1. ' The petitioner/appellant has filed this appeal under Order V, rule 3 of the Supreme Court Rules, 1980 (hereinafter to be referred as 'the Rules' only) against the order of Assistant Registrar, Supreme Court of Pakistan, dated 3-4-1994. By the impugned order, the Assistant Registrar returned the review petition filed by the petitioner on the ground of non-compliance of rule 8 of Order XXIII of the Rules. This appeal came up for hearing in chambers on 10-10-1994 when the learned counsel for the appellant requested for time to file an application for examption from compliance of rule 8 of Order XXIII of the Rules in the circumstances of the case. Such an application has been filed and therefore, both the appeal and application for examption are disposed of simultaneously by this order.
2. ' The appellant was tried in a murder case and was convicted and sentenced to death by the trial Court. On appeal, the Lahore High Court by judgment dated 16-2-1991 accepted the appeal of the appellant and reversed the judgment of trial Court and acquitted him in the case. The acquittal appeal against the judgment of High Court was allowed by this Court by majority judgment dated 25-11-1993. The judgment of the High Court was set aside and that of trial Court was restored and the death sentence was confirmed. The appellant filed a review petition against the judgment of this Court dated 25-11-1993 which was returned by the Assistant Registrar on the ground that in view of non-compliance of the provision of the first proviso to rule 8 of Order XXIII of the Rules, the review petition is not entertainable. The appellant has challenged the legality of the above order of Assistant Registrar and has also contended that if there is any non-compliance of the Rules, the same may be dispensed with under inherent power of the Court in the circumstances of the case.
3. The relevant rule relied by the Assistant Registrar in the impugned order reads as follows:-- "8. Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit: ' Provided that unless surrender is first made to an order of imprisonment, as above, the petition shall be entertained: ' Provided further, petitions- involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court."
4. From reading of the above rule 8, it is quite clear that this rule is applicable to the petitions filed under Order XXIII of the Rules which specifically relates to the petitions for leave to appeal and appeals arising therefrom in criminal proceedings. The provisions for review of the judgment of this Court are governed under Order XXVI, Part IV, of the Rules. The provisions contained in Order XXIII are not made applicable to review petitions filed under Order XXVI of the Rules. I have also not been able to find any general rule in the Rules extending the application of the provisions of Order XXIII ibid to the proceedings under Order XXVI of the Rules. I am, therefore, of the view that the provisions contained in rule 8 of Order XXIII cannot be extended to the petitions for review filed under Order XXVI of the Rules. It is significant that the Rules making authority wherever intended that the rules contained elsewhere in the Rules would also apply to the proceedings under other Orders, it was so specifically provided in the rules. For instance, rule 1 of Order XXIII of the Rules provides that the provisions with respect to petitions for leave to appeal in civil proceedings contained in Order XIII shall mutatis mutandis apply to the petitions for leave to appeal in criminal matters except that no court-fee, process fee or search fee shall be charged but the copying fee shall be charged except in petitions through jail. Similarly, rule 13 of Order XXII of the Rules also provides that the provisions contained in the preceding Orders in Part II shall mutatis mutandis apply, so far as may be, to criminal appeals under Order XXII except that concise statement will not be filed in criminal appeals unless ordered by the Court. I am, therefore, of the view that Order XXVI of the Rules, which is contained in Part IV of the Rules governs the filing of the review petitions and as there is no provision under Order XXVI making rule 8 of Order XXIII applicable to the petitions filed under Order XXVI, the review petition filed by the petitioner could not be returned on the ground of non- compliance of rule 8 of Order XXIII of the Rules. I may, however, point out that there appears to be an omission on the part of Rules-making authority while framing Rules for filing review petitions, as it sounds strange that while a petition for leave to appeal and an appeal may be refused to be entertained on the ground that the petitioner has failed to surrender to an order of imprisonment, no such Rule has been made in respect of the review petitions. It is, therefore, desirable that either application of rule 8 ibid be extended to the proceedings under Order XXVI of the Rules or appropriate amendment be made in the Rules under Order XXVI ibid, so as to ensure that an order of this Court of which review has been sought in a criminal matter may be made subject to the compliance of the order sought to be reviewed. In view of the above discussion, I allow the appeal, set aside the order of the Assistant Registrar and direct that the review petition be processed in accordance with the law.