' MUHAMMAD YUNUS SURAKHVI, J.---The petitioner herein, through this review petition, seeks review of the judgment of this Court titled Iqbal Razzaq Butt v. Abdus Salam Butt and others (Civil Appeal No,62 of 1998 passed on 3-8-1998), whereby the appeal filed by the petitioner against the judgment of the High Court dated 13-4-1998, was dismissed.
2. The brief facts, giving rise to the present review petition, are that respondents Abdus Salam Butt, Shah Ghulam Qadir and Iqbal Razzaq Butt, the petitioner herein, filed their nomination papers from Constituency No,LA-38, Valley-IV, as member to the Azad Jammu and Kashmir Legislative Assembly (hereinafter to be referred as Legislative Assembly). The respondent Abus Salam Butt raised objection to the nomination of petitioner before the Returning Officer on the ground that he was not qualified to be elected as a Member of the Legislative Assembly under the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution) and under the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 (hereinafter to the referred as Ordinance) as he was not a State Subject. The aforesaid objection was turned down by the Returning Officer by observing that a State Subject Certificate has been issued in favour of petitioner by the District Magistrate Muzaffarabad and that still holds the field as it has not been annulled by any competent Authority till todate. The objection, thus, taken before the Returning Officer, was overruled and the nomination papers of the petitioner were accepted. An appeal field by respondent Abdus Salam Butt against the order of Returning Officer was dismissed by the Chief Election Commissioner.
3. Respondent No,1, Abdus Salam Butt, filed a writ petition in the High Court assailing the State Subject Certificate issued in favour of petitioner by the District Magistrate Muzaffarabad, his vote in the electoral roll for the Constituency No,LA-38, Valley-IV, the order of Returning Officer and that of Chief Election Commissioner. Subsequently through an amendment the notification declaring the petitioner as returned candidate was also called in question. Shah Ghulam Qadir, respondent No,2 herein, was subsequently transposed as petitioner No,2 in the writ petition on the application moved by him in this behalf. The High Court accepted the writ petition filed by respondents Abdus Salam Butt and Shah Ghulam Qadir and declared the nomination papers, filed by the petitioner from the said constituency, as illegal and of no effect and also quashed the order passed by the District Magistrate issuing State Subject Certificate in favour of petitioner and the orders of Returning Officer as well as the Chief Election Commissioner. The seat of Constituency No,LA-38 Valley-IV was, thus, declared as vacant and the Chief Election Commissioner was directed to hold fresh elections in the said Constituency. An appeal filed by the petitioner, herein, before this Court was dismissed vide our impugned judgment dated 3-8-1998. It is the aforesaid judgment of this Court which has been challenged by filing the present review petition.
4. The petitioner alongwith the review petition has annexed a pedigree-table of the owners of village Rajpurah, District Anantnag, and another pedigeetable of the village Haing, Tehsil Tal-marg, District Baramula, wherein the name of Karim Baldish, the grandfather of petitioner, and his father Razzaq is entered in both the attested copies of pedigree-tables. It was averred in the review petition that the pedigree-table from Sri-Nagar could not be placed on record of the Court in view of obtaining conditions in the occupied Kashmir where state of war exists for the last many years and the postal services have become almost impossible with a result that the above proof was registered to Pakistan from New Dehli. In view of discovery of this new fact the review of the judgment was prayed for. Various other grounds have also been averred in the review petition.
However, during the course of arguments the learned counsel for the petitioner, Kh. Shahad Ahmad, Advocate, pressed the review petition on two-fold grounds:--
(1) That the pedigree-tables now filed by the petitioner at the stage of review petition positively show that the grandfather of the petitioner was admittedly an owner in the occupied part of Kashmir and was a State Subject. Thus, according to the learned counsel for the petitioner, a State Subject who migrates to a foreign territory not only his own State Subject subsists but also the State Subject of his descendants continues for two generations in accordance with the requirement of Notification No,13-L of 1989 published in the Government Gazette, dated 24th Har, 1989; and
(2) that in presence of alternate remedy being available, the writ petition before the High Court was not competent.
5. The learned counsel in support of his contention relied on the Secretary to the Government of West Pakistan, Communication and Works Department and the Advisor Town Planning v. Gulzar Muhammad (PLD 1969 SC 60), wherein the following observations have been made at page 63 of the report:-- ' "Normally where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh, material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. In the present case, the appellant has adopted the last course without disclosing as to why it could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. But in an appeal it is now well-settled that additional evidence should not be admitted in order merely to enable one of the parties to the litigation to fill in gaps in the evidence."
' In a case reported as Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) it was observed at page 913 in a following manner:-- ' "a review petition is competent even when an appeal is provided. The effect of non-availing of the remedy of an appeal is that a party in a review petition is to confine to the grounds of review mentioned in above Rule 1 of Order XLVII, C.P.C. Namely--
(a) discovery of new 'and important matter or evidence which, after the exercise of due diligence, was not within his (the person invoking the review jurisdiction) knowledge or could not be produced by him at the time when the decree was passed or order made; or
(b) when the decree or order suffers from some mistake or error apparent on the face of the record; or
(c) other sufficient reason."
' In a case reported as Mst. Kishwar v. Settlement Commissioner and 4 others (1987 SCM R 1396), the observations recorded at page 1397 of the report are as under: - "The contention raised on behalf of the petitioner needs examination.
' Unfortunately, in the earlier order made by this Court it was erroneously assumed that the petitioner was the successor-in-interest of Rao Muzaffar Ali Khan and was laying a claim to the portion transferred to him. This was not correct. She had purchased the portion transferred to Muhammad Ismail. Kalu Khan had not challenged the transfer of this portion to Muhammad Islmail. We would accordingly review our earlier order and grant leave to the petitioner to appeal."
