Review of judgment

Petitioner/father had remarried and had a one-year-old child from his second marriage and was employed full-time during the day while also maintaining a private practice in the evenings, leaving him largely unavailable at home

Supreme Court after considering the age, educational continuity, psychological health, children's emotional, medical, and educational continuity in light of their evolving needs, the stability of home environment, and the city of residence of the children and after assessing current circumstances and capacities of the parents, concluded that the best interests of the children, particularly the child with special needs, were best served by remaining in the custody of their mother

No alternative caregiver could fully replicate the intuitive care, emotional constancy and protective environment a mother was uniquely positioned to offer

Fact that mother was a working professional did not detract from her suitability as a custodial parent

On the contrary, it reflected her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children

Supreme Court declined to review its earlier judgment as custody already stood vested with the mother

Review petition was dismissed.

Applicant / plaintiff claimed to be daughter of deceased owner of suit land and his widows were limited owners who had transferred land beyond their entitlement and that land fell in legal share of applicant / plaintiff

Suit filed by applicant / plaintiff was dismissed by Trial Court but Lower Appellate Court allowed her appeal and suit was decreed

In second appeal filed by respondents / defendants Judge in Chambers of High Court set aside judgment and decree passed by Lower Appellate Court

Validity

Power to review can only be exercised for the specific purpose of "correcting any error or supplying any omission" which appears on the surface of the record and can be detected without further elaborate inquiry or investigation

This may apply to accidental or arithmetical mistake due to some forgetfulness not involving a mental process of reasoning or appreciation of any law or the facts already proved or admitted

Judge in Chambers of High Court fell in error while making observations regarding conditional withdrawal of suit and non-payment of cost in the judgment under review while referring to some other suit having no concern with the lis, which had a different subject matter and legal basis

Division Bench of High Court set aside judgment under review as the same suffered from error apparent on the face of record which was so clear and manifest that it could not be permitted to remain on the record

Division Bench of High Court remanded the matter to Judge in Chambers of High Court for decision afresh on appeal filed by respondents / defendants

Review application was allowed in circumstances.

Accused persons sought review of the judgment passed by Supreme Court maintaining conviction and sentence awarded to them

Held, that there was nothing on record to show that accused persons belonged to any proscribed / terrorist organization

None of the prosecution witnesses stated that accused persons were members of any proscribed / terrorist organizations

Complainant failed to produce any proof that accused persons belonged to banned organization

Material facts / evidence were overlooked and could not be properly appreciated at the time of pronouncement of judgment under review, which resulted into grave miscarriage of justice to accused persons

Supreme Court could review its judgment for any sufficient reasons and there were many sufficient reasons to review judgment in question

Supreme Court reviewed its judgment and set aside conviction and sentence awarded to accused persons who were acquitted of the charge while giving them benefit of doubt

Review petition was allowed.

Trial Court instead of deciding the matter of Qazf, left the same to be placed before Almighty Allah on the Day of Judgment

Federal Shariat Court partly allowed appeal filed by petitioner/ex-wife and declared that allegation of Qazf was established against respondent/ex-husband

Federal Shariat Court did not impose punishment of Hadd as Tazkiyat-al-Shuhudwas not done for the witnesses, resultantly punishment was awarded as Ta'zir

Respondent/ex-husband was acquitted by Shariat Appellate Bench of Supreme Court

Petitioner/ex-wife sought review of the judgment passed by Shariat Appellate Bench of Supreme Court

Held, that for enforcing Hadd of Qazf, it is necessary that complainant must not withdraw the complaint

Even silence on the part of complainant amounts to Shubhah (doubt) which becomes an obstacle in the way of enforcing Hadd punishment

Petitioner/ex-wife did not press for punishing respondent/ex-husband, therefore, Hadd could not be enforced

Respondent/ex-husband had already been released after the judgment was announced by Shariat Appellate Bench of Supreme Court

Legitimacy of the child born to petitioner/ex-wife was conclusively established and she was entitled to all legal rights of a legitimate child under Islamic law and law of the land

Child born during subsistence of a valid marriage or within two years after its dissolution, under Article 128 of Qanun-e-Shahadat, 1984 is conclusive proof of legitimacy, provided that the woman remains unmarried after divorce

Act of respondent/ex-husband attracted rules of Qazf, not Li'an

Proceedings for Qazf could not be allowed to continue after the petitioner/ex-wife withdrew from the allegation

Judgment passed by Shariat Appellate Bench of Supreme Court was sustained to the extent of acquittal of respondent/ex-husband

Shariat review petition was allowed accordingly.

