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Petitioner: FAIZ ALI SHAH VS Respondent: THE STATE
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh Title: FAIZ ALI SHAH vs THE STATE Case No.: Criminal Review Petition No,1 of 1987 Date of Judgment:1989-03-19 Reported As: PLD 1989 Supreme Court (AJ&K) 61 Result: Petition dismissed
Judgment ORDER ' This is a review petition filed by convict Faiz Ali Shah who stands sentenced to the penalty of death under section 302 of Penal Code. He was sentenced to death by the Sessions Judge Kotli but was acquitted by the High Court. The State brought an appeal to this Court against the aforesaid acquittal order which was set aside and Faiz Ali Shah was sentenced as aforesaid. A number of grounds were sought to be raised in the review petition but the learned counsel appearing for the convict Mr. Abdul Rashid Abbasi has confined his submissions to the points which will be disposed of by this Order. The point enumerated in para. 2(e) of the review petition was abandoned through an application submitted on 13-8-1987 and permission to do so was duly granted on the same day. 2. While making submissions the learned counsel for the petitioner recognised the legal position that the powers of review under Order XLVI, Rule 1 of the Supreme Court Rules are limited in nature inasmuch as the power of review can only be exercised if it is found that while recording the order sought to be reviewed some errors apparent on the face of record crept into it. It is well-settled that only that mistake will fall within the mischief of this term which is so manifest and so clear that to keep such an error on the record may perpetuate visible injustice. The error may be of fact or law but it must be an error which is self-evident and does not require any elaborate discussion. The learned counsel, therefore, tried to conform his submissions to this legal requirement. 3. The first point urged in support of the review petition is that the State appeal filed in this Court was invalid because the copy of the grounds of appeal before the High Court had not been attached with the petition for leave to appeal as is required by rule 3(1) of Order XIII read with Order XXIII rule 1 of the Supreme Court Rules. It is contended that the provision is mandatory in nature and its violation entails dismissal of the petition for, leave to appeal. He seeks support from
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'Government of Pakistan': and another v. Tariq Hussain Farooqui and 3 others' (PLD 1984 SC (AJK) 47), in which it has been held that rules 1 and 2 of Order XIII mentioned above are mandatory. He submitted that when the learned Advocate-General filed petition for leave to appeal from the acquittal order of the High Court it did not carry with it the memorandum of appeal before the High Court. The office drew attention of the Advocate-General to this effect on 18-11-1985 but no immediate action was taken by him and five adjournments were prayed for and granted for this purpose. Certified copy of the grounds of appeal was filed in the Registry on 2-1-1986 when period of limitation had long before expired. This did not come to the notice of the present petitioner, probably because he was not represented by a counsel, and consequently this point was not raised at the time when the petition for leave to appeal was granted on 28-11-1986. It was for the first time on 10-12-1986 that this point was raised in the concise statement filed on behalf of Faiz Ali Shah who was respondent in the appeal. As pointed out by Mr. Abdul Rashid Abbasi, no application for condonation of delay or for seeking exemption of relevant rules was filed on behalf of the State. The learned Judge who decided the appeal by the order now sought to be reviewed, was pleased to exercise powers under Order XLIII rules 1 and 5 and in order to meet the ends of justice excused the State from the requirements of Order XIII read with Order XXIII of Supreme Court Rules. 4. The learned counsel for the petitioner has contended that in order to take advantage of rule 1 of Order XLIII a party must file an application that it may be excused from compliance of any of the requirements of the rules and this application has to be submitted before the Registrar of this Court who has in turn to take the directions of the Court and communicate the same to the parties. He also strongly relied on rule 1 of the said Order and submitted that relaxation of rules can only be ordered if sufficient cause is shown. He also contended that before passing such an order the other party which is to be adversely affected has to be given an opportunity of meeting the grounds enumerated in the petition praying for relaxation of rules. The petitioner's counsel submitted that it is apparent on the face of the record that there was no application for relaxation of rules nor indeed any cause was ever shown to the Court as required by rule l. According to