of deceased, death sentence may be substituted for any other sentence with benefit of section 382‑B. Alternatively, it is prayed that under inherent powers, as conferred on this Court under section 42(a) read with Supreme Court Rules, compromise may kindly be accepted and sentence awarded by the Court may be substituted. Any other relief admissible under law may also be granted."

3. As has been stated earlier, initially the application was placed before the bench consisting of my brothers Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi for hearing and disposal. As stated above, a difference of opinion has arisen between the learned members of the bench: Mr. Justice Basharat Ahmad Shaikh expressed the view that as the pardon was given to the convict‑petitioner after the final disposal of his appeal by this Court, the relief prayed for cannot be granted to him either in exercise of review jurisdiction or in exercise of inherent powers of this Court, whereas Mr. Justice Muhammad Yunus Surakhvi accepted the review petition and opined that in view of the pardon given to the convict‑petitioner by one of the heirs of the deceased, his sentence should be converted into that of payment of 'diyyat' to the surviving heir.

4. I have heard the arguments and perused the file. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the petitioner, has stated at the very outset that he would not press that the relief sought by the petitioner, herein, could be granted to him in exercise of review jurisdiction rather he conceded that as the judgment passed in appeal by this Court did not suffer from any mistake apparent on the face of record, the same could not be reviewed. However, the learned counsel has maintained that in the circumstances of the case indicated above, this Court has wide powers to give relief to the convict‑petitioner under section 42‑A(1) of the Interim Constitution Act and Rule 5 of Order XLIII of the Supreme Court Rules. The learned counsel has maintained that the provisions contained in section 42‑A(1) of the Interim Constitution Act postulate that the relief can be given by this Court in exercise of its inherent powers ' in any case or matter pending before it'. Thus, he has maintained that although the review petition is not competent, yet the same would be deemed to be a 'matter pending before the Court' for the purpose of section 42‑A(1) of the Interim Constitution Act. The learned counsel has contended that the relief sought can be granted in exercise of inherent powers. The learned counsel has maintained that if in an appeal, revision or review, this Court cannot give a relief due to some legal hindrance, the inherent powers can be resorted to for the redressal of the grievance of an aggrieved person. Thus, the learned counsel has submitted that as one of the legal heirs has given pardon to the petitioner, herein, after the final disposal of his appeal by this Court, this is a fit case to grant relief to him in exercise of the inherent powers. The learned counsel has cited following authorities in support of his contentions:‑‑ In case reported as Khushdil v. The State (PLD 1981 SC 582), the facts were that the petition for leave to appeal was granted in respect of three convicts‑accused only to the extent of examining the adequacy of their sentences while in respect of fourth accused convict, the leave was granted to examine the question of his conviction; subsequently, a review petition was filed that question of the conviction of three accused‑convicts might also be considered, because the decision regarding the conviction of the fourth convict was likely to affect the conviction of the said three convicts. While dealing with the question of competency of the review petition, it was observed that the contention of the counsel for the petitioner that the points which he wanted to agitate in the review petition could not be agitated properly by him at the time of arguments in the petition for leave to appeal, was no ground for filing a review petition. However, it was opined that in view of Articles 185(3) and 187 read with Supreme Court Rules, 1956, the Supreme Court was competent to deal with the question of conviction of aforesaid three convicts, despite the fact that leave was not granted in that regard. In case reported as The State v. Muhammad Nawaz (PLD 1966 SC 481), seven persons were convicted and sentenced by the Sessions Judge while some others were acquitted. The convict‑accused filed a petition for leave to appeal whereas the State filed a petition for leave to appeal against those who were acquitted. Both the petitions for leave to appeal. were granted by the single order. However, subsequently, it was contended on behalf of the acquitted accused that the petition for leave to appeal filed by the State was time‑barred and, thus, was liable to be rejected. The Supreme Court came to the conclusion that the acquittal order passed by the High Court was patently illegal. It was under these circumstances that the Supreme Court resorted to its inherent powers to do 'complete justice' regarding acquitted accused. It may be observed here that the Supreme Court had already issued show‑cause notices to the acquitted accused while allowing the petition for leave to appeal filed by the State. In case reported as The State v. Muhammad Nazir Khan (PLD 1983 SC (AJ&K) 1), a petition for leave to appeal was filed against the order of the High Court alleging that the sentences awarded to the accused‑respondents were inadequate. Subsequently, it was found that the petition for leave to appeal was filed without the authority of the Government and if the period of limitation was reckoned from the date when the Government accorded sanction to file the petition, the petition was barred by two clays. It was observed that as the petition to file the appeal had been granted, the delay in filing the same would be deemed to have been condoned. Subsequently, the State wanted to withdraw the appeal but its request was turned down observing that the Court was empowered to decide the appeal on merits, irrespective of the prayer of withdrawal of appeal by the State. While dealing with the question of sentences awarded to the accused‑respondents, the same were held to be adequate. However, the sentence of one of the accused persons, Muhammad Amir Khan, was set aside in exercise of powers under section 42‑A of the Interim Constitution Act read with Rules 4 and 5 of Order XLIII of the Supreme Court Rules, despite the fact that he had not filed any appeal against his conviction. In case reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.‑W.F.P. (PLD 1995 SC 66), while dealing with the question as to whether the Court, while hearing the appeal under a statute has the jurisdiction and power to decide the question of vires of a statute under which the appeal had arisen. It was held that the Supreme Court was competent to go into the vires of the relevant statute itself under its inherent powers. It was observed that while doing complete justice formalities and technicalities should not fetter the power of the Court and an ancillary relief, within its jurisdiction depending on the facts and circumstances of the case, can be granted by the Court. It was further observed that Article 187 of the Constitution does not confer any jurisdiction rather it recognizes inherent powers of apex Court to do complete justice and issue orders and directions to achieve that end. In case reported as Nazak Hussain v. The State (PLD 1996 SC 178), it has been observed that review of an order in criminal proceedings is possible if an error is apparent on the face of record and on no other ground. Thus, it was observed that the question of compounding the offence after the rejection of petition for leave to appeal, cannot be raised by way of review after the expiry of period of limitation.

