2015 PLP 752 (YLR)

RAJA SAEED AKRAM KHAN, J.

This appeal, by leave of the Court is directed against the order of the Shariat Court dated 21-6-2013, whereby the application for review of the order of Shariat Court dated 29-11-2012 filed by the appellant has been dismissed.

2. The relevant facts arising out of this appeal are that the appellant filed an application before the Family/Guardian Judge, Naseerabad for custody of the minor, while respondent No.1 also filed an application for guardianship of the minor. The trial Court vide its consolidated judgment dated 2-5-2012, while accepting the application filed by respondent No.1, dismissed the application filed by the appellant. Feeling aggrieved from the order of the trial Court, the appellant filed an appeal before the Shariat Court. The learned Shariat Court ordered the appellant to deposit necessary expenses for issuance of proclamation to summon the public at large on 29th November, 2012. No one appeared on behalf of the appellant on 29-1-2012, therefore, the learned Shariat Court dismissed the appeal for non-prosecu-tion as well as for non-compliance of the Court order. The appellant challenged the said order by filing an application for restoration of the appeal/ review for setting aside the order of the Shariat Court dated 29-11-2012. The Shariat Court after hearing the parties dismissed the review petition filed by the appellant vide order dated 21-6-2013, Hence, this appeal. 2A. Mr. Manzoor Hussain Raja, Advocate, the learned counsel for the appellant, argued that the judgment passed by the Shariat Court is against law and the facts of the case, which is not sustainable in the eye of law. He argued that the learned Judge of the Shariat Court failed to adhere to the fact that the order has been passed without providing an opportunity of hearing to the appellant and also failed to take into account that on the date fixed the appellant as well as his counsel was not present in the Court. He further argued that the appellant has shown sufficient reason for non-appearance in the written application, which was duly supported by an affidavit. He argued that the learned Shariat Court also erred in law while dismissing the appeal for non-prosecution as well as for non-compliance of the order of the Court, which is against the settled principle of law. The learned counsel contended that the Shariat Court failed to adhere to the law on the subject, while relying upon the judgment of this Court. He lastly argued that the Shariat Court failed to make a difference between the scope of review before this Court under Order XLVI, Azad Jammu and Kashmir Supreme Court Rules, 1978 and before the Shariat Court under section 7(10) of the Shariat Court Act, 1993. 5(sic) On the other hand, Mr. Tahir Aziz Khan, Advocate, the learned counsel for respondents Nos.1 and 2, strongly controverted the arguments advanced by the learned counsel for the appellant, while submitting that the order passed by the Shariat Court is perfect and legal, which needs no interference by this Court. He argued that the order passed by the Shariat Court was liable to be challenged through appeal before this Court but the appellant has not opted the legal remedy of appeal before the right forum. The learned counsel further contended that the appeal against the basic order of the Shariat dated 29-11-2012 is barred by time and even there is no application or prayer either for condonation of delay. He submitted that the order of the Shariat Court through which the appeal was dismissed in default has not been challenged and the same has attained finality. He argued that the appellant failed to bring on record the sufficient reason for non-compliance of the order of the Court for depositing the requisite process fee, therefore, the learned Shariat Court rightly passed the order for non-prosecution. He has relied upon the cases reported as Malik. Zafar Ali Awan and 3 others v. Muhammad Riaz Khan and 7 others (2011 SCR 96), Ch. Zahid Hussain v. Khalil Iqbal and 3 others (2009 SCR 921), Sarwar Khan v. Mehran Bibi and others (2005 SCMR 521) and Purdil Khan v. Aziz-ur-Rehman (2010 SCMR 446).

6. We have heard the arguments of the learned counsel for the parties at length and gone through the impugned order of the Shariat Court along with record made available. Leave has been granted to examine the following questions of law:-- (i) whether the Shariat Court has jurisdiction to impose the different penalties or less stringent order has to be passed. (ii) whether the Shariat Court was justified to decide the review only, whereas, no order has been passed on the application for restoration of appeal arises out of the dismissal order of the Shariat Court dated 29-11-2012.

