2002 PLP 3455 (YLR)

Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 ref. (b) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑Ss.452/447/147/149‑‑‑tffences Against Property (Enforcement of Hudood) Act, 1985, S.17 (3)‑‑‑Appeal in Supreme Court against the judgment of Shariat Court‑‑‑Filing of copy of grounds of appeal of the Shariat Court with the memorandum of appeal or petition for leave to appeal in Supreme Court is mandatory. Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 ref. Muhammad Ayub Sabir, Advocate for Appellant. Raja Liaquat Ali Khan, Advocate for Respondents. Date of hearing: 21st June, 2002. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against judgment of the Shariat Court dated 17‑3‑2001, whereby the appeal filed against the order of the District Criminal Court Kotli was dismissed.

2. The brief facts of the case are that a F.I.R. was lodged on 28‑4‑1994 with the Police Station Kotli against the accused respondents alleging that the appellant complainant was running a shop in Supply Bazar, Kotli. On 21‑4‑1994, the accused respondents came there and after demolishing the shop forcibly committed `Harrabah' by taking away rupees one lac and etc. and other debris of the shop which valued rupees twenty thousand. The police registered a case against the respondents under sections 452, 447, 147, 149, A.P.C. and sections 17(3) of the Offences Against Property (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as the Hudood Act) against the accused‑respondents. Subsequently, after investigation charge under section 17 (3) of the Hudood Act was dropped by the Investigating Agency on the ground that the same was not proved. The challan in the rest of the offences was filed in the Court of S.D.M. Kotli. Thereafter, a private complaint was presented in the District Criminal Court by the appellant alleging that the Investigating Agency dropped the offence under section 17 (3) of the Hudood Act against the accused persons with ulterior motives. However, the other offences under which the accused persons were facing trial in the Court of S.D.M. i.e. under sections 452, 147, 149 and 447 A.P.C. were also mentioned in the complaint. The District Criminal Court summoned the accused respondents in all the aforesaid offences instead of summoning them under section 17 (3) of the Hudood Act. Thus, separate criminal proceedings about the same incident started against the accused‑respondents, ix, one of the Court of S.D.M. and the other in the District Criminal Court. The accused respondents filed an application stating therein that they were facing trial on the same allegations in two Courts separately, i.e., one in the District Criminal Court and the other in the Court of S.D.M. which is not warranted by law and in any case the allegation of committing offence under section 17 (3) of the Hudood Act was fallacious and was found to be incorrect by the Investigating Agency. It was further argued that during the period of more than seven years no evidence was adduced by the complainant in the District Criminal Court. Thus, it was prayed that the complaint against them may be dismissed under section 249‑A, Cr.P.C. The District Criminal Court accepted the application and dismissed the complaint filed by the appellant, herein, against the accused persons. The appeal tiled before the Shariat Court also met the same fate. It is against the order of dismissal of appeal by the Shariat Court that the present appeal has been preferred.

3. We have heard the learned counsel for the parties. However, it is not necessary to recount here the respective contentions of the parties because we are of the view that the appeal is incompetent and entails dismissal for non‑filing of the copy of grounds of appeal with the appeal.

4. It has been argued by the learned counsel for the respondents that the copy of grounds of appeal of the Shariat Court has not been filed within the period prescribed for filing appeal in this Court. It has been contended that under rule 3 of Order XIII of the Supreme Court Rules read with provision contain in rule 1 of Order XXIII of the said Rules, it is mandatory to file such grounds in this Court within limitation. He has referred to an authority of this Court reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others [1999 YLR 1426] in support of his contention wherein the law on the subject has been discussed in detail and it has been held that tiling of copy of grounds of appeal of the Shariat Court with the memorandum of appeal or petition for leave to appeal in this Court is mandatory. The perusal of the record shows that the appellant, herein, tiled the copy of the said grounds of appeal in this Court alongwith application which was submitted on 12‑6‑2001 wherein it has been stated that grounds of appeal could not be filed at the time of filing the appeal and thus the same were being filed there was also a prayer for condoning the delay. It may be observed here that no reason for the condonation of delay was mentioned in the application. It is well‑settled principle of law that prayer for condonation of delay could be made only if the sufficient and convincing reasons are advanced in that regard. However, in the instant case no reason has been given for condonation of delay in filing the copy of the grounds of appeal of the Shariat Court in this Court. Therefore, we upheld the principle laid down in the authority cited by the learned counsel for the respondents and dismiss the appeal on preliminary ground stated above. Thus, the same is hereby dismissed. N.H.Q./324/SC(AJ&K) Appeal dismissed.