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Criminal Review Petition No.52/M.R. of 1983, decided on 26th February 1984.

(Review petition against the judgment of the Supreme Court dated 30 1 1983 in Criminal Appeal No.16/M.R. of 1981).

O.XLVI, R.1 Civil Procedure Code (V of 1908), O.XLVII, R.1 Review of judgment by Supreme Court Requirements Power of review in criminal proceedings is to be exercised on the ground of error apparent on the face of the record and in civil proceedings on grounds similar to those as contained in O.XLVII, R.1, Civil Procedure Code, 1908 Mistake or error apparent on the face of the record is a ground common to both the civil and criminal proceedings.

O.XLVI, R.1 Ground for review Phrase "apparent on the face of the record" connotes that error must be so manifest and so clear that to keep such an error on the record has the effect of perpetuating visible injustice Error, either of fact or law must be an error which is self evident and does not require elaborate discussion.

O. XLVI, R.1 Review in criminal matters when to be permissible Finality attaches to judgments delivered by Supreme Court, which stands at the apex of judicial hierarchy Review proceeding is neither in the nature of re hearing of the whole case nor it is appeal against the judgment under review To embark upon reiteration of the same contentions as were advanced at the time of hearing of appeal but were considered and repelled in judgment under review, would not be permissible Supreme Court in criminal matters would not interfere in review with the quantum of sentence where a legal sentence had been imposed or upheld after due consideration of all relevant circumstances Review petition being devoid of merit was dismissed.

Expression "error on the face of record" Connotation.

Raja Lehrasap Khan for Petitioner.

Raja Muhammad Akram Khan for the State.

Date of hearing: 26^thFebruary, 1984.

This petition seeks review of the judgment of this Court dated the 30th January, 1983, whereby the criminal appeal No.16/M.R. of 1981, filed by the petitioner Sabir Hussain herein, was dismissed and conviction and sentence of death recorded against him by the Azad Jammu and Kashmir High Court on 13 5 1979 under section 302 Penal Code were upheld and confirmed.

2. Raja Lehrasap Khan, the learned counsel for the petitioner, seeks review of the judgment only regarding the quantum of sentence. The facts of the case appreciated in paras. Nos. 14 and 15 of the impugned judgment, he submitted, provide extenuating grounds to commute the sentence of death.

3. To appreciate the validity of the argument advanced it would be proper to reproduce paras. No.14 and 15 in extenso. They read:

"14. From the discussion, made above I feel convinced that the appellant suspected the deceased to be of immoral character and that is why after the birth of the child and to be exact from the day she was conceived, the treatment of the appellant, with the deceased became objectionable. The appellant, it appears, doubted that his wife (deceased) was the daughter born of Mst. Khurshid Begum from her first husband and his father in law had illicit relations with her. The statement of Mst. Khurshid Begum, P.W.2, coupled with the statement of Ch. Muhammad Taj, PW 4, provides sufficient ground to hold so. It appears that the appellant had been brooding over her infidelity and then finally decided to get rid of her despite his best efforts to bring her under his roof.

15. On the face of the above considerations I have been continuously mentally occupied for a considerable long time to determine as to whether the appellant can legally avoid the capital sentence. I may frankly confess that at times I felt inclined to hold that extenuating circumstances exist in the case .to save the appellant from the capital sentence but I feel that God the Almighty has graciously given me light to have the correct view of the matter. "A" The close study of the case, especially the conduct of the appellant vis a vis the conduct of the deceased, Mst. Sarwar Jan, at the time of occurrence, compelled me to change my view. It has come in the evidence of Mst. Khurshid Begum that when the appellant apprehended the deceased and asked her to accompany him to his house, she promptly agreed to the suggestion and only required the appellant to accompany her to the house of his in laws to take along also their infant child. This attitude of the deceased was sufficient to cool him down but it appears that the appellant, at all costs, was bent upon and determined to extinguish the candle of the life of the poor lady and to achieve the objective he not only gunned her down to death but also gave injuries on the person of Mst. Khurshid Begum, his mother in law. The appellant, thus deserves no leniency. "At"

It would appear that para. No. 151 ("A" to "A") advances reasons not to show any leniency to the applicant.

