Law: Frontier Crimes Regulation (III of 1901)

Section: 8, 48, 55-A, 55-AA

Law: Constitution of Pakistan, 1973

Section: 199, 247(7)

REMARKS

(A) As regards the bar contained in Article 247(7) ibid and notwithstanding its repeal, the superior courts have repeatedly held that such barring clause is to be very strictly construed and in cases where an error of jurisdiction or striking violation of law was floating on surface of the record, then such orders have consistently been held to be amenable to judicial review both before the High Courts as well as the Supreme Courts of Pakistan. Even otherwise, by the time when this writ petition was filed and is being heard, Art. 247 has since been omitted and is no more therein in the constitutional scheme governing matters relating to erstwhile Tribal Areas. This particular deletion / amendment in the Constitution may not affect the remedies and avenues which were available to litigating parties right on the date of filing of suit but that does not mean that the omitted barring clauses affecting jurisdiction of constitutional court would still survive. Once Art: 246 and 247 have been taken away from the letter of the Constitution, then bar of jurisdiction under Art. 247 (7) has also been removed. And writ petition in hand could be maintained, provided grounds of challenge come within the ambit of judicial review.
(B) A High Court while exercising powers of judicial review under Article 199 of the Constitution could not substitute the findings of facts arrived at by competent forum and Tribunal in routine as a court of appeal. Powers of judicial review conferred upon the High Court under 199 of the Constitution are very limited to the extent of correcting jurisdictional defects and patent violation of law arising out of the judgments impugned before it. Reappraisal of evidence or record and possibility of another conclusion per se are no valid grounds to question the judgments of competent forum as well as Tribunals / courts. In such cases, relator has to establish that the challenge brought before the High Court was on the ground of some jurisdictional defect and / or patent violation of law. Based on that, the preliminary objection raised by the respondents’ side is overruled being untenable.
(C) The above review jurisdiction is not made available to the courts as of routine to upset its earlier findings upon rehearing of the case and such powers are not for reopening of the past and closed matters unless errors or mistakes as aforesaid are floating on the surface of record. There is an abundance of case-law wherein the powers of a court to review its previous judgments has been dialed upon and from those judgments of the superior courts, following principles are deducible;
i. When there is a discovery of new fact or evidence, or when some mistake or error apparent on the face of record is found, then the power of review may be exercised.
ii. Law provides three grounds for review such as: (1) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of, or could not be produced by, the party seeking review at the time when the decree was passed or order made; (2) some mistake or error apparent on the face of the record. The third ground for review, i.e. “any other sufficient reason” is always held to be read as ejusdem generis in the context of two preceding grounds.
iii. What is meant by an error apparent on the fact of record is that it must be self- evident floating on the surface and not requiring elaborate discussion or process of ratiocination.

Summary of the Judgment:Pre-emption Dispute

This case involves a land dispute where the petitioner, Abdul Khaliq, claimed ownership of land purchased in 2004, which was later contested by the respondents (Dr. Liaqat Ali and others) on the basis of pre-emption rights.