him, failure to notice law has always been held to be a good ground for reviewing an order. In this connection he relies on 'Mehr Muhammad Sarwar and others v. The State and others' (PLD 1985 SC 240). He also cited 'Messrs Sajjad Nabi Dar & Co. v. The Commissioner of Income-Tax, Rawalpindi Zone, Rawalpindi (PLD 1977 SC 437), 'Faqir Muhammad Khan v. Mir Akbar Shah' (PLD 1973 SC 110) in order to show that review power should be exercised where the Court has failed to notice law or to follow a binding judgment. He also stated that the error under discussion conforms to the requirement as laid down in Sabir Hussain's case (PLD 1989 SC AJK 1) by Mr. Justice Raja Muhammad Khurshid Khan, C.J. That in order to form a ground for review "error may be of a fact or law but it must, however, be an error which is self-evident and does not require any elaborate discussion". 5. I have no hesitation in agreeing with the learned counsel for the petitioner. It is clear that the power available to this Court under rule 1 of Order XLIII is dependent on the existence of sufficient cause which must be shown to the Court before this power can be exercised and I hold accordingly. I also hold that rules 1 and 2 are interdependent, therefore, power under rule 1 cannot be exercised without a proper application. Since no application was moved on behalf of the State and no cause was shown for its failure to file the requisite copy within the period of limitation, this part of the order is vacated. 6. However, while condoning the above referred non-compliance the learned Judge also pressed into service rule 5 of Order XLIII, apart from rule 1. Rule 5 reads as follows:- "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."
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7. The rule opens with the non-obstante clause and lays down that nothing in the Supreme Court Rules shall be deemed to affect the power mentioned in this provision. The wording of the rule shows that the inherent powers of the Court can be exercised in supersession of all other provision- s contained in the rules and the requirements of showing sufficient cause or moving a proper application by the concerned party will not apply while exercising powers under rule 5. In fact this provision overrides the other provisions and seems to have been incorporated so that in an unforeseen situation the ends of justice may not be defeated for want of a legal provision or, as the case may be, if it becomes .Necessary to prevent the abuse of the process of the Court. The petitioner's counsel has agreed that no application is necessary so far as rule 5 is concerned but he has taken pains to explain that inherent powers of the Court cannot be exercised to override the provision which exists for a specific purpose and, in any case, not to defeat the ends of justice. His contention is that this provision is analogous to the provisions of section 151 of Civil Procedure Code and all judgments which lay down law regarding the application or otherwise of section 151 would be applicable while examining rule 5. In this connection he relied on cases reported as 'Messrs Conforce Ltd. v. Syed All Shah etc. (PLD 1977 SC 599), Mrs. Mehar Sultan Jung v. Qurban Hussain' (1972 SCMR 73), 'Ali Hussain v. Rafiquddin and others, (PLD 1977 Lah. 418) 'Messrs Asian Trading Corporation, Lahore v. Government of the Punjab etc. (PLD 1978 Lah. 382) and Karamatullah Khan v. Government of West Pakistan' (PLD 1967 Lah.171). These judgments broadly lay down the law that inherent powers of the Court cannot be exercised where a specific provision exists. In one of these cases (PLD 1977 SC 599) it has also been held that inherent powers are not meant to condone cases of gross negligence. The learned counsel submitted, not without justification, that facts before, me amount to gross negligence because it was the duty of the learned Advocate-General to file with the petition for leave to appeal the memorandum of appeal filed in the High Court but not only he did not do so but also he failed to do so subsequently for several months and took as many as five adjournment as already noted. On the other hand the learned Advocate-General has contended that rule 5 is an overriding provision and powers conferred by it can be exercised notwithstanding the fact that no application has been filed by a party and no cause has been shown. His contention is that the powers enumerated in rule 5 are in fact akin to section 42-A of Azad Jammu and Kashmir Interim Constitution Act which reads as follows:-- '42-A. Issue and execution of processes of Supreme Court. --(1) 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." ' He also contended that the power of acting in a particular manner for securing the ends of Justice or to prevent the abuse of the process of the Court is in substance different from the power conferred by rule 1. 