Daily Times

We have just come out of a recent series of protests arising as a result of the judgment (Crl. Appeal No 39-L/2015 dated 31.10.2018) passed by the Supreme Court of Pakistan, in a case of alleged blasphemy, infamously known as the ‘Asia Bibi’s case’.

Through the said judgment, the Court set aside the judgments of both the trial Court and the honourable High Court; and acquitted Asia Bibi of the charges of blasphemy.

However, in a stringent disapproval of the said acquittal (without reading through the reasons elaborated in the said judgment), one of the right-wing extremist party Tehreek-e-Labbaik Pakistan (TLP) showed its reservations in the form of protests and sit-ins, locked down major cities of the Country for three days. However, eventually got a clean chit by the government in the form of an agreement executed to end the protest.

Enough has been said and written on the judgment rendered by the Supreme Court, and this agreement executed between the representatives of the government and members of TLP. One of the clauses in the said agreements reads as follows:

“That a review petition shall be filed in the case of Asia Masih, which is the legal right of the defendants [Respondents]. Upon which, the Government shall have no objection”

The inclusion of this clause would not create any additional right; however, this has been made a part of the agreement only to bring the government on the same page, and to convince the government to not oppose the review; and instead to speak in favour of the review petition. The prosecution, on behalf of the state, should, in any way, endorse the review petition for setting aside the judgment; as the judgment is against the state and in favour of the accused. In addition to this, there have been reports on the oral demands of TLP that a full bench, excluding the three honourable members who authored this judgment, be constituted to hear the review. In these circumstances, it is important to discuss the scope of the review petition to be filed before the august Supreme Court for understanding of general public.

Under Article 188 of the Constitution, the august Supreme Court has the power to review any judgment or order passed by the said Court, subject to any law passed or rules made in this regard. Article 188 does not distinguish between the orders and judgments passed in civil proceedings and that are passed in criminal proceedings. No law is in place pursuant to Article 188. However, the Supreme Court Rules, 1980 (the Rules) have been made which stipulate the procedure to carry out proceedings before the Supreme Court. As per Rule 1 of Order XXVI of the rules, a review of order/judgment passed in civil proceedings may be reviewed on the grounds similar to those mentioned in Order XLVII of the Code of Civil Procedure, 1908; whereas, a review in criminal proceedings may be done only on the ground of an ‘error apparent on the face of the record’.

This provision of Rules alone decides the scope of review which may be considered by the august Supreme Court. The remaining provisions of Order XXVI go on to discuss the rest of the procedure including, inter alia, limitation to file review, issuance of notices, appending certified copy of judgment/order, accompanying an affidavit, depositing an amount of Rs 10,000 for entertainment of petition, along with other mandatory and directory requirements.

The said Order XXVI, as explained, clearly mentions the requirements and mandate of the Constitution as well the law on review before the august Supreme Court of Pakistan. Two factors need to be discussed in the scenario; first is the grounds of review, and the second is the constitution of bench hearing the review.

As far as the grounds of review, in a criminal case, are concerned, it is reiterated that the sole ground is ‘error apparent on the face of the record’. This means that the Court, sitting in review, may not hear the merits of the case

As far as the grounds of review, in a criminal case, are concerned, it is reiterated that the sole ground is ‘error apparent on the face of the record’. This means that the Court, sitting in review, may not hear the merits of the case. In review, the evidence may not be reappraised, and the parties may not be allowed to reconstruct their case, and discuss the facts and law of the case. The only ground for a party filing the review is to show the court that there is an error in the judgment, or something which has been overlooked by the Court resulting in such an error.

Perusal of the Judgment rendered by Mr Saqib Nisar J, honourable Chief Justice and Mr Asif Saeed Khosa J, chalks out the contradictions and discrepancies which have badly affected the case of prosecution. With such a judgement and a masterpiece in the form of additional note; it is very difficult to point out an error apparent on record. Almost every fact and argument has been discussed, especially supported by and compared with the statements led by the witnesses, very little chance remains for acceptance of review petition. Particularly, when there is a very limited scope of this power of the Court.

The second factor is the constitution of bench to hear the review petition. Arguably, the provisions of Rule 8 are not completely mandatory in the sense that these give enough room for practicability. The constitution of a larger bench, or a different bench, while hearing the review petition, is unwarranted in the facts and law of present case as neither any important disputed questions of law are involved, nor any contradictory judgments have been pronounced.

After an in depth reading of the judgment in this case, the fate of the review petition is inevitable. Nonetheless, filing of a review petition is the right of the aggrieved party, and shall be availed by them, to which, no one may object.

The writer is a Lawyer based in Lahore. He has a degree in Law from Lahore University of Management Sciences. He can be reached at javedahaseeb@gmail.com or Twitter: @haseebajaved

Published in Daily Times, November  11^th 2018.