JAYED IQBAL, J.- This is Constitutional Petition preferred on behalf of Kareem Bakhsh, under Article 199 of the Constitution of Islamic Republic of Pakistan (Hereinafter referred to as the Constitution) with the following prayer:- It is therefore to pray that the impugned order dated 29.9.1993 (Annex X) made by the respondent Commissioner and dated 18.9.1994 .(Annex Z) made by the MBR may be determined to have been unlawfully and without jurisdiction and be consequently set aside; thereby restoring the order dated 3.6.1992 (Annex S) made by the Deputy Commissioner, pursuance whereto the Petitioner has already made the deposit of the forfeited amount (Annexr T) Costs of the petition may also be awarded."
2. Briefly stated the facts of the case are that on 7,2.88 one Noorullah was murdered in Karakh Bazar, and accordingly a case under Section 302/109/34 PPC was got registered against Muhammad Rafique and other. After completion of usual investigation the cognizance was taken and the matter referred by the Deputy Commissioner Khuzdar to the Tribunal for its finding under Criminal Law (Special Provisions) Ordinance-II of 1968 (hereinafter referred to as the Ordinance).
The case proceeded before Tribunal and on 27. 12.90 accused Muhammad Rafique and co- accused Ali Hassan were enlarged on bail by Deputy Commissioner; Khuzdar, on furnishing surety in tune of Rs J lacs. The petitioner Kareem Bakhsh stood surety for accused Muhammad Rafique (it is, however, disputed now that the surety amount was in fact Rs. 1 lac).The petitioner could not procure the attendance of accused Mohammad Rafique and consequently proceedings under Section 514 Cr. P.C. Were initiated against him for forfeiture of the bail bonds. It is worth while to mention here that initial proceedings for forfeiture were initiated for an amount of Rs. 5 lacs and it was directed by learned Deputy Commissioner, vide its order dated 3.2.92 that an amount of Rs. 3 lacs be forfeited, but subsequently the same was reduced and the Deputy Commissioner, directed for the recovery of Rs. 85,000/-vide order dated 3.6.92 keeping in view the over-writing on the bond and opined that it was executed for Rs. 1 lac only. An appeal was preferred against the order dated 3.6.92 passed by learned Deputy Commissioner, whereby the amount was reduced upto Rs. 1 lac and learned Commissioner vide its order dated 29.9.93 set aside the order dated 3.6.1992 passed by the learned Deputy Commissioner and original order dated 3.2.92 was restored. Being aggrieved of the said order a Revision Petition was moved by the petitioner before the learned Member Board of Revenue on 24.10.93 which was decided on 18.9.1994 and the "order passed by the Commissioner dated 29.9.93 w^ts upheld and resultantly the petition was dismissed, hence this Constitutional Petition.
3. It is mainly contended by Mr. Basharatullah who appeared on behalf of the petitioner that the surety bond dated 27;12.199Q had been furnished by the petitioner or period of two months which was expired on or about 26.2.91 and thereafter no proceedings whatsoever could be initiated against the petitioner, after the expiry of stipulated period as mentioned in the bond. It is also pointed out that accused had been appearing before the Court after the expiry of stipulated period as mentioned above and it was for the authorities concerned to take the precautionary measures to procure his attendance for future as the petitioner was responsible to produce the accused before the Court for a period of two months and beyond that it was not his responsibility to procure the attendance of accused any more. It is further contended with vehemence that the learned Commissioner had absolutely no authority to entertain a time barred appeal in view of the Provisions as contained under Section 23 of the Ordinance, and as such the order dated 29.9.93 is nullity in the eyes of law and as such no action on the basis of its can be initiated against the petitioner. It is next contended that similarly the order passed by M.B.R./ are without lawful authority because he could not have reviewed the order passed by learned Commissioner, which itself was ab initio void. It is urged emphatically that accused Muhammad Rafique was admitted to bail for a period of two months in the sum of Rs. 1 lac with P.R. Of the same amount, but subsequently the words "Rs. 1 lac" had been changed to that of "Rs. 5 lacs" by some unknown person with ulterior motive and with intention to cause substantial financial damage to the petitioner. The said illegal manipulation was subsequently corrected by the Deputy Commissioner, who was fully authorized to do so and thereafter ail the subsequent proceedings being unlawful and having no sanctity of law should have not been initiated. It is also pointed out that the order passed by the learned Commissioner dated 29.9.93 was in violative of the documentary evidence, which was Considered by the learned Deputy Commissioner and the surety amount was determined as Rs. 1 lac. It is also argued that the learned. M.B.R.. Have acted without any lawful jurisdiction as no finding on fact could have been lawfully recorded by him or so maintained which could have not been so recorded against the fact and record. It is also argued that various extensions given by the Deputy Commissioner on 25.2.91 and 273.91 by no stretch of imagination can be deemed to have extended the liability of the petitioner as a surety who had not furnished a fresh bail bonds and hence cannot be held liable to procure the attendance of accused beyond a period of two months as stipulated in the original bond furnished by the petitioner. It is further pointed out that the factual position existed on record could not be appreciated properly and the conclusion arrived at by the learned M.B.R, that bond was executed for sum of Rs. 5 lacs is based on surmises and conjuncture without any concrete base and thus it should be struck of in the interest of justice.
