Asif Saeed Khan Khosa, J.--The raison deter or object of all laws is to regulate the affairs of a society in uniformity and through such uniformity to establish a just order. However, when in order to achieve and dispense justice in individual cases exceptions are contrived or laws are disregarded that promotes confusion and breeds anarchy which, at the end of the road, disturbs social harmony and contributes towards injustice. It is particularly for this reason that the Star Chamber, a Court of equity, was abolished in England because equity had started varying with the size of the Chancellor's foot. Interestingly the appeals and the petitions for leave to appeal in hand highlight the same phenomenon as the precedent cases attracted thereto often underscore an eagerness to dispense justice while seemingly outrunning the necessity of adhering to the Constitutional and legal mandates and what has followed is nothing but chaos and confusion.
Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973 enlists the kind of cases in which an appeal can competently be filed before this Court whereas Article 185(3) of the Constitution provides that in all cases wherein an appeal is not competent under Article 185(2) of the Constitution an appeal shall lie to this Court only if this Court grants leave to appeal. There are also some statutes which provide for an appeal before this Court. The question which has been referred to this Special Bench is as to whether in a case where an appeal lies to this Court and no such appeal has been filed can this Court entertain a petition seeking leave to appeal under Article 185(3) of the Constitution?
2. For facility of reference the provisions of Article 185 of the Constitution are reproduced here in full:-- "185. Appellate jurisdiction of Supreme Court.--(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court--
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or (b)if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c)if the High Court has imposed any punishment on any person for contempt of the High Court; or (d)if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Majlis-e-Shoora (Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (e)if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (f)if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."
Under Section 54 of the Land Acquisition Act, 1894 an appeal lies to this Court in certain matters specified therein and for facility of reference the provisions of Section 54 are also reproduced below: "54. Appeals in proceedings before the Court.--Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary contained in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."
In the case of Water and Power Development Authority through Chief Engineer v. Saadullah Khan and others (1999 SCM R 319) this Court had enlisted some other provisions of different statutes which also provide for an appeal to this Court and it was observed that "Section 48(3) of the Senate Election Act, 1975 and Section 67(3) of the Representation of the People Act, 1976 provide right of appeal to a person aggrieved by the decision of the Election Tribunal. Section 10(1) of the Companies Ordinance provides right of appeal against any order, decision or a judgment of a High Court. Likewise, Section 137(1) of the Income Tax Ordinance also provides a right of appeal from any judgment of the High Court delivered on a reference under the said Ordinance." It is admitted at all hands that in all the appeals and the petitions for leave to appeal at hand an appeal was competent before this Court but instead of availing that remedy the appellants/petitioners have filed petitions for leave to appeal and we have been called upon to determine as to whether such petitions for leave to appeal are competent and maintainable before this Court or not.
3. The question to be answered by us has already been attended to by this Court in many a case but unfortunately on different occasions different Honourable Benches of this Court have handed down judgments which are not in harmony with each other, if not to be termed as mutually conflicting. A resume of such judgments is detailed in the following paragraphs and a perusal of the same would show that in one set of judgments this Court had entertained petitions for leave to appeal filed under Article 185(3) of the Constitution even where appeals were competent before this Court under Article 185(2) of the Constitution or under some statutes whereas in the other set of judgments petitions for leave to appeal were held to be incompetent and not maintainable in such a situation. Before proceeding to resolve this conflict it would be advantageous to refer to all such judgments brought to our notice so that the reasoning contained therein may be appreciated.
4. In the first set of judgments the first case appears to be the case of Haji Muhammad Nawaz u.
Hussain Shah (1990 SCM R 1621) wherein a petition for leave to appeal filed instead of an appeal was entertained and subsequently the same was converted into an appeal and the delay in that regard was condoned. The relevant part of that judgment reads as follows: "This appeal has come up for hearing after notice to parties on an application moved by the appellant for restoration of the status quo order. This appeal was filed as a petition for leave to appeal but has been treated as a direct appeal and on that account held to be barred by 23 days.
The appellant has sought condonation of delay on the ground that he remained under the impression that it was a case of leave to appeal but the office informed him that the appeal lay as of right. As a petition for leave to appeal it was within time but not as a direct appeal. We condone the delay.
Later on in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164), a case under the Land Acquisition Act, 1894, petitions for leave to appeal were not only entertained despite appeals being competent in the matter but such petitions were also decided as appeals only to advance the interests of justice.
