1. ' JUSTICE FAZAL ILAHI KHAN (CHAIRMAN). --This Criminal Petition for Review by the convicts/petitioners is directed against the judgment of this Court dated 14th March, 1993; whereby, both the appeals--one by the convicts against their conviction and the other by the State for enhancement in the sentence of the convicts, were dismissed.
2. ' Both the accused-petitioners were tried by the learned Special Court Speedy Trials, Peshawar.
3. Finding them guilty of the offence of murder of their co-villager Hashim Khan and for having effectively fired and attempted at the life of Khushal Khan P.W., both of them were sentenced to imprisonment for life for the offence of murder and to a fine of Rs,25,000 each or in default to undergo simple imprisonment for 6 months. The fine if realised, was directed to be paid to the heirs of the deceased under section 544-A, Cr.P.C. They were further sentenced to 3 years' R.I. And a fine of Rs,2,000 each or in default to undergo 6 months' R.I. For the offence of attempting at the life of Khushal Khan P.W. Both the substantive sentences of imprisonment were directed to run concurrently. The petitioners were also extended benefit of section 382-B, Cr.P.C. The convicts challenged their conviction in Criminal Appeal No, 12 of 1993 while Criminal Appeal No, 14 of 1993 was filed by the State seeking enhancement of sentence and imposition of normal penalty of death on the convicts.
4. ' Both these appeals were heard together and disposed of by consolidated judgment dated 14th March, 1993; whereby on re-appraisal of entire evidence the finding of guilt recorded by the trial Judge was affirmed, hence the convicts' appeal was dismissed. With regard to the enhancement in the sentence of the petitioners the sentence of life imprisonment being legal and commensurate with the facts of the case, the State appeal was also dismissed.
5. ' The convicts have moved two review petitions. Criminal Miscellaneous No, 4 of 1993 from Jail and Criminal Miscellaneous No, 5 of 1993 has been directly filed in this Court. Both these review petitions are accordingly being disposed of by this order.
6. ' Learned Deputy Attorney-General appearing for the respondent raised a preliminary objection to the maintainability of the review petitions. It was argued that the right of review is a substantive right and is always the creation of the Statute governing a matter. That the Special Courts for Speedy Trials Act (IX) of 1992 does not have provision for review. In support of his arguments the learned Deputy Attorney-General placed reliance on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), Dr. M. Fazil Zaheer and others v. Begum Jan and others (PLD 1966 Lahore 53) and Muzaffar v. Muhammad Shafi (PLD 1981 SC 93).
7. ' Mr. Ahmed Raza Kasoori, learned counsel for the petitioners, however, in repelling the arguments of the learned Deputy Attorney-General contended before us that keeping in view the scope of exercise of power of review it can safely be assumed that it is an ordinary incident in the procedure and the Court can take upon itself such exercise for clarification of the effect of its judgment. And such power is much wanted specially in a Court of ultimate jurisdiction or a Court at apex so as to override any error apparent on the record or' to meet the ends of justice. It was further contended that the superior Courts generally extend its jurisdiction rather than to curtail it for doing complete justice which is the underlying idea always to be kept in mind. Such power of review was inherent with the Court and shall be assumed and invoked unless barred by the Statute. In support of his contention the learned counsel relied on several judgments of various superior Courts including the following:- (1). Suo Motu Shariat Review Petition No, 1-R of 1989 (PLD 1990 SC 865) (Shariat Appellate Bench).
8. (2). Civil Review Petition No, 33-R of 1990. Muhammad Hussain and others v. Pannu Khan and others (PLD 1990 SC 900).
9. (3). Ch. Zahoor Ilahi v. The State (PLD 1977 SC 273).
10. ' After hearing the learned counsel for the parties in this petition as well as the connected petition and going through the judgments relied upon by the learned counsel and cited at the Bar, we may point out that similar question was raised and has been fully dealt with in a judgment Muzaffar--- petitioner v. Muhammad Shafi-respondent (PLD 1981 SC 93). This was a case in a rent matter and the question involved therein was; whether, an order passed in second appeal by the High Court under Ordinance VI of 1959 is open to review. In that case several judgments for and against cited in the present petition came for consideration. Their Lordships on the principle laid down in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) observed that "The right to claim review of any decision of a Court of law, like the right to appeal is a substantive right and is always creation of the relevant Statute on the subject (see Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) where at page 5, it was held that: "The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Bronwell, Li.J, in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q B D 1-- ' does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment. This is equally true in case of review, because both the appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law)."
