Clubbing of NAB references: Nawaz again requests CJP to reconsider his order

ISLAMABAD: Disqualified prime minister Nawaz Sharif Tuesday requested the chief justice of Pakistan to reconsider his order, passed on Nov 16, 2017, in the chamber, upholding the objections of the Supreme Court Registrar Office on his plea seeking conversion of the National Accountability Bureau (NAB) references against him and his family into one.

He filed an application in the Supreme Court through his counsel Khwaja Haris under Order V, Rules 2(5) and 4 of the Supreme Court Rules 1980 for consideration of the order passed in chamber by the Chief Justice on his plea seeking merger of the NAB references.

Nawaz prayed to the chief justice to direct the office to assign a number to the applicant's constitutional petition and fix it for hearing before a learned bench of this court.

On Oct 13, Nawaz filed a petition in the SC for merge of Avenfield properties, Al-Azizia Steel Mills and Flagship Investments references. The SC assistant registrar, however, raised objections over the Nawaz plea and the Chief Justice on November 16, 2017, while taking up the matter in his chamber, upheld the objections, raised by the Assistant Registrar office on October 20, 2017, returning the applicant's Constitutional Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, in effect. It gave the reason that the applicant had already availed the remedy of review, provided under Article 188 of the Constitution, against the Final Order of the Court dated 28-7-2017. It said that since the ground of attack

in the Applicant's Constitution Petition did not form part of the "grounds of attack" in the Applicant's Review Petition, "thus the argument that despite having a remedy of review and even availing such remedy, the applicant has an independent remedy per the provisions of Article 184(3) of the Constitution to assail the judgment on the rule of per incuriam, in light of the law laid down in the judgment reported as regarding the pensionary benefits of the judges of the superior courts (PLD 2013SC 829), is not tenable.

The order of Nov 16, 2017 had also held that the points raised in the present petition should have been part of the review petition which were never agitated by the petitioner in those proceedings despite the petitioner had a clear chance to do so, thus, the present case is distinguishable from the ratio of the judgment therefore, the office objections are sustained and the Civil Miscellaneous Appeal is dismissed.

The former PM submitted that vide order dated 07-3-2017 passed in Constitution Petition No 86 of 2010, the three-member bench of the court had already referred the question, as to whether after dismissal of his review petition an aggrieved person can seek further remedy in terms of Article 184(3) read with Article 187 of the Constitution, for consideration by a larger bench.

“Since the applicant's case is similar in nature, following the principles of equality, as well as of due process, the order is liable to be reconsidered and set aside by a learned bench of this honourable court,” the former prime minister contended.

He contended that it is his case that a petition, “which is filed on the ground that a judgment of this honourable court is per incurium, can neither be decided by the Registrar nor by a learned judge in chambers, rather such a petition has to be inevitably placed before, and be adjudicated and decided by the honourable court.

“In this respect, kind attention is drawn to the distinction between a learned ‘judge’ of this honourable court and the ‘court’ as provided in the Supreme Court Rules, 1980, inasmuch as, as per sub Rule (1) of Rule 2 of Order I, a "Judge" mean "Judge of the Court", whereas, "Court" and "this Court" means "the Supreme Court of Pakistan".

It was further contended that that even otherwise, it is trite law that there is no bar on the exercise of jurisdiction by this honourable court under Article 184(3) read with Article 187 of the Constitution in respect of a judgment which is per incuriam and non-est.

This view was confirmed by this apex court in the judgment reported as re: application by Abdul Rehman Farooq Pirzada; PLD 2013 Supreme Court 829, wherein it was held that this honourable court, in exercise of jurisdiction under Article 184(3) read with Article 187 of the Constitution, has unlimited powers to revisit a judgment which is per incuriam, irrespective of the mode and manner in which it is brought to the notice of this honourable court.