4. Mr. Ahmed Khan Lashari Advocate, has appeared on behalf of Shamasuddin .(respondent No.3) and controverted strenuously the position as canvassed by Mr. Basharatullah Advocate, and he contended that impugned orders passed by the learned Commissioner and learned M.B.R, on 29.9.93 and 18.9.94 respectively are neither unlawful nor patently perverse and as such do not call for any interference. It is further contended that keeping in view the factual controversy regarding the amount of surety and subsequent concrete finding and conclusion derived by the concerned forums the Constitutional jurisdiction as conferred upon this court under Article 199 of the Constitution cannot be invoked and findings of fact cannot be interfered.
5. We have carefully examined the respective contentions as adduced on behalf of the parties in the light of relevant provisions of law and available record. We have minutely perused all the orders including impugned orders passed now and during the previous round of litigation. First order was passed by Deputy Commissioner on 12.8.91 whereby the petitioner was directed to furnish bail bonds in the sum of Rs. 5 lacs and produce the absconder before 10-9-91. The said order was challenged by way of Revision (No.24/LR-91) which was accepted by the learned M.B.R, vide order dated 23.11.1991 and case was remanded back to Deputy Commissioner with the direction to initiate proceedings against the petitioner strictly in accordance with Provisions as contemplated under Section 514 Cr.P.C. The needful was done after the completion of necessary formalities and the Deputy Commissioner was pleased by passing following order dated 3.2.1992 whereby an amount of Rs. 3 lacs was directed to be deposited:- j fIf} jit J JtjjSf}i/!>3'tyf3'2.1992 . t-'t'of.'ttJ {{URDU TEXT}} A bare perusal would show that the order is well worded and based on the relevant record. It is quite amazing that how the said order was again reviewed whereby the amount of Rs. 3 lacs was reduced to that of Rs. 85,000/-. We may make it clear that review is the creation of statute and it is not a discretion, and no order can be reviewed dll such powers are specifically conferred upon the reviewing authority under some statute or law. It is not the sweet will of the learned Deputy Commissioner to review an order in accordance with his own wishes. We may make it clear that no court possess the inherent power to review its order and this power must be expressly granted by statute.
6. It is neither a discretion nor the sweet will of judical/quasi judicial forum to exercise the powers of review in accordance with their own whims and wishes but unless conferred upon them in an unequivocal term by any statute. The right to claim "Review" being a substantive right cannot be claimed unless provided by law. In this regard reliance can be placed on case Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi P.L.D. 1970 S.C. 1 wherein it was held as under:- The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Branwell, LJ., the case of Sandback Charity Trustees V. North Staffordshire Railway Co:(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 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.
Article 98 -(1) of the 1962 Constitution (hereinafter called the Constitution) provides that a High Court shall have such jurisdiction as is conferred on it by the Constitution or by law, whereas-Article 130 thereof provides that no Court shall have any jurisdiction that is not conferred on it by the Constitution itself or by or under the law. Under Article 62 of the Constitution, the Supreme Court has jurisdiction, subject to the Provisions of any Act of the Central Legislature and of any Rules made by the Supreme Court to review its judgement or order."
A bare perusal would make it clear that review unless provided expressly cannot be exercised. In this regard we are also fortified by the dictum laid down in the following authorities:- 1986 S.C.M.R. 965.
1981 P.L.D.S.C.94.
P.LJD. 1970 S.C.I.
P.L.D.1965 S.C.55.
P.LD.1958 S.C. 201.
7. We have also focused our attention to examine the legality of the order passed by the learned Commissioner. We may point out here that review order by Deputy Commissioner dated 3.6.92 was itself void ab initio being passed without having any lawful authority as such it could have been treated as nonexistent and could be termed as nullity and thus can safely be ignored but the learned Commissioner had not acted beyond jurisdiction by rectifying the illegality.