7. At first, we would like to examine the scope of review before the Shariat Court as the learned counsel for the respondents has strongly argued that no power of the review lies with the Shariat Court. In this regard, the relevant section 7(10), of the Azad Jammu and Kashmir, Shariat Court Act, 1993 reads as under:-- "

7. Powers and procedure of the Court.

(1) For the purpose of the performance of its functions, the Court shall have the powers as are vested in the High Court, while exercising revision, appellate and original and criminal jurisdiction. (2) . (3) . (4) . (5) . (6) . (7) . (8) . (9) . (10) The Court shall have power to review any decision given or order made by it. After careful reading of the opening section 7(10) of the Azad Jammu and Kashmir Shariat Court Act, 1993, it reveals that the Shariat Court for the purpose of the performance of its functions has the powers as are vested in the High Court, while exercising revision, appellate and original civil and criminal jurisdiction. Under section 7(3) of the Azad Jammu and Kashmir Shariat Court Act, 1993, the Court shall have powers to conduct its proceedings and regulate its procedure in all respects as it deems fit and the powers under section 7(10), the Court shall have power to review any decision given or order made by it. After going through the above said provision, it is very much clear that the Shariat Court can review any decision or order passed by it, while exercising the power under section 7(10) of the Azad Jammu and Kashmir Shariat Court Act, 1993. Therefore, the argument of the learned counsel for the respondent that the order impugned before the learned Shariat Court was appealable and as the Shariat Court has not equipped with the powers of review is ill-founded and has no substance. The finding of the learned Shariat Court in this regard is contradictory in nature. On the one hand, the Shariat Court has held that the order impugned sought for review is appealable and on the other hand the Shariat Court observed that the jurisdiction vested for review of the judgment is very limited and quite different to appeal. The scope of review is limited and it can only be exercised on the ground mentioned in section 7(10) of the Azad Jammu and Kashmir Shariat Court Act, 1993 but it cannot be said that the Shariat Court has no power to review its judgment. However, the power can only be exercised in section 7(10) of the Azad Jammu and Kashmir Shariat Court Act, 1993. Here we also would like to observe that the C.P.C. is not applicable in the Family matters. The general principles of C.P.C. are applicable.

8. Now we advert to the next question regarding the applicability of less stringent provision. There is no cavil with the proposition that in a matter if two provisions are applicable then less stringent provision should be applied. In this regard, reliance is placed on a case reported as Messrs Amin Spinning Mills v. Deputy Collector Central Excise and others 2004 PTD 2479 wherein it has been observed as under:-- "

6. If the two views are possible from reading a provision of law, then the view which favours the citizens may be given preference over the second view .." In another case resorted as Barkat Ali v. Sub-Inspector F.I.A. and 4 others [2006 SCR 280], it has been laid down as under:-- "5. ..It is to be noted that it is well settled principle of law that where two Orders are applicable, then the one less stringent should be applied. It has been resolved in various cases that a penal provision should be construed strictly and stringent provision of rule should not applied unless the case does not admit of application of any other provision of C.P.C ." The appeal of the appellant was dismissed for non-prosecution as well as for non-compliance of the order of the Shariat Court dated 29-11-2012, which was not justified. In such like situation, the learned Judge of the Shariat Court was required to dismiss the appeal only for non-prosecution, if the appellant was not present. When two penal provisions are applicable then the less stringent provision should be applied. Whereas, the learned Shariat Court on one hand dismissed the appeal for non-prosecution as well as on the other hand for non-compliance of the order of the Court for depositing the proclamation fee for substituted service of the respondents. However, this fact may be called in question if the review petition or the application for restoration of the appeal is disposed of.

11. As we have discussed hereinabove that the learned Shariat Court under section 7(10) of the Azad Jammu and Kashmir Shariat Court Act, 1993, is vested with the powers of review. Moreover, the Shariat Court has also not held that the Court is not equipped with the powers to review. However, the Shariat Court has observed that the scope of review is limited. In our estimation the Shariat Court was fully competent to treat the review petition as the application for restoration of the case dismissed in non-prosecution.

12. In this eventuality, we deem it proper to remand the case to the learned Shariat Court to decide the case afresh, while keeping in mind the law referred to above and pass a speaking order. Resultantly, this appeal is accepted with no order as to costs. AG/24/SC(AJ&K) Appeal accepted.