' CH. MUHAMMAD IBRAHIM ZIA, J.---The instant application is filed after a period of near about five years for rehearing the appeal decided on 28-6-2005.
2. The brief facts of the case are that the applicant was facing the trial before the District Criminal Court Mirpur for offence of murder, on completion of trial absconded and was awarded sentence of life imprisonment by the trial Court vide order dated 30-11-2001. The applicant opted for absconsion for a period of near about three years and thereafter he filed an application on 19-8- 2004 under section 561-A, Cr.P.C. For treating it as appeal and setting aside the conviction order. He also prayed for extension of benefit of section 382-B, Cr.P.C. The Shariat Court after detailed deliberation and discussion of the facts and legal provision held that the petitioner due to his conduct doesn't deserve for the benefit of section 382-B, Cr.P.C. And ultimately his application was dismissed vide order dated 8-11-2004. The appeal preferred before this Court was also dismissed vide order dated 28-1-2005. The petitioner has, not filed any review petition and remained mum for a period of near about five years. Now he has filed this application for revival and rehearing of the appeal on the strength of some judgments recently passed by the apex Court of Pakistan in relation to the scope of section 382, Cr.P.C.
3. Mr. Muhammad Idrees Mughal, the learned counsel for the applicant stated the facts of the case and vehemently argued that this Court has got vast and uncontrolled powers under section 42-A of the Interim Construction Act, 1974 read with Order XLIII, Rules 1, 2 and 5 of the AJ&K Supreme Court Rules 1978 and other relevant provisions. According to his version, this Court has got powers, irrespective of limitation to entertain any independent application under the above referred provision of law for doing complete justice and passing any order or directions. He referred the judgment of the Supreme Court of Pakistan, wherein it has been held that under the provisions of section 382, Cr.P.C., it is mandatory for the trial Court to extend the benefit of the law to the convict person, therefore, according to his version, the applicant on the strength of the principle of law laid down by the apex Court of Pakistan, is entitled for concession.
4. We have given our earnest thought to the arguments of the learned, counsel for the applicant and also gone through the record. The first question to be attended is the maintainability of this application. The matter has been finally resolved by this Court, whereas this application is filed after passage of near about five years period. The jurisdiction of this Court is determined in the Constitution. The subsection (2) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 speaks that; "Subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law."
' Under the provisions of Interim Constitution Act 1974, and the other laws, this Court is vested with the appellate jurisdiction with the exception of revision against the order of Shariat Court under the provisions of section 25 of the Islamic Penal Laws Enforcement Act, 1974. Against the appellate or revisional orders powers of review are also available subject to certain conditions. But neither the Constitution nor any other law has conferred the original jurisdiction on this Court. So far the question of entertainment of application under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is .Concerned, it is misconceived. The powers of the Court postulated under this section are ancillary and residuary to the jurisdiction conferred on this Court by the Constitution and the law, which are exercised in any case or matter pending before the Court. The applied phraseology of section 42-A very loudly speaks that powers enumerated in this section can only be exercised for doing complete justice in any case or matter pending before this Court.
The phraseology of section 42-A of Interim Constitution Act and Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 are identical. The Supreme Court of Pakistan in Saeed Akhtar and others v. The State (2000 SCM R 383) while interpreting the scope of Article 187 held that; "Article 187 of the Constitution and Order XXXIII of the Supreme Court Rules, can also not be applied as the matter stands finally concluded by judgment of this Court. The applicability of said two provisions cannot be extended to reopen past and closed transaction or to re-agitate the matter which stands finally determined by this Court."
' The same view has been expressed by this Court in Sardar Muhammad Yasin Khan v. Government of. Azad Jammu and Kashmir and 43 others (PLD 1986 SC (AJ&K) 63), while interpreting the scope of section 42-A of the Interim Constitution Act, it was held that:- "This Court indeed has very vast powers but those powers available under section 42-A read with Order XLIII, rule 5 of the Supreme Court Rules are only to be exercised within the realm of jurisdiction conferred on this Court by the Constitution. Section 42, subsections (10), (11) and (12) of the Interim Constitution Act are the relevant provisions relating to the jurisdiction and the mode of its exercise.
The powers under section 42-A of the Constitution though very vast, are, however, to be exercised, as already listed above, within the realm of the jurisdiction made available to this Court."
' The Supreme Court of Pakistan in Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 SC 41), while interpreting the scope of Article 187 after appreciation and discussion of the case-law held that:-- "The above reports do not lay down that an independent proceeding can be initiated under Article 187 of the Constitution but the ratio of the above reports seems to be that once this Court is seized of a lis competently under the relevant law, its power to grant appropriate relief is not controlled by the technicalities of the pleadings or otherwise as clause (1) of Article 187 lays down that subject to clause (2) of Article 175 of the Constitution, the Supreme Court shall have power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of, any, person or word employed in the above clause are " in any, case or matter pending before it". The above words clearly indicate that' the relief referred to in the aforesaid clause can be granted in the case or matter pending before the Supreme Court. It may further be observed that the word "pending" means competently brought before this Court. The provision of Rule 6 of Order XXXIII of the Rules is in line with above Clause (1) of Article 187 of the Constitution as it' provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The above Rule can be pressed into service only in a matter which is competently filed before this Court but it does not give an independent right to initiate proceedings of the nature in question."
' The Pakistan Supreme Court has followed this principle in a case reported as PLD 2005 SC 842. The above reports leave no room for any other interpretation in relation to exercise the powers enumerated in section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, those such powers can only be exercised in the case or matter pending and which is brought competently before the Court. Therefore, after final determination of matter by this Court in an appeal or review, no independent application for rehearing or review of such past aSnd closed case is entertainable.
5. Moreover, the peculiar facts of the case specially the conduct of the applicant is of paramount consideration for disposal of the case. The applicant has clearly confessed in para 6 of the application that on 23-9-2001 he left for England without Court's permission and after a period of near about three years approached the Court. This conduct of the applicant proves that he has no respect for law and Courts, even is not diligent for seeking relief from the Courts. His application under section 561-A, Cr.P.C. Is also lacking reasonable explanation of his absconsion. The Shariat Court passed a speaking order which is well reasoned and this Court has also in the judgment passed on 28-6-2005, handed down a speaking judgment, therefore, the applicant, on merit, has no case. Hence, this application is filed incompetently which stands rejected.