No doubt that the appeal was time barred and ordinarily it should not have been entertained by the Commissioner, but it must not be lost sight of that. Order which was subjected to appeal itself was a nullity and void oh inition therefore, the appellate forum was-competent not only to entertain the same but dispose it of on the basis of merits instead of technicalities and to arrive at a just decision. The time factor in the explained circumstances does not create a bar and resultantly the stipulated time limited can be ignored. It was held in case Syed Mohammad Alam Vs. Syed Mehdi Hussain. (PLD. 1970 Lahore-6) as under: "In some circumstances, in spite of the fact that prima facie the appeal would appear to be time- barred, the appellate authority can entertain and decide it on merits. One such situation can arise, when the order under appeal is a nullity. An act or an order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled. In case, however, the order or action which is a nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity. In such circumstances, the cause of action, in so far as that person is concerned will arise only when the attempt is made to enforce such an action or order against him, and there fore there will be no question of limitation involved, in the sense that, the date of order, which is a nullity, for the purpose of start of limitation, will become insignificant.
10. We have also embarked upon the main contention as adduced by Mr. Basharatullah Advocate, that in fact the surety amount was Rs. 5 lacs. It transpires from the scrutiny of record that the said contention is baseless and as rightly pointed out by the learned M.B.R, in his order dated 18.9.94 that surety amount was Rs.5 lacs. We may reproduce here the relevant portion of his Judgement, which is self explanatory-: "Furthermore, the petitioner had earlier filed a Ravision Petition (No.24/91) against his arrest by the DC Khuzdar for his failure to produce the accused Mohammad Rafique before the Court.
Incidentally, Mr. Basharatullah Advocate was the counsel for the petitioner in that case too. From the Memo of that petition it is evident that the release -order was for Rs. 500,000/- and not for Rs.
100,000/-. The relevant portion of the petition and Annexure^ thereto are reproduce as under: PETITION "1. xx xxx xxx xxx xxx on the ground that the period of two years has since elapsed during the subsistence of trial, they may be admitted to bail The Tribunal gave the recommendations on 16.12.90, consequent whereupon the >C Khuzdar passed an order on 17.12.90 in the terms that agreeing with the award of the Tribunal, two accused are released on bad on surety of two person of Rs.500.000/- each for a period of two MONTHS.
"Subject to such order, the petitioner was one of the sureties, he furnished bond for a period of two months on 27.12.1990. The same was accepted by the DC Khuzdar on 27.12.1990 with order reading "accepted for period of a two months."
"ANNEXURES: Page-15 This is a certified copy of the release order dated 27.12.1990. It confirms that the bonds were to be furnished for Rs. 5 lacs and not for 1 lac. Relevant portion of the order is reproduced as under: {{URDU MISS}} Page-23: This is a photo copy of Notice dated 13.6.91 issued by the AC Khuzdar to the petitioner which indicates the amount as Rs.500,000/- .The relevant portion of the same is read as under:- {{URDU MISS}} Pages 17 and 19. These are certified copies of Bonds which indicate that the amount was enhanced/corrected from Rs. One lac to Rs. Five lacs. Had the amount malafidely been enhanced by some one, the petitioner would have made an objection to this effect.
10. The Revision Petition No. 24/91 was disposed of by the then Senior Member, Board of Revenue (Syed Shahid Hussain) through his order dated 23.11.1991, para 4 of which is read as under:- "During arguments it was mentioned that Kareem Bakhsh who stood surety in the sum of Rs.
500,000/- for accused Mohammad Rafique was issued a show cause notice u/s 514 Cr.P.C, (dated 13.6.91) by the DC Khuzdar and on account of petitioner's refusal to receive the notice he was arrested."
11. All the facts narrated above have proved that the amount of surety was Rs.500,000/- and not Rs.100,000/-. It is very strange that in the previous round of litigation, the petitioner was not aggrieved of the enhanced amount. There is no doubt that the petitioner has tried to cheat the court by concealing the facts which were earlier in his best knowledge (Revision Petition No.24/91)."
12. In view of the above reproduced factual position, based on record Mr. Basharatullah cannot agitate now that the surety amount was Rs. 1 lac as he himself had admitted that the surety amount was Rs. 5 lacs and which amounts to Estoppel created by his conduct, this plea cannot be entertained now.
2. The upshot of the above discussion would be that the order dated 3.6.92 passed by the learned Deputy Commissioner being unlawful and passed in exercise of the authority not vested in him, is hereby declared to be of no legal effect and resultantly the order dated 3.2.92 passed by learned Deputy Commissioner whereby an amount of Rs. 3 lacs was directed to be confiscated shall hold the field which has been independently upheld by Appellate and Revision authorities vide orders dated 29.9.93 and 18.9.94. The petition being devoid of merits is accordingly dismissed, with no orders as to cost.