8: A careful reading of the provisions of rules 1 and 5 seen in juxtaposition shows that the two provisions are independent of each other and they are meant to meet different situations. Rule 1 would apply where a party to the proceeding before the Court is unable to comply with any of the requirements of the Supreme Court Rules on account of some reasons which can convince the Court that it was sufficient to cause non-compliance. In other words there is a relationship of cause and effect between the two. The situations which are visualised by rule 1 may be various in nature and it is not possible to detail them in this order. However, it is a common day experience that litigants are prevented from complying with procedural requirements and they are able to show that they have been so prevented. If a litigant shows to the satisfaction of the Court that sufficient cause existed he is excused by the Court and consequences of non-compliance are thus avoided. Rule 5 on .Other hand creates a nexus between the inherent powers of the Court on one hand and ends of justice or prevention of abuse of process of Court on the other. ,My reading of rule 5 is that
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this power is only available when this Court feels that ends of justice may be achieved through it or abuse of process of Court may be prevented. If that be so, question that arises is what would be the meaning and connotation of the phrase "ends of justice". This phrase is not defined in the Rules and rightly so. Ends of justice cannot be exhaustively enumerated by codified or judge made law. It is a term which has to be interpreted and applied according to the particular situation which may arise in the circumstances of a case. Needless to say situations vary from case to case and so would its application. The Courts of law are created by law of the land and, in case of this Court, by the Constitution. Courts of law are to administer law for the purpose of doing justice to the litigants and it is a feature of our system of administration of justice that the law-makers provide all possible details to which certain provisions of law would apply but some matters are left undefined so that the Courts may act within a specified framework according to the requirements of a given situation. Rule 5 is one of these provisions and whether a particular order would meet the ends of justice is left to the Court which would act in accordance with facts of a particular situation. It is not without reason that power saved through rule 5 has not been made dependent on making of application by one party or on the satisfaction of the Court that sufficient cause exists which prevented a litigant from complying with any rule. This has been left to the discretion of the Court and this power is not abridged by any procedural requirement: This is not to say that this discretion may be arbitrary or capricious because when a discretion is vested in a Court of law it is assumed that it will be exercised judicially and not otherwise. Consequently I am unable to agree with the convict's counsel that in presence of rules 1 and 2 the provision of rule 5 was not available. 9. In the Court's order which is sought to be reviewed the learned Judge excused the State from the requirement of filing certified copy of memorandum of appeal in order to meet the ends of justice. It would be useful to reproduce para. 12 of the order wherein this aspect of the case has been dealt with:- "So far as the second objection with regard to the non-adherence to the provision of Order 13 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 is concerned, it was necessary to attach a certified copy of the grounds of appeal, alongwith the petition, for leave to appeal. This fact remained unnoticed at the time, the leave was granted. When the leave was sought, it was argued by the Advocate-General that non-petitioner respondent had committed a heinous crime of murder in a very cruel manner and he pointed out some mistakes in the impugned judgment. The leave was granted and at this stage, it does not seem proper to vacate the order granting leave, because there is an allegation of gruesome murder against the respondent and that the High Court has left some evidence out of consideration, which persuaded the Court to examine the record, for satisfying as to the correctness of the judgment, recorded by the High Court. In these circumstances, the Court in order to meet the ends of justice, in exercise of its powers, under Order XLIII rules 1 and 5 excuses the State from the requirement of Order XIII, read with Order 23 of Azad Jammu and Kashmir Supreme Court Rules, 1978." ' It appears from the above that what weighed with the learned Judge was that non-compliance of the rules had not been noticed at the time when the leave was granted and, as the learned Judge put it, there was an allegation of gruesome murder as well as that the High Court had left some evidence out of consideration and these two factors were grounds on which condonation was granted. The learned Judge formed the view that it was not proper to vacate the order granting leave in the case and in these circumstances he thought it fit to exercise the inherent power in order to meet the ends of justice. If rule 1 is treated as not being available in the circumstances of the case, as noted by me elsewhere, rule 5 gave sufficient powers for passing the Order under review. 10. Now the question which needs determination is whether the learned Judge was right in execising the inherent power or in other words whether the circumstances warranted the exercise