4. In these circumstances the question, which requires consideration is as to whether there is any mistake apparent on the face of the record calling for interference by way of reviewing the impugned order. It may be stated here that according to rule 1 of Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, which reads:

"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."

the power of review in criminal proceedings is to be exercised on the ground of an error apparent on the face of the record and in civil proceedings on grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure. Now, as rule 1 of the said Order also speaks of mistake or error apparent on the face of the record, this ground for review obviously is common to both the civil and criminal proceedings in this Court.

5. The following . questions need examination in this case:

(i) What do we meen by the phrase "mistake or error apparent on the face of the record"

(ii) What is the scope and nature of the proceedings intended for the discovery and creation of such an error" and

(iii) Whether any such error or mistake exists in the present case

All the three questions, being interlinked, are disposed of together In order that an error may be a ground for review, it must be one, which is apparent on the face of the record, i.e., it must be so manifest, and so clear that to keep such an error on the record may perpetuate visible injustice. Error may be of a feet or law but in must, however, be an error which is self evident aid does not require any elaborate discussion.

6. Besides, it is also to be borne in mind that finality attaches to the judgment delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case nor it is an appeal against the judgment under review. It is, therefore, not permissible to embark upon the reiteration, of the same contentions (as is done in the present case) as were advanced at the time of hearing of the appeal; but were considered and repelled in the judgment under review. It needs also to be noted that it is a well settled principle of law that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence if a legal sentence has been imposed t7upheld after due consideration of all the relevant circumstances.

7. Let me now examine the submissions made by Raja Lehrasap Khan in the light of these principles in support of this review petition. Raja Lehrasap Khan has devoted considerable time to show that there is an error apparent on the face of the record inasmuch as the petitioner was in an unbalanced state of mind to do away with the life of his wife as he suspected her to be of immoral character. This contention has been thoroughly discussed and repelled in the judgment with the following observations:

"The close study of the case, especially the conduct of the appellant vis a vis the conduct of the deceased, Mst. Sarwar Jan, at the time of occurrence, compelled me to change my view. It has been come in the evidence of Mst. Khurshid Begum that when the appellant apprehended the deceased and asked her to accompany him to his house, she promptly agreed to the suggestion and only required the appellant to accompany her to the house of his in laws to take along also their infant child. This attitude of the deceased was sufficient to cool him down but it appears that the appellant, at all costs, was bent upon and determined to extinguish the candle of the life of the poor lady and to achieve the objective he not only gunned her down to death but also gave injuries on the person of Mst. Khurshid Begum, his mother in law. The appellant, thus deserves no leniency."

The argument thus is hardly available to the learned counsel and stands repelled.

8. The further contention of Raja Lehrasap Khan that in giving sentence of death the Court has gone wrong in the application of law to the facts of the case and erroneous inference has been drawn as a result of appraisal and appreciation of the evidence, is also without substance. All that in this behalf is being suggested by the learned counsel is that the report under section 173 of the Code of Criminal Procedure, the statement of Mst. Khurshid Begum under section 161 of the Code of Criminal Procedure and the F.I.R. are not in line with the statement of Mst. Khurshid Begum in the Court that the deceased, at the time of occurrence, on the command of the petitioner to accompany him, readily accepted the offer and only requested the accused to accompany her to the house of his in laws to take alongwith them the infant child too and thus the capital sentence is not called for. These factors have no substance especially in a review petition. They have neither been put to the relevant witnesses nor they can be considered to be substantive piece of evidence in the present case. Besides, to have a lenient view for the protracted trial of the petitioner has been elaborately discussed in the impugned judgment and hardly forms a ground for a review petition. Thus this case does not suffer from any error much less an error apparent on the face of the record.

9. The perusal of the submissions made by Raja Lehrasap Khan at the bar as well as the relevant grounds mentioned in the review petition thus leaves no doubt that what the learned counsel is striving to achieve is reappraisal of the evidence which is hardly permissible in a review petition.

As a result the review petition fails and is hereby dismissed. Although I have not found it possible in law to review the sentence of death on the grounds urged by Raja Lehrasap Khan yet as observed in the impugned judgment the grounds now urged may be relevant for consideration by the executive authorities in the exercise of prerogative of mercy.

A.A. /228/S C A

Review petition dismissed.

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