1994 PLP 492 (SCMR)

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, OXXVI, R. 1‑‑‑Review of Supreme Court judgment‑‑‑Supreme Court while deciding appeal had overlooked the fact that statement of witness in question, was disbelieved by Trial Court and no weight was given to it by the High Court‑‑‑Such aspect having been overlooked by Supreme Court constituted an error patent on the face of the record‑‑‑Case would require reconsideration, which could be done appropriately only after hearing counsel for all the parties concerned‑‑‑Order of Supreme Court (impugned) was recalled with direction that appeal would be heard on merits after notice to respondents. Q. M. Salim, Advocate instructed by Tanvir Ahmad, Advocate‑on -Record for Petitioner. Nemo for Respondents. Date of hearing: 28th November, 1993. NASIM HASAN SHAH, CJ.‑‑‑This is a petition for Review of this Court's order dated 17‑4‑1993 passed in Criminal Appeal No.23 of 1992.

2. In this case leave to appeal was granted by this Court to consider whether the High Court was right in altering the conviction of Arshad Ali (respondent No.l) who stood convicted under section 302, P.P.C. to section 304, Part 1.

3. On the date fixed for the hearing of the appeal, namely 17‑4‑1993 neither the learned senior counsel for the appellant nor the A.O.R. was present and the appeal was decided after hearing learned counsel for the respondents and the perusal of the record. It was observed that the complainant did not appear to be interested in the matter as they were not vigorously pursuing this appeal which was evident from the fact that no one had appeared before the Court to prosecute the matter.

4. Learned counsel for complainant has explained that this observation is based on a misconception because the complainant was indeed pursuing the appeal with due diligence. The reason why no counsel on his behalf appeared on the date of hearing was that information about the fixation of the case was received late in the night of the 15th April, 1993. The next day, namely, 16th April, 1993 was Friday and despite frantic efforts to obtain a P.I.A. seat from Lahore to Islamabad for the 17th morning it was not possible to do so. An adjustment form was accordingly faxed at 8‑45 a.m. on 17‑4‑1993 for an adjournment of the case for the aforesaid reason. On merits it is submitted that this Court had upheld the order of the High Court on the ground that Mst. Zohra was the mother of Arshad Ali appellant and had appeared as DW‑

2. In her statement she gave the background of how quarrel started and the injuries inflicted. On the basis of her statement the High Court was justified to convert the sentence from section 302, P.P.C. to section 304, Part I, P.P.C.

5. It is submitted that the statement of Mst. Zohra DW‑2 had been disbelieved by the trial Court and that no weight was given to it by the High Court. This aspect, it is submitted, had been overlooked by this Court and that this was an error patent on the face of the record. We feel that the case does require re‑consideration. This can be done appropriately only after hearing learned counsel for all the parties concerned. This Review Petition is, therefore, allowed. The order of this Court dated 17‑4‑1983 is recalled. The appeal shall now be reheard on merits, after notice to the respondents. Meanwhile the respondent No.l shall not be released by the Jail Authorities. A.A./B‑224/S Review allowed.