ISLAMABAD: As a last resort after losing the election symbol, PTI on Tuesday filed a curative petition with the Supreme Court, seeking to overturn the Jan 13 and Oct 21 rulings that supported the Election Commission of Pakistan’s decision to deny the party its ‘bat’ symbol.

The curative petition is a final remedy that allows the SC to reconsider a dismissed review petition.

The 32-page petition, moved by Advocate Ajmal Ghaffar Toor, says the present petition has been necessitated by circumstances during the hearing and therefore based upon the principle of natural justice.

Besides the verdict is per incuriam and not a judgement at all, argued the petition, adding the petition was relying upon the Aug 22 Mubarak Ahmed Sani case in which the Supreme Court had altered its earlier decision.

Judgement was per incuriam, 32-page petition argues

The petition argues that the judgement was per incuriam, meaning it was made in ignorance of the terms of a statute or rule having the force of a statute. A decision made per incuriam can be considered a mistake and may not be binding.

The petition also relied on the Aug 22 Mubarak Ahmed Sani case, where the SC had altered its earlier decision, setting a precedent for revisiting previous judgements.

On Oct 21, the SC headed by former chief justice Qazi Faez Isa rejected PTI’s petition, seeking to revisit Jan 13 verdict in the bat symbol case.

The review petition was dismissed on the grounds that no illegality or material error in the judgement was pointed out by the petitioner.

During the case, the senior counsel Hamid Khan had pleaded before the apex court that he did not want to argue before a bench headed by a person who “harbours bias against PTI”.

It is the case of the petitioner that both judgements of Jan 13 and Oct 21 were void and non-existent in the eyes of law. The petition has raised questions of public importance with respect to fundamental rights and interpretation of the laws relating to the electoral rights of the people who were true sovereigns, by seeking to invite SC’s attention towards two of its own judgments, the curative review says.

On May 26, 2021, PTI had moved a curative review petition before the SC against Justice Isa who had won a case on a review petition. Then the curative review petition was moved against the majority order in favour of Justice Isa.

Later on July 21, 2023, ex-CJP Umar Ata Bandial rejected in chambers PTI’s curative review petition against Justice Isa whereas Justice Syed Mansoor Ali Shah in his additional note stated that a second review or a curative review or whatever given name, was not maintainable under Article 188 since this provision envisages only one-time exercise of this jurisdiction, whether made on a review petition or suo motu in respect of any of its judgments.

Now the fresh curative petition pleads that the SC judgment of Oct 21 was virtually an ex-parte order as no substantive hearing took place in view of the objections raised against former CJP Qazi Faez Isa and therefore it would serve the interest of justice that the judgement was set aside and the review petition was fixed for hearing again.

The curative review argued that both Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, who were members of the bench which heard the review petition then, signed allegedly a blatantly biased orders, dictated by then CJP and therefore they have disqualified themselves from hearing the present petition.

Published in Dawn, November 13th, 2024

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