The relevant portion of the judgment delivered in that case reads as under: "6. Before touching upon the merits of the case, we may take up the question of limitation. It seems that Civil Appeals Nos, 1-P, 4-P to 9-P, 11-P and 27-P of 1990 filed by some of the landowners are also barred by time by 2 to 15 days. Here as, the N.W.F.P. Government appeals, if they are to be treated as direct appeals, they are time-barred by about 33 days, but if the same are to be treated as appeals with the leave of the Court, the same are within time. Since we are going to examine the judgments in connection with the appeals which are within time filed by the land-owners, we are inclined, to condone the delay in filing of the aforesaid Civil Appeals Nos, l-P, 4-P to 9-P, 11-P and 27-P of 1990 with a view to avoid conflicting judgments. As regards the appeals filed by the Government of N.-W.F.P, we are inclined to condone the delay, if any, in filing of the above appeals as we have condoned the delay in the aforesaid Civil Appeals of the land-owners.
7. We may observe that even otherwise, in our view, it is not necessary to condone the delay in respect of the appeals filed by the N.-W.F.P. Government as they have been filed with the leave of the Court. There is no delay in filing of the above appeals if they are not to be treated as direct appeals under sub-clause (d) of clause (2) of Article 185 of the Constitution read with Section 54 of the Act. We may point out that a right to file a direct appeal under sub-clause (d) of Clause (2) of Article 185 is distinct from a petition for leave to appeal under Clause (3) of Article 185 of the Constitution, inasmuch as under the former provision, a party has a legal right to file a direct appeal, whereas there is no such legal right to obtain leave as a matter of right under Clause (3) of Article 185, and secondly, the period of limitation is also different. Whereas, for filing a direct appeal, the period of limitation provided is thirty days under Rule 2 of Order XII of the Supreme Court Rules, 1980, and for a petition for leave, the period of limitation is sixty days under Rule 1, Order XIII of the Supreme Court Rules, 1980.
8. We are inclined to hold that if a party loses his right to file a direct appeal because of the limitation, he may invoke clause (3) of Article 185 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits.
In the present case, petitions for leave to appeal filed by the N.-W.F.P. Government were within time and were granted by this Court. No objection till the date of hearing was raised by any party. In our view, it will not be just and proper to dismiss the appeals of N.-W.F.P. Government at the stage of regular hearing. Even otherwise as observed, they are within time as they have been filed with the leave of the Court under clause (3) of Article 185 of the Constitution. In this regard, it may be pertinent to refer to the case of Commissioner of Income-Tax, Rawalpindi v. Messrs Lyallpur Cold Storage, Lahore Road, Lyallpur and others (PLD 1987 SC 436), in which this Court condoned the delay of ten days under Rule 2 of Order XII of the Supreme Court Rules, 1980, on the ground that the question involved in the case was of public importance."
Still later in the case of Sardar Abdur Rauf Khan and others v. The Land. Acquisition Collector/Deputy Commissioner, Abbottabad and others (1992 SCM R 1181), a case under the Land Acquisition Act, 1894, the issue regarding maintainability or otherwise of a petition for leave to appeal in a case where an appeal was competent before this Court had been noticed but the same was consciously left to be decided in some other appropriate case. It was observed by this Court as follows: "13. As the judgment, of which review is sought, is sustainable for the aforesaid first reason, in our view, it would be appropriate to examine the question, whether a petition for leave to appeal will be competent under clause (3) of Article 185 of the Constitution even in a case where a party loses his right of appeal under clause (2) thereof in an appropriate case, and not in this case. The above review petitions are, therefore, dismissed."
Subsequently in the case of Investment Corporation of Pakistan v. Syed Jammat Ali Shah and another (1992 SCM R 1195) a time-barred appeal was treated as a petition for leave to appeal and after granting leave to appeal the appeal was allowed by simply following the precedent in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164). This Court had observed in that judgment as reproduced below: "........The instant appeal was filed in this Court which, as per report of the office, is barred by 30 days.
The learned counsel for the appellant relying on the judgment of this Court in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164 submitted that the same may be treated as petition for leave to appeal.
The learned counsel for the respondents was heard in this respect. Following the cited judgment, we convert the appeal into petition for leave to appeal and grant leave as important question of limitation is involved."
Thereafter in the case of Chairman, N.-W.F.P. Forest Development Corporation and others v.