After dismissal of petition for leave to appeal filed by another party, petitioner intended to seek review of that judgment of Supreme Court

Validity

It was not open to a person who was a party to proceedings in High Court and was heard there but chose not to assail the latter's decision in the Supreme Court to then turn around and complain on some other party's leave petition, that the same was dismissed without notice to it

Application was dismissed.

When decision (more formally, the ratio decidendi) turns solely on a pure question of law and all the more so when that question is exclusively a matter of statutory interpretation, it is not enough for review petitioner to contend that the interpretation is incorrect

To allow such a ground to be taken would be, in effect, to allow review petitioner to reargue the case

Ground for review would have to be that the decision was per incuriam; it was difficult to conceive of any other reviewable ground being available.

Petitioner was aggrieved of precedent judgments relied upon in judgment under review which were passed prior to declaration of Quadiani Group or Lahori Group as non-Muslims, and the view in the said judgments did not pertain to Muslims

Held, that paragraphs in question were only reproduced as extracts from the referred judgments

With the promulgation of the Constitution of Pakistan, 1973 and more specifically by inserting definitions of "Muslim" and "non-Muslim" in Art. 260(3)(a) and (b), the observations recorded in referred judgments automatically lost their efficacy as well as status

Persons of Quadiani Group or Lahori Group who call themselves "Ahmadis" or by any other name or a Bahai, and a person belonging to any of the Scheduled Castes could not be termed as "Muslim" or class/sect of "Muslim"

High Court directed that the observations recorded in the present review application shall be treated as part of the judgment under review

Review petition was disposed of accordingly.

Applicant / Tehsil Municipal Administration was aggrieved of decision of constitutional petition on the basis of consenting statement made by Law Officer and sought review of that judgment

Plea raised by respondents was that review application was barred by 48 days

Validity

Law Officer was debarred from making a conceding statement before Court, unless written instructions were available with him but it was also mandatory to produce an officer not below the rank of Grade-17 to appear before the Court and verify and reiterate the same

Consent recorded, in the order under review, was detrimental to State exchequer

Such facts escaped notice of High Court and State exchequer was likely to suffer loss

High Court in its inherent jurisdiction could overlook and condone delay to rectify the wrong

Even if there was delay the same was condoned in view of the fact that the Court did not look into the lawful authority of the Legal Advisor to make a conceding statement

High Court set aside judgment passed on the basis of consenting statement of Law Officer

High Court directed the office to fix Constitutional petition for decision afresh on merits

Review application was allowed accordingly.

Petitioners (all the residents of relevant area) were aggrieved of dismissal of appeals which were filed on the basis of compromise on their behalf

Petitioners sought review of dismissal orders on the basis of compromise

Validity

Withdrawal of appeal by representatives if not set aside through review would take judgment of Referee Court to its finality against residents in question, who would get adversely affected by finalization of such judgment

Petitioners seeking review of judgment were residents of the area in question

Review petitioners were 67 in number and none of them had claimed to be non-resident there

Petitioners had a right to be heard at appellate forum as appellants in appeals filed on their behalf in a representative capacity

High Court set aside orders under review and appeals dismissed as withdrawn were restored to their original numbers for decision on merits

Review was allowed accordingly.

Authorities sought review of judgment passed by High Court on the basis of conceding statement made in favour of taxpayer

Validity

Power to review is available in Constitutional jurisdiction, as provisions of Civil Procedure Code, 1908, are applicable

One of the grounds for review under S.114, C.P.C. read with O.XLVII, C.P.C. is mistake of law or fact or ignorance of a settled legal position

By conceding in favour of respondent taxpayer's interpretation, the authority comprised its right of different interpretation by invoking provision of S.122 of Income Tax Ordinance, 2001

High Court directed the authorities to provide fair opportunity of hearing to taxpayer before prescribing next return format and in case proposal was not accepted, reasons would be communicated to respondent in writing

Review application was allowed, in circumstances.