5. In reply, Raja Shiraz Kayani, the learned Advocate‑General, has controverted the arguments advanced by the learned counsel for the petitioner and has argued that as according to the learned counsel for the petitioner, the review petition was not competent, the inherent jurisdiction of this Court cannot be pressed into service; because under section 42‑A(1) of the Interim Constitution Act, it is necessary that a 'case or 'matter' must be pending before this Court before exercising the inherent powers.

6. I have given due consideration to the matter. As has been stated earlier, in view of the arguments advanced by the learned counsel for the petitioner, the only question which needs resolution is as to whether the relief sought by the petitioner can be given in exercise of inherent powers of this Court envisaged under section 42‑A(1) of the Interim Constitution Act and Rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules. For elucidating the matter, the abovementioned provisions are reproduced as under:‑‑ Section 42‑A(1) of the Interim Constitution Act: "The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document." Rule 5 of Order XLIII of the Supreme Court Rules: "Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. " It is evident from section 42‑A(1) of the Interim Constitution Act that before a relief could be given to an aggrieved person, it is necessary that a matter or case should be pending before this Court. Admittedly, the pardon was given to the convict‑petitioner after the final disposal of his appeal by this Court when no case or matter was pending. The learned counsel has tried to wriggle out of the difficulty by arguing that although the review petition was not competent yet for the purpose of invoking the inherent jurisdiction; the same would be deemed to be pending before this Court within the meanings of section 42‑A(1) of the Interim Constitution Act. The learned counsel has vehemently argued that the principle enunciated in cases reported as Khushdil v. The State (PLD 1981 SC 582) and The State v. Muhammad Nawaz (PLD 1966 SC 481), referred to above, is applicable to the present case. It may be stated that as is evident from the reports of the said cases, briefly mentioned above, the facts of those cases are distinguishable from the facts of the present case. In those cases, it could be safely said that the 'case' or 'matter' was pending before the Court but in the instant case it cannot be said that although the review petition was not competent, yet that must be deemed to be pending for the purpose of invoking the inherent jurisdiction of the Court so as to satisfy the condition for exercising inherent powers envisaged under section 42‑A(1) of the Interim Constitution Act. It is paradoxical to argue that no review petition was competent in the instant case but the same should be deemed to be pending for the purpose of section 42‑A(1) of the Interim Constitution Act. It may be observed that only that matter or case can be treated to be pending before the Court which has come up before this Court in pursuance of the mode recognized by the Constitution or an Act of the Legislature. In the instant case, when it is admitted, that the review petition was not 8 competent, it would be paradoxical to argue that the inherent powers can be invoked merely because an incompetent review petition was filed. If we accept the contention of the learned counsel for the petitioner then it would follow that an aggrieved person may seek a remedy by filing an appeal, revision or review which is not permitted by law and thereafter can argue that although the mode adopted by him was not permissible under law yet he can be given relief under inherent powers; because an illegal mode adopted by him had satisfied the condition precedent for exercising the inherent powers. This would tantamount to misuse the process of the Court and cannot be regarded as a compliance of section 42‑A(1) of the Interim Constitution Act. Therefore, I am of the view that when finally the appeal of the convict‑petitioner was disposed of by this Court and the review petition, according to the case of the petitioner himself, is not competent, then this Court is functus officio and is not competent to consider the matter of the sentence awarded to the petitioner, because afterwards a compromise was entered into by the parties.

7. Even otherwise, it is well‑settled principle of law that inherent powers can be invoked only if there is no express provision in law to cover a particular eventuality or the mode adopted for the redressal of a grievance is not prohibited by the statute. Under Rule 1, Order XLVI of the Supreme Court Rules, a judgment or an order in a criminal case can only be reviewed if it suffers from a defect which is apparent on the face of it and not otherwise. Therefore, it cannot be said that the judgment which cannot be changed by exercising the review jurisdiction, the same can be changed in exercise of inherent jurisdiction of the Court; otherwise, this would imply that inherent powers could be exercised in derogation to the rules. Before parting with the case, it may be observed that it is necessary that proper legislation is made to avert the difficulty like the one in the present case by providing a forum for dealing with the cases‑like the one in hand. In the light of what has been stated above, finding no force in this review petition, the same is hereby dismissed. H.B.T./406/SC(AJ&K) Petition dismissed.