' GULZAR AHMED, J.---By these petitions for leave to appeal, the petitioners have challenged common judgment dated 27-3-2012 of the learned Judge in Chamber of the Islamabad High Court, Islamabad, whereby the writ petitions of the petitioners were dismissed.
2. One of the petitions had come up in Court on 28-5-2012 when it was noted by the bench that since no right of review or revision or appeal is provided in the relevant hierarchy, the impugned judgment can be questioned through an Intra Court Appeal. The only question for determination noted was whether the petition can be treated as an Intra Court Appeal and sent back to the High Court for its decision in accordance with law and in this regard notice was issued to the other side.
3. Learned counsel for the petitioner in C.P.L.A. No,,647 of 2012 has apparently conceded for sending back petition of the petitioner to the High Court to be treated as an Intra Court Appeal. The learned DAG, however, opposed such treatment of the petition and contended that in the eventuality where Intra Court Appeal is provided by law against the impugned judgment the petition for leave to appeal will not be maintainable and it has to be dismissed as such and the petitioner may file a separate Intra Court Appeal. In this respect he has relied upon the case of Accountant-General for Pakistan (Revenue) and another v. Zia Mohy-ud-Din and 3 others (PLD 2008 Supreme Court 164); Mst. Gul Jan and others v. Naik Muhammad and others (PLD 2012 Supreme Court 421); Pakistan International Airlines Corporation and others v. Samina Masood and others (PLD 2005 Supreme Court 831) and Tehsil Municipal Administration Murree v. Messrs Premier Gas Link Lahore (2012 SCM R 406). During the course of arguments, the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539) was also considered.
4. We have considered the submissions of the learned counsel for the parties so also the petitioner in person in C.P.L.A. No,,952 of 2012 and have gone through the relevant material and the law. The question for consideration being only to the extent as to whether these very petitions can be returned as an Intra Court Appeal to the High Court for determination in accordance with law. The case of Accountant-General for Pakistan (Revenue) apparently seems to be based upon the similar circumstance as the present one and this Court in paragraphs 4 and 5 of its judgment observed as follows:-- "4. We are not persuaded to agree with the contentions of learned DAG as it has been held in the case of Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831 as under:- "all orders passed under sub-Article (1) of Article 199 of the Constitution shall be appealable under section ,3(2) of Law Reforms Ordinance, 1972 before a Bench of two or more Judges of the same High Court provided that it is not an order of the nature of habeas corpus described in subparagraph (1) of paragraph (b) of the Article. The regulations challenged before the High Court in the instant case squarely fell under clause (1)(c) of Article 199 of the Constitution and, hence, was appealable through an Intra Court Appeal before two or more Judges of the same High Court. In view of section 3, subsection (2) of Ordinance, 1972, the instant appeals and petition are not maintainable before this Court".
S. In view of above learned counsel for the petitioners requested that petitioners may be allowed to file Intra Court Appeals. If said appeals are filed learned High Court may consider the question of coadunation of delay."
' The case of Pakistan International Airlines Corporation is already covered by this judgment. In the case of Mst. Gul Jan the question before this Court was whether in the face of availability of remedy of a direct appeal to this -Court under Article 185(2) of the Constitution whether a petition seeking leave to appeal under Article 185(3) of the Constitution will be maintainable. After elaborate discussion and examining plethora of case-law on the point, a five member bench of this Court while returning the finding that a petition for leave to appeal under Article 185(3) of the Constitution will not be competent in the face of there being a remedy of an appeal to this Court under Article 185(2) of the Constitution, observed in paragraph 9 as follows : -- "We may conclude by observing that the practice of filing a petition for leave to appeal before this Court under Article 185(3) of the Constitution where an appeal is competent before this Court under Article 185(2) of the Constitution or under any statute but has become barred by time amounts to hoodwinking or deceiving the spirit as well as the express provisions of Article 185(3) of the Constitution and such practice must be brought to an end. It must be made clear to all that if an appeal competent before this Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time- barred appeal and seek extension of time or coadunation of delay in filing of the same in terms of rule 2 of Order XII or rule 1 of Order XXII of the Supreme Court Rules, 1980. It must also be made clear to all, through this judgment that no petition for leave to appeal filed under Article 185(3) of the Constitution can be entertained by the office of this Court in any case where an appeal is competent before Nis Court under Article 185(2) of the Constitution or under any statue and that no such incompetent petition for leave to appeal, even if erroneously entertained by the office of this Court can be converted into or treated as an appeal except in the case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal. As