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of this special power. The petitioner's counsel submitted that in the judgment under review an apparent mistake in law has been committed in exercising power under rule 5. In this connection he took me through a judgment of the Supreme Court of Pakistan which is reported as 'Barkat Ali v. The State' (1986 SCMR 1616). In this case a petition for leave to appeal barred by only 8 days was dismissed on the ground of limitation and the Court did not give any weight to the important feature of the case that the P.L.A. Had been filed to challenge a death sentence. This judgment does not help the petitioher's counsel because, apart from dismissing the petition on the ground of limitation, the Court noted the facts of the case which had led to the conviction of the petitioner as confirmed by the High Court and noted that the case against the petitioner had been proved beyond reasonable doubt. The Court also noted that the crime committed by him was heinous. It is lear that although the petition filed by the convict was dismissed on the ground of limitation, the Judges composing the Court also examined merits of the case and satisfied themselves that the convict had been rightly convicted and that the case against him had been proved beyond reasonable doubt. To me it appears that this judgment is indicative of the fact that the Court might have granted leave by exercising its inherent powers if it had been convinced that ends of justice so demanded. There is a distinguishing feature also. It was a case in which the P.L.A. Itself was timebarred while in the present case a document was filed belatedly. 11. Mr. Abdul Rashid Abbasi also cited 'Mst. Rafiqan v. Muhammad Riaz' (1986 SCMR 738). There was a delay of 4 days in filing the petition of appeal and when this fact was brought to the notice of the Court at the time of hearing of appeal the Court rejected the application for condonation of delay as well as the appeal. It was held that the general principle followed by the Supreme Court of Pakistan was that delay in acquittal' matters is condoned only in a case where the petitioner is prevented by any act of respondent to file a petition for leave to appeal and also that acquittal order will not be lightly exposed to jeopardy by condonation of delay. This case is distinguishable and my 'reasons for saying so are two-fold. Firstly the question whether the condonation of delay was necessary or not to achieve the ends of justice did not come under consideration of the Court and secondly the question before the Court was of condoning the delay in filing the petition for leave to appeal, while in the present case the question relates to the filing of a certified copy of memorandum of appeal. Although the provisions requiring the filing of memorandum of appeal are mandatory in nature but these cannot be treated on equal footing because of the obvious distinction between the two. On the contrary, the learned Advocate-General has relied upon a case decided by this Court titled 'State v. Muhammad Nazir Khan and others' (PLD 1983 SC (AJ&K) 1), in which this Court has taken the view that if a defect comes to the notice of the Court after the grant of leave the position is entirely changed and it shall be deemed that whatever the defect was it had been condoned by the Court by implication. It has also been held that an appeal has to be decided on merits if leave has once been granted. This being the view of this Court, I see no reason how it can he said that the learned Judge who decided the appeal acted contrary to law as contended by the convict's counsel. 12. I have been able to lay my hand on a reported case titled 'Abdul Rehman v. The State' (1978 SCMR 292) in which a delay of 1119 days in filing a review petition was condoned although no application to show any reason for delay seems to have been filed. The Court condoned the delay after observing that the mistake sought to be corrected was apparent on the face of the record and the petitioner, an illiterate person, was in jail all through. This case gives support to the order under review so far as it relates to condonation of non-compliance of rules. 13. In view of the foregoing t have formed the opinion that sitting as a review Court I do not have the power to set aside the order excusing non-compliance of the requirement of the rules. I may not be in full agreement with the order passed by the learned Judge and I cannot exclude the possibility that it might not have been found necessary by me to exercise the inherent powers in favour of a