11. ' Relying on the above their Lordships came to the conclusion that the Ordinance i,e. In the West Pakistan Rent Restriction Ordinance does not exist any express power of review of the judgment and order of the High Court passed by it in second appeal under section 15(4). Their Lordships further repelling the arguments of the learned counsel that any order passed in the light of the provisions of Order XLI or Order XLII speaks such order to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure held as under:-- "Again the theory of continuation of trial or proceeding is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example, it will be appreciated that an appeal is regarded as a continuation of trial, but it is well-settled that a jurisdiction or right of appeal does not exist merely on this theory but is to be created or granted by a Statute. If so granted and if so invoked or exercised, the proceedings in an appeal are considered as a continuation of the trial, but the basic fact remains that this jurisdiction is to be bestowed by a Statute and Statute alone. If this not done then the aforesaid theory by itself will not create any right or jurisdiction of appeal.
12. Coming back to the subject in hand, in the alternative, assuming without conceding, that a review is also a continuation of the previous proceeding (though our positive fmding is that it is not so and that it is a new trial) even then before the proceedings are allowed to further continue, in the form of a review, a jurisdiction to do so in this case also must be similarly conferred by a Statute just as it is to be done in the case of grant of a right of appeal. If there is no statutory conferment of jurisdiction of review; like jurisdiction of appeals, the theory of continuation of proceeding will be of no avail. Similarly this theory---(i,e. Theory of continuity)---will not be helpful in crossing over the fmality to the main judgment rendered in Second Appeal. Because subsections (4) and (5) of section 15 of the Ordinance make that order final with a further emphasis that that shall not "be called in question in any Court of law by suit or otherwise "It is well-settled that in review, you do call in question the original order on its merits and it is precisely this very exercise which is prohibited to be done and will be covered by the words 'called in question otherwise': ' Their Lordships further considered in detail subsections (4) and (5) of section 15 of the Ordinance read with sections 96 to 112, 114 and 117 of the Code of Civil Procedure and came to the conclusion: "that looked at from whatever angle the conclusion is inescapable that as the Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance. 1959: ' In S.A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 SCMR 965) one of the questions which came for determination on the contention of the learned counsel was whether, the Service Tribunal would be deemed to be a Civil Court and would have the same powers as arc vested in such Courts under the Code of Civil. Procedure, 1908 and has such power to review its own order. Their Lordships on going through the relevant provisions of law and the authority cited found the contention without any force on the ground that the power given under subsection (2) of section 5 of the Service Tribunals Act are identified as those for the purpose of deciding an appeal and to that extent the word "deemed" makes it notionally a Civil Court for _exercise of such powers as are vested in a Civil Court for deciding an appeal under the Code of Civil Procedure, 1908. Those powers are found in Order XLI and in sections 96 and 100 of the Code. The powers under Order XLI do not include the power of review which is separately provided for in section 114 and Order XLVII, C.P.C. In the given circumstances.
13. ' The judgment in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), relied upon by the learned counsel for the petitioner, is not applicable to the facts of the present case. In the precedent case such power was assumed by the learned High Court in exercise of its power under Article 98 of the Constitution of Pakistan, 1962. The power of review was assumed under section 114, C.P.C. As it was available to the High Court in the case as proceedings under Article 98 of the said Constitution were in the nature of civil proceedings relating to the High Court's original civil jurisdiction. Such is not the situation here as the language of the Statute itself by legal fiction assumed the Tribunal to be a Civil Court for limited purpose of deciding the appeal under the provisions of Order XLI of the Code of Civil Procedure.
14. ' On similar ground the judgment in Ch. Zahoor Ilahi v. The State (PLD 1977 SC 273) and the judgment in The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) are distinguishable and are not helpful-to the learned counsel for the petitioner.
15. ' The learned counsel for the petitioner also relied on the judgments in Mst. Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412) and Suo Motu Shariat Review Petition No, 1-R of 1989 (PLD 1990 SC 865). In support of its proposition that when a forum is provided for providing a particular redress, it will be implied that the ordinary incidents of the procedure of the Court are attached to it. In general the right of appeal or a review or other remedy from its decision likewise would be attracted.