Appellant assailed order passed by the Registrar, Azad Jammu and Kashmir Supreme Court, whereby he had returned his application for review of judgment

Validity

Controversy in the matter was finalized by the Court in the year 2012 whereby the appeal filed by Government was accepted

Appellant thereafter had filed an application under S.42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with O.XLIII, Rr. 1 to 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and had sought review of the judgment, which was dismissed

Appellant had filed another application for review of the judgment and the same was also dismissed

Appellant, filed yet another application for review which was returned by the Registrar on the ground that the application was submitted after a lapse of long time and that the appellant had sought review of the judgment which had attained finality

Held; appellant had agitated same grounds in the review application which had already been resolved by the Supreme Court

Appellant wanted to re-open the case after a pretty long time

Order passed by Registrar was in accordance with law

Appeal was dismissed.

Land allotted to respondents was cancelled by authorities but High Court in exercise of Constitutional jurisdiction set aside orders of cancellation and restored the allotment

Petitioners sought review of judgment on the plea that several factual and legal points escaped notice of the Court

Validity

Power of review could be exercised to correct errors

Main aim of power to review was to prevent injustice from being done by Court

Requirement for invoking review was that an error or mistake which was manifestly floating on face of record, which was patent and if allowed to intact would perpetuate illegality and gross injustice

Authorities allotted land to respondents without considering relevant law which was available in form of notification and without consulting revenue record

Judgment under review was passed merely on non-verified report of concerned Patwari and the same was non-speaking order

When basic order was set aside as declared null and void, all superstructure was also to fall down automatically

High Court reviewed its earlier judgment and set aside allotment order issued in favour of respondents

Review was allowed, in circumstances.

Pakistan Medical and Dental Council Regulations were clear on the subject and fate of an aspirant to appear in fifth attempt after availing of four chances in a Professional Medical Examination had been sealed

Any departure from same, be that by Pakistan Medical and Dental Council or by medical university, was entirely in violation of law and regulations

Scope of review and rearming petition afresh was an exercise which could not be undertaken in review jurisdiction at subsequent stage

While reviewing any judgment, only clerical or arithmetical error or any mistake floating on face of record could be corrected

High Court in exercise of review jurisdiction could not sit as court of appeal against its own judgment and consequently form a different opinion as was sought by petitioner

High Court declined to review its own judgment passed earlier against petitioner

Constitutional petition was dismissed in circumstances.

Provisions of S. 369, Cr.P.C. barred court administering criminal jurisdiction to alter its judgment after it was written, signed and pronounced, except to correct a clerical error

High Court had no jurisdiction to review order passed under criminal appeal jurisdiction

Review petition was dismissed in circumstances.

Judgment passed by High Court under Constitutional jurisdiction in favour of respondent was sought to be reviewed on the plea that respondent concealed the fact of his facing trial under National Accountability Ordinance, 1999

Validity

Constitutional jurisdiction under Art.199 of the Constitution was discretionary jurisdiction meant to foster justice and to remedy wrong

Discretionary relief under extraordinary Constitutional jurisdiction could only be claimed by a person having a bona fide claim and coming to Court with clean hands

Such jurisdiction could not be invoked by a person who had come to Court with un-cleaned hands and likewise no one could be allowed to take advantage of his wrong act

High Court in its inherent jurisdiction had power under Civil Procedure Code, 1908, to review its own order passed in exercise of Constitutional jurisdiction

Respondent obtained judgment in his favour by concealment of material, relevant and important facts

High Court reviewed/recalled its judgment as the same was not implemented till then and dismissed Constitutional petition

Application was allowed in circumstances.

Appointment of Senior Registrar in a hospital was assailed and High Court referred the matter to Appointing Authority for selection in accordance with rules

Petition assailing judgment under review was pending before Supreme Court and meeting of Selection Committee had been convened for selection of not only Senior Registrar but also Assistant Professors

Effect

Opportunity to petitioner and others aspirants to secure a better position than they were vying for, left the petitioner with no grievance or justification to seek review of judgment in question

Petition was dismissed in circumstances.

Review in question was in respect of judgment passed by Lower Appellate Court, which did not fit within the meaning of Arts. 161 & 162 of Limitation Act, 1908, therefore, would fall within the meaning of Art. 173 of Limitation Act, 1908, which provided period of ninety days for review

Review in question was filed within a period of 24 days; therefore, such review was not hit by Art. 173 of Limitation Act, 1908

Review was maintainable, in circumstances.

When judgment is reviewed, it is no more an authority on the subject hence may not be referred to and relied upon to such extent.

High Court under its inherent power could review its judgment or order if it was found to have been passed without jurisdiction or without adjudication on merits in violation of any law or where same was obtained by playing fraud upon the court.