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party which had admittedly acted with such negligence but this cannot form a legal ground for vacating the order. The learned Judge exercised his judicial discretion and took the view that it was a fit case for exercising this power, because leave to appeal had been granted in the case and the learned, Judge after hearing arguments formed the opinion that it was a case of gruesome murder. His order finds support from the precedent cases referred to in earlier part of this order. Consequently there is no illegality warranting review. 14. The petitioner's counsel next contended that the acquittal appeal filed in this Court was also invalid on the ground that it had been filed without sanction of the Government and when the Government ratified the order the period of limitation had already expired. The facts related to this objection are that an order was passed on 30-7-1985 which recited that the Azad Government of the State of Jammu and Kashmir had granted permission for filing of petition for leave to appeal/appeal from the order of the High Court passed on 18-4-1985. This order was signed by the Under-Secretary of Law and Parliamentary Affairs. In pursuance of this order the learned Advocate-General filed the petition for leave to appeal. Subsequently it transpired that this order had been issued without sanction of the Government and it was on 13-7-1985 that the Prime Minister ratified this order. The learned counsel for the petitioner placed reliance on a case reported as 'Azad Jammu and Kashmir Government v. Habib Ullah Lone' (PLD 1984 SC (AJ&K) 13), in which this Court had dismissed an appeal filed by the Government for the reason that the Law Secretary had directed the Advocate-General to file petition for leave to appeal on behalf of the Government without sanction of the Government. The appeal was dismissed as it was found that the Law Secretary had no authority to issue above-mentioned direction because the Government had not authorised the Law Secretary to issue such a direction. Placing reliance on this judgment the learned counsel submitted that the appeal should have been dismissed but the learned Judge who decided the appeal failed to apply the law expounded by this Court in the judgment under review. This point has been dealt with by the learned Judge in para. 10 of the judgment. He was pleased to repel this argument in view of the fact that subsequent to the previous judgment of this Court the legal position has undergone change. The President enacted on 4-7-1984, Azad Jammu and Kashmir Law Department Manual 1984 in exercise of powers conferred on him by section 58 of the Interim Constitution Act 1974, in which the authority has been conferred on the Law Department to sanction litigation in any Court subject to ratification by the Government. Mr. Abbasi has submitted that the view taken by the learned Judge is a result of failure of the learned Judge to notice that acquittal appeals are not covered by the above-quoted authority which is contained in sub-paragraph (17) of paragraph 7 of the Manual. He explained that the provision mentioned above is a general provision while the provision relating to acquittal appeal is specific and is contained in sub-para. (16) of para. 7 which reads as follows:- "7(16). Submission with its opinion to the Government, applications for leave to appeal against orders of acquital." ' The other provision to which the learned counsel referred in this connection is contained in paragraph 17 of the Manual which lays down, in brief, that the proposal for instituttion of acquittal appeal should be made to the Law Department which shall thereupon submit the proposal to the Government who shall either reject or grant leave to file the appeal. Whether these two provisions were brought to the notice of the learned Judge is not clear from the order under review. However, I do not find force in the submission that the provision regarding sanctioning of litigation subject to ratification by the Government is not applicable to acquittal appeals. To me paragraph 17 of the Manual is purely procedural and it does not admit of the interpretation that since the Law Department has to submit the proposal to the Government which has been given power to reject or grant leave to file an acquittal appeal, therefore, it is not included in the power of Law Department to sanction filing of such an appeal subject to ratification. I do not find any
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inconsistency between the two provisions. I have noticed that a provision similar to the one contained in paragraph 17 is also contained in paragraph 39 which relates to civil…
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