2005 PLP 614 (YLR)

Date of hearing: 7th October, 2004. KHAWAJA MUHAMMAD SAEED, ACTG. C.J.‑‑‑A preliminary objection has been raised in this case regarding application of Order XIII, rule 3, sub rules (1)(i) and (ii) of the Supreme Court Rules, 1978. For the decision of preliminary objection it is not necessary to mention in detail the facts of the case Suffice it to say that Muhammad Siddique complainant, presented an application to the S.H.O. Police Station Choki, who was patrol duty along with some other official of the police to the effect that Naseeb Ali. deceased, was his son‑in‑law whose house was being constructed by Karamat Hussain, accused‑respondent. According to the complainant, the accused‑respondent took his son‑in‑law for hunting on 15‑5‑1999 where he killed him by his .12‑bore gun on the same day at 7‑30 p.m. He also mentioned Muhammad Akram, Muhammad Maroof and Mst. Sarnia Bibi as eye witnesses of the occurrence and disclosed the motive for occurrence a past enmity over a piece of land. This report was sent to the police station Choki by S.H.O. along with endorsement on which a case under section 302, APC was registered against the accused‑respondent and after completion of the challan the same was submitted to the trial Court. The trial Court conducted the trial as required by law, whereby Karamat Hussain was convicted under section 302, APC and sentenced to suffer 8 years rigorous imprisonment. He was further convicted under section 13 (Ordinance XX) of the Arms Ordinance, 1965 and sentenced to undergo two years simple imprisonment. This judgment was assailed by the accused‑ respondent through an appeal before the Shariat Court on 25‑11‑2000.

2. For the enhancement of sentence, an appeal/revision petition was also filed by the complainant along with the father of the deceased before the Shariat Court on 21‑12‑2000. Both the cases were consolidated by the learned Judge in the. Shariat Court and were disposed of through a consolidated judgment, dated 20‑8‑2003. Against this judgment an appeal was filed by the complainant and the father of deceased before this Court on 8‑9‑2003. Along with the memo. of appeal before this Court only the copy of grounds of appeal filed by the accused‑respondent before the Shariat Court was filed. The copy of grounds of appeal/revision, taken by the complainant and father of deceased, who are appellants before us, for enhancement of sentence to the accused‑respondent in the Shariat Court, was not appended with the memo. of appeal before this Court. In the office note it was mentioned that it was a mandatory requirement to present with the memo. of appeal both the copies of appeals which were filed by the contesting parties before the Shariat Court but the appellants before us did not file the memo. of appeal /revision filed by them for the enhancement of sentence in the Shariat Court therefore, the instant appeal was incompetent.

3. The aforesaid objection was also highlighted by the learned counsel for the accused respondent before us, therefore, it was felt appropriate to resolve this objection before entering into the merits of the case.

4. Mr. Zafar Hussain Mirza, the learned counsel for the accused‑respondent, argued that under Order XIII, rule 3, sub rules (1)(i) and (ii) of the Supreme Court Rules, 1978, it was mandatory for the appellants to present the grounds of appeal filed by them for enhancement of sentence in the Shariat Court along with the memo. of appeal filed by the accused‑respondent for setting aside his conviction order recorded by the trial Court. As the copy of appeal seeking enhancement in the sentence of accused has not been filed along with the memo. of appeal before this Court, therefore, the appeal filed by the present appellants, according to the learned counsel, is not maintainable.

5. Conversely it was submitted by Raja Saadat Ali Kayani, the learned counsel for the appellants, as follows:‑‑ (i) that the judgment appealed against has been recorded against the judgment of the Shariat Court and not that of the High Court, therefore, compliance of Order, XIII of the Supreme Court Rules, 1978 is not necessary; and (ii) that the accused‑respondent has been acquitted from the charges leveled against him, therefore, there is no question of enhancement of sentence involved. The filing of copy of grounds of appeal with the memo. of appeal before this Court is therefore, not necessary for the decision of the present case and non‑filing of the same, in the circumstances of the case, is not fatal. The learned counsel placed reliance on a case reported as Sardar Aftab Ahmed v. Sardar Khurshid Hussain and others 1999 PLC PLC (C.S.) 40, which was a service appeal in which in the light of the facts of that case it was laid down that Order XIII, rule 3, sub‑rules (1)(i) and (ii) of the Supreme Court Rules, has no application; therefore, it was held that absence of memo. of appeal filed before the Service Tribunal will not entail the dismissal of appeal.

6. We have taken into consideration the respective arguments of the learned counsel for the parties and gone through the record of the case. The Supreme Court Rules have been framed in such a manner so that the Court should not consider itself unable to decide petitions for leave to appeals or appeals in absence of relevant record. Therefore, the copies of all such record are required to be provided before the Court for the application of judicial mind to draw prima facie some conclusion for and against the controversy involved at the moment when the case is presented before the Court for consideration and order. Therefore, when more than one appeals are filed in the same case before the High Court by the contesting parties then, in order to form an opinion about the impugned judgment, the Court is supposed to take into consideration the respective contentions of the parties before the High Court. The principle behind it is that judiciary must remain alive to the people sense of right and wrong only then it shall able to dispense justice in essence as well as in form while deciding controversy between them. The accused‑respondent was convicted by the trial Court. He had challenged the legality of his conviction order before the Shariat Court, whereas reeling aggrieved from the same order, the complainant as well as the father of deceased had also filed an appeal/revision petition for the enhancement of sentence. The appeal of appellants herein was dismissed whereas the appeal of accused, respondent was allowed and he was ultimately acquitted in the case.

7. In view of above, in our consider view, there is no need to consider tip grounds of appeal filed before the Shariat Court for the enhancement of sentence because the order of acquittal has been recorded by the Shariat Court in favour of accused‑respondent. The only question which needs resolution is as to whether the acquittal order is in accordance with law, in the circumstances of the case, or not. Therefore Order XIII, rule 3, sub‑rules (1)(i) and (ii) of the Supreme Court Rules. 1978, has got no application in this case. Moreover it is a criminal matter; the accused‑respondent was blamed for having committed a murder of his friend on the basis of past enmity over a piece of land. The trial Court convicted him, whereas the Shariat Court in exercise of appellate jurisdiction recorded the order of acquittal in his favour. This being a murder case, therefore in order to do complete justice, we deem it proper to look into the case as a whole. Therefore, the preliminary objection, in view of above reasons, stands repelled. The office shall fix the appeal for arguments on merits. H.B.T./129/SC(AJ&K) Order accordingly.