(Review Jurisdiction)
C.R.P. NO. IN/2010
Const. Petition No 76/2007
The Federation of Pakistan through Secretary Ministry of Law, Justice & Parliamentary Affairs, Islamabad--- Petitioner
VERSUS
1. Dr Mobashir Hassan S/o Munawar Hassan,
R/o H. No 4-K, Gulberg-II, Lahore
2. The National Accountability Bureau through its Chairman, Islamabad.
3. The Province of Punjab through Chief Secretary, Secretariat, Lahore.
4. The Province of Sindh through Chief Secretary, Secretariat, Karachi.
5. The Province of N.W.F.P. through Chief Secretary, Secretariat, Peshawar.
6. The Province of Balochistan through CS, Secretariat, Quetta--------- Respondents
PETITION UNDER ARTICLE 188 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 READ WITH ORDER XXVI RULE 1 OF THE SUPREME COURT RULES, 1980 FOR REVIEW OF THE SHORT ORDER/JUDGMENT DATED 16.12.2009 PASSED IN CONSTITUTION PETITION No 76/2007.
Respectfully Sheweth:That the facts of the case are that respondent through Const. Petition 76/2007 had challenged the vires of the National Reconciliation Ordinance, 2007 (NRO) and prayed that it be held constitutional as it violated, amongst others, Articles 4, 8, 25, 62, 63 and 175 of the Constitution.
2. That when the matter came up for hearing on 7th December, 2009 the Learned Acting Attorney General of Pakistan filed a statement which, amongst other things, stated that the NRO was promulgated by the previous regime and that he was under instruction not to defend it.
That such the prayers raised in the Petition where unopposed and the Constitution Petition could have been disposed of by a short order in terms of the prayers.
That during the course of the proceedings many submissions were made concerning relief(s) the scope of the prayers made in the Petition.
That in the light of such submissions by the Senior Counsel for the respondent the Federation through its Counsel filed a statement on 10.12.2009. The statement, parts of which were withdrawn amongst other things, lauded the Hon'ble Supreme Court for its 31st July 2009 landmark judgement where it had fully acted within the tracheotomy of power and requested the Hon'ble Court to pass orders in terms of the prayers in the Petition.
That after filing the statement and a full hearing for a further five days the Hon'ble Supreme Court passed its short order (the Short Order) on 16.12.2009 consisting of approx: 17 pages the reasons for which were to be recorded later.
That in addition to holding the NRO unconstitutional the Short Order also contained various declarations and directions to the Federal Government and other competent authorities.
That the petitioner with due respect to the finding in the Short Order in so far as it holds the NRO unconstitutional the petitioner seeks review of certain order findings and/or directions contained in the Short Order inter alia on the following:-
GROUNDS
a) That the Hon'ble Supreme Court as a matter of law erred in para 13 of the Short Order in considering 'facts' whilst acting in its Constitutional jurisdiction especially in an unopposed petition.
b) That the Hon'ble Supreme Court erred as a matter of law in holding at para 14 (vii) of the Short Order that convictions in absentia still hold the field bearing in mind its own judgement in an earlier case and the settled legal position in Pakistan vis-à-vis that Cr. P.C that an accused cannot be convicted in absentia.
c) That the Hon'ble Supreme Court failed to consider the doctrine of past and closed transactions when passing the Short Order.
d) That the Hon'ble Supreme Court erred in holding in para 14(viii) of the Short Order that the then Attorney General needed to show to the Hon'ble Supreme Court an order or authority to address communications to various authorities/Courts and foreign countries including Switzerland. This Hon'ble Court did not fully appreciated that on the same logic the original request by the then Attorney General in the year 1997 addressed to the Swiss Authorities to institute proceedings was without lawful authority and of no legal effect.
e) That alternatively since the then Attorney General had orders/authority to address such communications to various authorities/Courts and foreign Countries including Switzerland the Hon'ble Supreme Court erred in para 14(ix) of the Short Order in ordering the Federal Government and other concerned authorities to take immediate steps to seek revival of the said requests, claims and status.
f) That by virtue of International Law doctrine of extra territoriality the Hon'able Supreme Court erred at para 14(ix) of the Short Order in holding that it had the power to direct the Federal Government to revive requests, claims and status of cases/proceedings outside of Pakistan.
g) That by virtue of the doctrine of the tracheotomy of powers the Hon'ble Supreme Court erred in para 14(ix) of the Short Order in holding that it had the power to issue directions or orders to the Federal Government to review requests, claims and status of cases/proceedings outside of Pakistan whose decision to revive or otherwise falls within the exclusive purview of the executive.
h) That the Hon'ble Supreme Court erred in para 14(ix) in holding that the named National Accountability Bureau (NAB) functionaries (Chairman), Prosecutor General, Additional Prosecutor General should transmit periodical reports of the actions taken by them to the monitoring cell of this Hon'ble Court unless this only referred to reports concerning the progress of the judicial proceedings initiated by NAB as opposed to its investigative and other functions as under the Pakistani common law system the Judiciary is not a part of the investigative phase of any accusation.
i) That the Hon'ble Supreme Court erred in adjoining the Review Petition, seeking review of the decided ease of Khan Asfandyar Wali, when the NAB Ordinance having been challenged as bad law should also have been looked into and decided alongwith the present cases, having direct nexus.
j) That further grounds may be added/submitted at the time of hearing after the reasons for the Short Order have been delivered in the detailed Judgement by this Hon'ble Court.
k) That the case of Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 S.C 607) the NAB Ordinance was held by this August Court to be a valid retrospectively. A Review Petition was filed in that case which was to be heard alongwith Const.
Petition No 76/2007. However, the Review in the case of Khan Asfandyar Wali has not yet been decided by this Hon'ble Court and the same is still pending, therefore, the decision that the NAB is valid retrospectively holds the field. The decision announced through the Short Order/Judgement in the present case, is therefore, contradictory to the findings recorded in the Khan Asfandyar Wali's case.
To resolve this contradiction in the two judgements passed by this Hon'ble Court, reviews prayed for is a proper remedy. It is, therefore, most respectfully prayed that Short Order/Judgement dated 16-12-2009 passed in Constitution Petition No 76/2007 may kindly be reviewed in the interest of justice.