regards the present appeals and petitions there is no denying the fact that in all these cases appeals were competent before this Court under Article 185(2) of the Constitution or under some statute but matters had been brought to this Court in the shape of petitions for leave to appeal filed under Article 185(3) of the Constitution at a time when the remedy, of appeal had become barred by time. All these petitions thus filed were, therefore, incompetent and not maintainable at the time of their institution. We are, however, cognizant of the fact the legal position regarding maintainability of such petitions had remained unsettled in the past on account of some inconsistent judgments of this Court referred to above and thus, it would be oppressive, if not unfair, to dismiss these petitions and appeals arising out of the same as incompetent and not maintainable at such, a late stage. It is, therefore, observed that the petitioners/appellants in all the present petitions/appeals may apply before this Court for treating their petitions filed under Article 185(3) of the Constitution as appeals filed under Article 185(2) of the Constitution or the relevant statue and may also apply for extension of time or coadunation of delay in, filing of such appeals and it shall then be for this Court to decide such applications keeping in view the peculiar circumstances of each case. It is, however, made clear that this concession is meant only for the present set of petitions and appeals wherein the petitioners/appellants had been caught up in a confusion or uncertainty which was not of their making and that all future institution of petitions for leave to appeal under Article 185(3) of the Constitution shall be governed by the legal position declared through this judgment."
' The case of Tehsil Municipal Administration, Murree has no direct nexus to the controversy in that the petitioner has filed an Intra Court Appeal which turned out to be not maintainable upon which the petition for leave to appeal was filed which was altogether time barred and this Court did not agree to condone the delay and thus it was dismissed. In the case of Muhammad Anis and others the question apparently was with regard to eligibility of promotion of a civil servant and thus it was held that such matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and the High Court had wrongly assumed jurisdiction which did not vest in it and ultimately in paragraph 16 of the judgment this Court observed as follows:- "We would, therefore, allow the above appeals and set aside the judgment under, appeal with no order as to costs. However, we would remand the case to the Tribunal with the direction that the above writ petition filed by the private respondents before the High Court shall be treated as a service appeal pending before it, which will be decided after notices to the parties concerned in accordance with law."
5. It may be noted that the impugned judgment in both these petitions for leave to appeal is common and is dated 27-3-2012. C.P.L.A. No,,647 of 2012 was filed on 16-4-2012 meaning thereby that it was filed on the 20th day of the announcement of the impugned judgment and an Intra Court Appeal as such will not be out of time. This we observe without examining the time that may have been spent for B obtaining certified copy of the impugned judgment. C.P.L.A. No,,952 of 2012 was filed on 24-5-2012 and apparently an Intra Court Appeal will be out of time but this observation is also made by us without going into the question of time spent in obtaining certified copy of the impugned judgment.
6. Having examined such factual aspect and also perused and discussed the case-law as noted above, we are of the considered view that filing of petitions for leave to appeal by the present petitioners apparently was an innocent mistake based upon the wrong advice of the counsel and of misunderstanding of the petitioner in C.P.L.A. No,,952 of 2012, who perhaps may have followed the petitioner of C.P.L.A. No,,647 of 2012 in availing remedy against impugned judgment and though it may not be maintainable but by dismissing the same and allowing the petitioners to file an Intra Court Appeal will only be a ministerial work which can appropriately be cut short by allowing these very petitions to be treated as an Intra Court Appeals and to be decided accordingly by the High Court. The question of limitation, if any, arising in the Intra Court Appeals will be dealt with by the learned High Court in accordance with law. It may be noted that in the case of Mst. Gul Jan this Court has observed that incompetent petition for leave to appeal filed within period of limitation for filing of a competent appeal can be converted into or treated as an appeal. Similarly in the case of Muhammad Anis, this Court while remanding the case to the Tribunal had directed that the writ petition filed by the private respondent before the High Court shall be treated as a service appeal pending before it, which will be decided after notices to the parties concerned in accordance with law. These two cases provided enough justifications, where technicalities of procedure can well be overcome by converting petition into appeal or remanding the case from one Court to another Court/Tribunal by making the very same case by changing its character, nature or name and decided accordingly.
7. For all what has been discussed above, we dispose of both these petitions by allowing them to be treated as an Intra Court Appeals, to be decided by the High Court in accordance with law.