The Constitution of Pakistan, 1973 Developed by Zain Sheikh

FEDERATION OF PAKISTAN AND OTHER S

Vs

MIAN MUHAMMAD NAWAZ SHARIF AND OTHERS

Per Tassaduq Hussain Jillani, J–

Constitution of Pakistan (1973) Arts. 184(3), 199,, 63(h)(1), 225 & 188–

r/w Representation of the People Act (LXXXV of 1976)–Ss. 14(5)(5A),

(6), 11 & 99

On 26-5-2009, we had disposed of theses petitions in terms of a short order, operative part of which is as follows : –

(i)   “That the judgments under review i.e. of the Lahore High Court dated 23-6-2008 and of this Court dated 25-2-2009 are ex-parte on account of which certain factual aspect and legal provisions having bearing on the issues raised, were not brought to the notice of the Court and therefore were not considered leading to miscarriage of justice which has been found by us to be errors apparent on the face of record warranting

review.

(ii)   Realizing the exceptional and extraordinary events relating to un-constitutional removal of Judges of   the superior Courts which in the judgment under review has been described as, “enforced by a brutal force, by deviating from constitutional provisions,” triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merit to be interfered with in the review jurisdiction.

(iii)  That both the appeals filed under section [4(5) of the Act and the information laid or directed against the acceptance of nomination papers (under section 14(5A) of the said Act) were mandated to be decided by or  before 31st of May 2008, the period fixed for deciding the appeals in the Schedule issued by the Chief Election Commissioner under section 11 read with section 14(5) of the said Act.  Since the appeals were not  decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in  accord with section 14(6)  of the Act which stipulated that, “an appeal not disposed of within the period  specified in subsection (5) shall be deemed to have been dismissed. “The finding that information laid under  section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of  appeals was not in consonance with the legislative intent.

(iv)   The last date for disposal of appeal against the acceptance of nomination papers was 31-5-2008 and  thereafter the Appellate Tribunal had become functus offcio. The order of the Chief Election Commissioner  dated 1-6-2008 to the effect that since the appeals had not been decided within the afore-referred cut-off  date, the same were deemed to have been rejected (in terms of subsection (6) of section 14 of the said Act) was passed with jurisdiction. The learned High Court not only allowed respondent’s writ petitions against this

order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of Mian Muhammad Shahbaz Sharif, it held that the source information/petition (under subsection (5A) of section 14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief election Commissioner, whereas in the case of Mian Muhammad Nawaz Sharif declared him disqualified to contest the elections.

(v)            The mandate of Article 225 of the Constitution has not been appreciated in the context of the instant cases.  This Article places a bar to challenge an election dispute except through an election petition under the aw i.e. the Representation of the People act, 1976.  In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Article 199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry.  In the cases in hand the issues of unpaid loans, of Court contempt and of filling false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Article 199 of the Constitution and even the material placed before the Court was not sufficient to render the impugned findings.

(vi)   That the ‘Presidential Pardon’, in the case of Mian Muhammad Nawaz Sharif stood admitted by the Federation of Pakistan through the statement made by the Deputy Attorney General before the High Court, before this Court during the hearing of the main petition and in the instant review petition and even by the learned  Attorney General for Pakistan who appeared in these review proceedings.  To alleged that it was conditional or

qualified pardon required deeper probe which exercise entailed factual enquiry.  Similarly, the questions whether petitioners were his by Article 63(h) and (1) of the Constitution or by section 99 of the Act could also not heave been decided by the High Court or by this Court in writ jurisdiction.  The judgments under review therefore are not in accord with the law laid down by this Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Sc 396), Ghulam Mustafa Jatoi v. Addl. District & Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others (1994 SCMR 1299) and Let. Ge. (R) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 SC 735 at 763).