Grounds.

Error which was not self-evident and had to be detected by a process of reasoning, could hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under O. XLVII, R. 1, C.P.C

In exercise of jurisdiction under O.XLVII, R.1, C.P.C, it was not permissible for an erroneous decision to be re-heard and corrected

Review petition had a limited purpose and could not be allowed to be an appeal in disguise.

Suit filed by plaintiff for recovery of damages for malicious prosecution was dismissed in his absence being barred by limitation

Plea raised by plaintiff was that last day of limitation fell during summer vacations and he filed the suit on the first day when Court was reopened, therefore, suit was within limitation

Plea raised by defendant was that when right of appeal was available review was not maintainable

Validity

Mere fact that appeal was competent was no ground for refusing review

Grounds on which review could be sought were enumerated in O.XLVII, R.1, C.P.C.

Review could be filed for rectification of any mistake or error apparent on the face of record

Such mistake or error might be one of law which could be established without elaborate arguments

Error must have also substantial effect on the fate of case and error apparent from the face of record might be corrected without driving a party to appeal

Plaintiff felt no urgency or did not opt to institute plaint during vacations and it did not mean that benefit of S.4 of Limitation Act, 1908, was wiped out which was always a beneficial provision in nature and plaintiff could not be non-suited

High Court recalled its judgment and decree and restored the suit to its original position

Review was allowed in circumstances.

Petitioner was employee of police who was convicted and sentenced in two different cases one for keeping illegal arms and other for accepting illegal gratification

Convictions and sentences awarded by Trial Courts in both the cases were maintained by High Court

After lapse of about five years, petitioner sought review of judgments passed in criminal cases and authorities reinstated him in service

Validity

Any police officer sentenced judicially by competent court of law to rigorous imprisonment exceeding one month should be dismissed from service, provided such sentence was not quashed on appeal or revision

Criminal appeals filed by petitioner in High Court were dismissed in years 2002 and 2004 respectively and no appeal or revision was pending before any appellate or revisional forums on 9-5-2009, when he was re-instated in service

No occasion was left with police authorities to reinstate petitioner in service

Review petitions were filed on 16-4-2009, by petitioner after an unexplained delay of about five years, just to create ground for his reinstatement in service, which smacked mala fide on the part of petitioner and concerned police authority

High Court declined to interfere in convictions and sentences awarded to petitioner

Petition was dismissed in circumstances.

No provision is available for review of any judgment or order under Criminal Procedure Code, 1898, yet while exercising inherent jurisdiction under S.561-A, Cr.P.C. High Court has ample power to correct its own orders or to recall an erroneous order

Criminal court can only review or recall its judgment and order, if it is satisfied that earlier order/ judgment is either without jurisdiction or against mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provision of law and if such order / judgment is left intact, it would result in perpetration of manifest injustice.

When appeal was filed by the party challenging the order, then no application for review could be entertained against the said order.

Aggrieved party, on account of some mistake or error, apparent on the face of the record, or for any other sufficient reason, might apply for review of the judgment to the court, which had passed the decree or made the order

Law has placed an embargo on the 'aggrieved person' to the effect that he could only file an application for revival if no appeal was provided from the order sought to be reviewed or if appeal was provided but no appeal had been preferred.

Suit for redemption of mortgaged property was partially decreed by Trial Court in favour of plaintiff but Lower Appellate Court allowed the appeal of defendants and dismissed the suit

Lower Appellate court, on application by plaintiff, reviewed its judgment and decreed the suit in favour of plaintiff

Validity

Mutation dated 15-3-1945 was mentioned and the same was duly produced in evidence but it escaped notice of Lower Appellate Court

Such was a mistake and error apparent on the face of record, which resulted into a judgment against plaintiff and dismissal of his suit, causing grave miscarriage of justice

If entry in revenue record, floating on the record, was earlier considered by Lower Appellate Court, the result would have been different­

Provisions of S.114 and O.XLVII R.1, C.P.C., conferred a statutory right on the party aggrieved from order or judgment of court, significance of which could be seen from the fact that it had made a substitute of right of appeal, as well and the same could not be taken lightly, when a substantial right of a party was involved

Lower Appellate Court had committed no illegality or any material irregularity in exercise of its review jurisdiction for rectifying its own error

High Court declined to interfere in the order passed by Lower Appellate Court in exercise of review jurisdiction

Revision was dismissed in circumstances.