2020 PLP 1424 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, C J.

The captioned appeal has been filed against the judgment dated 14.06.2019, passed by the learned High Court in Criminal Appeals Nos.4 and 5/2018.

2. The gist of the facts is that an FIR in the offences under sections 7, 8, 20 and 37 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014 (ATA) read with section 15(2) of Arms Act 2016 was registered against the appellant and a co-accused. The Government of Azad Jammu and Kashmir vide notification dated 14.07.2016 constituted Joint Interrogation Team (JIT) for investigation followed by its report submitted on 19.10.2016. The report was made the basis for submission of complete challan under section 173, Cr.P.C. on 28.10.2016. The learned Sessions Judge/Judge Anti-Terrorism Court, Kotli, after necessary proceedings and hearing the learned counsel for the parties convicted and sentenced the appellant and the co-accused vide judgment dated 24.05.2018. Against the said judgment, two appeals were filed before the High Court; one by the appellant, herein, and the other; by co-accused. The learned High Court after necessary proceedings partly accepted the appeals by setting aside the judgment of the trial Court to the extent of sentence awarded to the convicts under section 37 of ATA and the remaining sentences awarded by the learned trial Court to the convicts were maintained. Hence, this appeal.

3. Raja Ayaz Ahmed, Assistant Advocate-General, the learned counsel for the respondents has raised a preliminary objection that against the judgment of the High Court relating to conviction under ATA a direct appeal has been filed which is not competent.

4. When the learned counsel for the appellant was confronted in this regard he submitted that he has already filed an application for conversion of the appeal into petition for leave to appeal, thus, his application be accepted and this Court is vested with the power to convert the appeal into petition for leave to appeal. He further argued that the Court has got vast power as the appeal was filed due to misconception, hence, for the ends of justice the same be converted into petition for leave to appeal. 4(sic) We have considered the arguments of the learned counsel for the parties. Admittedly, the learned High Court vide judgment dated 14.06.2019 except one sentence has upheld the conviction passed by the trial Court and against this judgment, the appeal has been filed before this Court on 12.07.2019, whereas, an application for conversion of appeal into petition for leave to appeal has been filed on 05.08.2019. According to the enforced law, the limitation for filing PLA in criminal matter is 30 days, thus, the appellant/petitioner remained negligent and he has not filed any application within the prescribed limitation. On this proposition this Court has already in a number of case held that any application for conversion of appeal into petition for leave to appeal or petition for leave to appeal into appeal after the prescribed limitation is not maintainable. In this regard, in the case reported as Administrator Auqaf (Nazam-e-Alla Auqaf) v. Sain Ghulam Ahmed and others (2014 MLD 238) was held as under: "

5. We have heard the learned counsel for the parties and perused the record. The record reveals that the direct appeal against the judgment of High Court dated 28th March, 2008 was filed on 23rd May, 2008 within the prescribed period of limitation. During the course of arguments on 24th March, 2011, a preliminary objection was raised from the opposite side and we formulated a point to the effect whether the direct appeal under section 42(11)(d)(e) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is competent or not when the value of the subject matter in the lower Court and the appellate Court is not below Rs.50,000/- and the High Court has not altered, varied or set aside the judgment of the Court immediate below. A full bench of this Court reached the following conclusion:-- "We, therefore, hold that the intention of the legislature is clear on the point that if the High Court doesn't vary, alter or set aside the judgment of the Courts below, a direct appeal to the Supreme Court is not competent, although the amount or value of the subject-matter is more than fifty thousand rupees." The judgment on the aforesaid point was delivered on 29th April, 2011 in presence of learned counsel for the appellant. The appellant has moved an application for converting the appeal into P.L.A. on 29th August, 2011 after a period of four months, while limitation for filing P.L.A. in the Court is sixty days from the order/judgment of the High Court. If for the sake of arguments, we consider the argument that the appellant was misled by the above referred judgment of this Court, then too it was enjoined upon him to file application for treating the appeal as P.L.A. soon after the announcement of judgment on 29th April, 2011 or within the period of sixty days. The learned counsel for the appellant could not furnish any explanation of filing application after four months of the announcement of the judgment. The appellant is negligent, therefore, not entitled for condonation of delay. Even otherwise the appellant has not moved any application for condonation of delay. If we treat the period of limitation from the date of announcement of judgment by this Court, even then the application has been filed more than two months beyond the period of limitation. The application is therefore dismissed." In this context reliance can also be placed on the cases reported as Syed Abid Hussain Shah and 3 others v. Administrator Auqaf and another (2016 MLD 161) and Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others (1999 YLR 1426).

5. So far the filing of direct appeal is concerned as according to sub-Article (11) of Article 42 of the Azad Jammu and Kashmir Interim Constitution, 1974 in criminal cases a direct appeal against the judgment of the High Court is only competent if the High Court has reversed the order of acquittal of the accused person and sentenced him to death or to imprisonment for life or, on revision, has enhanced a sentence to a sentence as aforesaid. As in the instant case, the punishment order has been passed by the trial Court and upheld by the High Court, thus, the impugned judgment of the High Court does not fall within the category of sub-Article (11) of Article 42 of the Constitution for filing direct appeal. Whereas all other orders which do not fall within the domain of sub Article (11) can only be challenged by filing a petition for leave to appeal, thus, the direct appeal filed by the appellant is not maintainable. For the above stated reasons, this appeal along with misc. application stands dismissed. SA/90/SC (AJ&K) Appeal dismissed.