(vii)  That one of the onerous functions of the Supreme Court is to protect the constitution and to sustain democracy.  Democracy is not merely holding of periodical elections or of governance by legislative majority. It is a multidimensional politico-moral concept epitomizing the abiding values of equality, human dignity, tolerance, enjoyment of fundamental rights and due process of law. Whether it is the issue of denial of a substantive right or of construing a statutory provision, these principles should weigh with the Court. Article 4 of the Constitution is a restraint on the legislative, executive and judicial organs of the State to abide by the rule of law.  Abdication of this awesome responsibility by any organ leads to arbitrariness and injustice.

These in our estimation are canons of substantive democracy embodied in our Constitution which, inter alia, we have kept in view while exercising the power of judicial review. ”   [p. 677] A

However, on a deeper appreciation of the stance taken and after hearing their learned counsel, it has been found by us that petitioners’ non-appearance was not attributable to a personal bias against the Court then  constituted but on account of a public stand that they had taken before entering the process of elections i.e. the collective oath which they and all the party candidates had taken on the issues relating to the Imposition of “State of Emergency” on 3rd of November, 2007 and a resolve to launch a movement for the  restoration of superior judiciary.  The restoration of the Hon’ble Chief Justice of Pakistan and other judges who were deposed on the imposition of “State of Emergency” and the immediate appearance of the petitioners by way of filing these review petitions indicate that the stance taken was based on a certain moral grounds which stood vindicated.  The same cannot be dubbed as either contumacious or reflective of acquiescence to warrant the impugned findings.

We agree with learned Attorney General for Pakistan that after the grant of leave, Order XVI Rule 1 provides 30 days’ time for the respondent to appear.  In the instant cases, however, instead of waiting for 30 days to enable the petitioner/respondent to appeal, the Court allowed the appeal immediately when the petition was  converted into appeal.

No one should be condemned unheard is an old adage ever since the advent of judicial dispensation.  In Commissioner of Income Tax, East Pakistan v. Syedur Rehman (PLD 1964 SC 410), this Court went to the extent of classifying an order passed without hearing as a void order. [pp. 682, 683] B,C & D

Civil Miscellaneous Application No. 1597 of 2009 filed by Mr. Ahmad Raza Qasuri, Advocate Supreme Court praying for production of the pardon order was also dismissed as not maintainable and misconceived because this application was filed after almost two days of the arguments having been concluded in C.R.Ps Nos. 59 & 60 of  2009 and secondly a probe on merits was the exclusives preserve of a Court/Tribunal of plenary jurisdiction  and this Court could not enter into factual enquiry in proceedings arising out of a petition under Article 199 of the Constitution in the peculiar facts and circumstances of this case.  Even otherwise, the respondent had not made such a prayer during the hearing of main petitions. [p. 701] V

As is evident from a bare reading of this Article, this power is subject to an Act of the Parliament and to the Rules made by the Supreme Court.  In terms of Supreme Court Rules part (IV), Order XXXVI, Rule (1), the Court reviews its judgment or order in civil proceedings on the grounds similar to those mentioned in Order  XLVII, Rule (1) of the CPC and in criminal proceedings on the ground of an error apparent on the face of record.

In Abdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363), this Court while discussing in depth the case  law on the powers of review laid down certain principles which the Court may consider while exercising this

power, those are as follows :–

(i)that every judgment pronounced by the Supreme Court is presumed to be a considered solemn and final decision on all points arising out of the case;

(ii) that if the Court has taken a conscious and deliberate decision n a point of fact or law a review  petition will not lie;

(iii) that the fact the view canvassed in the review petition is more reasonable than the view found favour with the court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;

(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;

(v)     that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court r it has failed to consider some important aspect of the matter, a review petition would lie;

(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been  different, in such a case a review petition would lie;

(vii) that the power of review cannot be invoked as routine matter to re-hear a case which has already been decided or change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;

(viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare deices will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;

(ix) that the Court is competent to review its judgment/order suo motu without any formal application;

(x) that under the Supreme Court Rules, it sits in divisions and not as a whole.  Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches  irrespective of their size are decisions of the Court having th same bindings nature.”[pp. 697, 698] Q & R