16. ' In the aforementioned Suo Motu review petition in Shariat Appeal two questions were raised before their Lordships firstly, whether, the Shariat Appellate Bench of the Supreme Court can take upon itself exercise of clarifying the effect of its judgment given in the case of the Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and/or to supply any obvious omission therein in pursuance of a Suo Motu notice issued to the parties concerned. Secondly, whether, the Shariat Appellate Bench can examine the question that the view found favour with the majority of a Full Bench of the Supreme Court while exercising its review jurisdiction in the case of Ahmad v. Abdul Aziz (PLD 1989 SC 771) is contrary to the view taken in Said Kamal's case or contrary to the Injunctions of Islam.
17. ' The contention of the learned counsel that review powers having been exercised by the Appellate Bench of the Supreme Court, though in absence of any specific provision for review, the Courts being at apex, can also be exercised by this Court, is misconceived. Shariat Appellate Bench of the Supreme Court has exercised its power as it was available not under Article 203-F of the Constitution, provides for an appeal to Shariat Appellate Bench as a Bench of the Supreme Court and as such under Article 188 of the Constitution the Supreme Court has the power to review any judgment pronounced or any order made by it. Article 188 of the Constitution read with Order XXVI, Rule 1 under para. IV of the Pakistan Supreme Court Rules, 1980 which provides for subject to the law and practice of the Court, the Court to review its judgment and order in any civil proceedings similar to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceedings on the ground of an error apparent on the face of the record.
18. ' His Lordship in para. 9 of the judgment in Suo Motu Shariat Review Petition No, 1 observed as under:-- "By Clause VI (6) of Article 203-F, which provides that "While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine. I am, therefore, of the view that the Shariat Appellate Bench can take upon itself exercise of clarifying the effects of its judgment given in Said Kamal's case and/or to supply any obvious omission in any part thereof in the above suo moto review petition."
19. ' The aforementioned judgment is not helpful to the petitioner as Special Courts were established under section 6 of the Special Court for Speedy Trials Act, 1992 (Act IX of 199) and appeal against the final judgment of the Special Court is provided for under section 13 which is as follows:--
13. Anpeal.--(1) An appeal against the final judgment of the Special Court shall lie to the Supreme Appellate Court which shall consist of:--
(a) a Chairman, being a Judge of the Supreme Court to be nominated by the Government after consultation with the Chief Justice of Pakistan; and
(b) two Judges of the High Courts to be nominated by the Government after consultation with. The Chief Justice of High Court concerned.
(2) The Government may establish as many Supreme Appellate Courts as it may deem necessary.
(3) Copies of the judgment of a Special Court shall be supplied to the accused and the prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the Supreme Appellate Court within three days of the decision.
(4) An appeal under subsection (1) shall be preferred by a person sentenced by the Special Court to the Supreme Appellate Court within seven days of the passing of the sentence.
(5) The Attorney-General, Advocate-General, Deputy Attorney-General, Assistant Advocate- General, Standing Counsel or an advocate appointed in this behalf shall, on being directed by the Government, present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
(6) An appeal under this section shall be heard and decided by the Supreme Appellate Court within thirty days.
(7) A Supreme Appellate Court shall sit at such places, and have jurisdiction within such territorial limits, as may be fixed by the Government.
(8) In exercise of the appellate jurisdiction, a Supreme Appellate Court shall, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code.
20. ' From the above it is evident that section 13 of Act IX of 1992, has no comparison with Article 203-F of the Constitution of Islamic Republic of Pakistan which specifically provides for hearing of an appeal by a Bench of the Supreme Court while in the latter this drastic change of hearing of the appeals under Article 203-F of the Constitution and section 13 of Act IX of 1992 the powers of review under Article 188 cannot be assumed in the instant case.
21. ' Supreme Appellate Court in the instant case has been invested with all the powers conferred on an Appellate Court under Chapter XXXI of the Code but subject to the provisions of this Act (Act IX of 1992) admittedly the Act does not make any provision for review and section 430 of the Criminal Procedure Code the order passed by an Appellate Court makes the order final except in the cases provided for in section 417, Cr.P.C. And Chapter XXXII. Chapter XXXII however, is irrelevant in the context of the present proceedings.
22. To sum up the above discussion we are of the view that Act IX of 1992 neither expressly nor by implication provides for any power of review. Accordingly this petition is dismissed.
23. Review .