' In another case reported as Muhammad Ishaque v. Abdul Aziz and another (PLD 1965 (W.P.)
Lahore 590), it was observed at page 594 of the report as under:-- ' "We consider that, as laid down in section 117 of the Code, all the provisions of the Civil Procedure Code other than those specifically excluded by that section are applicable to the orders passed by the High Court, including those passed in Letters Patent jurisdiction section 114, would, therefore, apply to the judgments of the High Court for purposes of the review, provided the limitation mentioned in the section does not stand in the way."
' On the strength of these authorities the learned counsel submitted that these pedigree-tables now annexed with the review petition have a substantial bearing on the case and this evidence has subsequently been discovered as the same was not within the knowledge of the petitioner at the time of hearing of appeal.
6. It may be stated that Order XLVI Azad Jammu and Kashmir Supreme Court Rules which deals with the review petition reads as under:-- "1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record.
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' Order XLVII of the Code of Civil Procedure may usefully be reproduced below:-- "1. Application for review of iudgment.--(1) Any person considering himself aggrieved---
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is allowed; or
(c) by a decision on a reference from a Court of Small Cause; and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
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7. The above provisions of law clearly postulate that the condition precedent for exercise of review jurisdiction is that the discovery of new and important matter or evidence should be such, which after exercise of due diligence was not within the knowledge of the party and it could not be produced at the time when the decree was passed. It is nowhere the case of the petitioner that the discovery of this evidence was not within his knowledge at the time when the judgment under review was passed. It is also not the case of the petitioner that he after exercising the due diligence discovered the important piece of evidence on the basis of which he seeks review of the judgment.
8. In the review petition it has been averred by the petitioner that in, the Occupied Part of Kashmir there was a state of emergency and postal arrangements were not possible. Resultantly, he managed the copies of pedigree-tables posted from Delhi to Pakistan. It may be pointed out that in the above case the writ petition was filed in the High Court on 23-6-1996 and was decided on 13- 4-1998. An appeal was preferred before the Supreme Court on 16-4-1998 and the same was decided on 3-8-1998. Before 28th May, 1998, the day on which Pakistan exploded atomic deterrent, the relations between Pakistan and India were normal. Even the state of emergency in Pakistan was declared in June, 1998; so the above piece of evidence, being within the knowledge of the petitioner, could have been produced either before the High Court or before the Supreme Court at the relevant time; particularly when the petitioner has not alleged in his petition for review that this piece of evidence has now been discovered by him. Therefore, the ratio of the authorities cited by the learned counsel for the petitioner is of no help to him.
9. Pedigree-table has been produced by the petitioner to prove that grandfather of the petitioner was a State Subject but this pedigree-table does not advance the case of the petitioner because of the following view given in the judgment sought to be reviewed:-- ' "On careful consideration of the arguments .Impressed upon and the nature of admission claimed to have been made by the respondents before the Returning Officer the argument is found to be of no substance at all. In the first instance no such admission was found in the whole of the record placed before us; secondly, though it was mentioned by the Returning Officer in his judgment that respondent's case was that grandfather of appellant migrated to Pakistan 50 years prior to 1947 but there is nothing in the so-called admission that Karim Bakhsh, the grandfather of the appellant, migrated from the State of Azad Jammu and Kashmir to Pakistan. We are afraid we cannot stretch this so-called admission to the extent that the grandfather of the appellant migrated from the State of Jammu and Kashmir to Pakistan 50 years prior to 1947. Even the alleged admission was neither made basis for defence in the written statement filed by the appellant nor the same was confronted to the respondents. In our view it was imperative for the appellant to raise and prove that his grandfather was a State Subject and in that capacity he had migrated to Pakistan but neither such plea has been raised nor there is any material in support of the same. In this view of the matter the argument being devoid of legal force is of no substance.
' Even if it be assumed for the sake of arguments that the grandfather of the appellant had migrated to Pakistan prior to 1947, keeping in view the composition of the Legislative Assembly as contained in the Ordinance called as Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970, the appellant could not have been eligible to contest the election from the seats reserved for refugees. Subsection (2) of section 2 of Ordinance of 1970 is reproduced below:-- ' Six members to be elected from amongst themselves by the refugees from the occupied areas of District of Muzafarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are now residing in any of the Provinces of the Punjab, Balochistan, Sindh and North-West Frontier Province.'
' The above provision makes it abundantly clear that these six seats are reserved for the refugees from occupied areas of District Muzaffarabad, Anantang (Islamabad) and Baramula but the appellant failed to prove himself the refugee from the aforesaid areas."
10. The second point urged by the learned counsel for the petitioner needs no consideration for the simple reason that we have already dealt with the said C point in somewhat detail in our judgment under review. Para. No,10 of the judgment under review may usefully be reproduced below:-- ' "In so far as the principle of law is concerned it has been correctly laid down but each case has to be seen in the light of its own peculiar facts. In the instant case, we have already reached the conclusion and it is a matter of our common experience that appeals before the Council or the Government or for that matter proceedings before the District Magistrate consume a lot of time and the same are not disposed of for years together, thereby jeopardising the valuable rights of the parties. In this view of the matter in the instant case, the remedy of appeal available to the respondents was not adequate or efficacious, therefore, the contention raised by the learned counsel for the appellant merits no consideration which is hereby repelled."
11. The nutshell of the above discussion is that finding no force in this review petition, it is hereby dismissed in limine. However, the petitioner, if so advised, may renew his prayer for getting a State Subject Certificate issued from the District Magistrate on the basis of satisfactory evidence.
Review .