Khurshid Anwar Khan and others (1992 SCM R 1202) the same approach was adopted and the precedent in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164) was followed and although some reasons had been recorded for adopting that approach yet those reasons were not relevant to the question of maintainability of a petition for leave to appeal in a case where an appeal lies to this Court. It was observed by this Court in that judgment as under: "Before closing this order it needs to be mentioned that both the appeals are time-barred. The appeal of the department is time-barred if it is treated as direct appeal. If, however, it is treated as petition for leave to appeal it having been filed within 60 days it is within time. In view of the fact that the error regarding calculation seemed apparent on record, we accordingly, permitted on oral request of the learned counsel for the department to convert the appeal into a petition for leave to appeal and allowed the same reconverting it into appeal, of course, after hearing both the learned counsel. Thus, the question of limitation looses its significance. This procedure was also followed in a recent case of Sardar Abdur Rauf Khan v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad 1991 SCM R 2164.
The appeal of the contractor was not filed within the period of limitation for filing a petition for leave to appeal. Thus, the same is barred by time, whether looked at as a direct appeal or as a petition for leave to appeal. However, having treated it as petition for leave to appeal we, as discussed above, have dismissed the same on merits.
A further point needs to be mentioned that the learned counsel for the appellants before relying on the judgment of this Court in the case of Sardar Abdur Rauf also tried to argue that the period of limitation for filing direct appeal in this Court as provided in the C.P.C. is 60 days, While framing the Rules for the Supreme Court, for filing the appeal the period was fixed as 30 days. And as the period fixed in the C.P.C. a statute, is beneficial to the appellants in Appeal No, 245 of 1990 the same should be adopted in preference to the period prescribed by the rule framed for the Supreme Court.
Apart from the position that acting under the rules framed by virtue of the Constitutional-power the Supreme Court is not bound to follow any other statutory dispensation which comes in conflict with the independence of judiciary; in the context of the present argument the Supreme Court is not even bound by the provisions of the C.P.C. and Cr.P.0 in so far as the regulation and control of practice and procedure of the Court itself is concerned. These assumptions further get support from our Constitutional set up which preserves the independence of superior Courts, by a definite mandate including the command in the Objectives Resolution that independence of the judiciary has to be fully secured. The word 'fully' and 'secured' are explicit enough not to leave any doubt in this behalf."
The case reported as Sardar Abdur Rauf Khan & others v. Land Acquisition Collector/Deputy Commissioner, Abbottabad, etc. (NLR 1992 SCJ 514) was in fact a case of review of the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164) and while dismissing the application for review detailed comments had been made by this Court on the relevant issue in the following terms: "2. By the above Review Petitions, review is sought of the judgment dated 13.07.1991 passed by this Court in Civil appeal No, 1-P of 1990 and other connected Civil appeals. The above Review petitions were admitted to consider the question, whether a Petition for leave to appeal under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution', was not competent when an appeal under clause (2) of the above Article was competent.
3. The facts giving rise to the above Review Petitions are, that Civil Appeals Nos, 1-P and 3-P to 8- P/1990, 4 to 11/1990, 27/1990, 46 to 48/1990, 724 to 727/1990, 235-P and 236-P/1990,' were filed by the owners of the land whose land was acquired, hereinafter referred to as the owners of the land', whereas, Civil Appeals Nos, 115-P to 149-P/1990 were filed by the Government of N.-W.F.P., hereinafter referred to as 'the, Provincial Government', Most of the owners of the land filed aforesaid Civil. Appeals directly under clause (2) of Article 185 of the Constitution but some of the owners of the land and the Provincial Government filed their appeals with the leave of this Court. When the above appeals came up for hearing before this Court, it was urged inter alia by Mr. Abdul Hakeem Khan, learned counsel for some of the owners of the land in the aforementioned appeals, that the Provincial government's appeals were time barred. In support of the above submission, it was contended that the Provincial Government should have filed direct appeals within 30 days under clause (2) of Article 185 of the Constitution, instead of filing petitions for leave to appeal. It has been observed in the judgment, of which review has been sought, that "it seems that Civil Appeals No, 1- P, 4-P to 9-P, 11P and 27-P of 1990 filed by some of the land owners are also barred by time by 2 to 15 days. Whereas, the N.-W.F.P. Government appeals, if they are to be treated as direct appeals, are time barred by about 33 days, but if the same are to be treated as appeals with the leave of the Court, the same are within time".
This Court condoned the delay for the following reasons, referred to in para-6 of the above judgment: "Para-6...........................................................................................
Since we are going to examine the judgments in connection with the appeals which are within time filed by the land owners, we are inclined to condone the delay in filing of the aforesaid Civil Appeals No, 1-P, 4-P to 9-P, 11-P and 27-P of 1990 with a view to avoid conflicting judgments. As regards the appeals filed by the Government of N.-W.F.P., we are inclined to condone the delay, if any, in filing of the above appeals as we have condoned the delay in the aforesaid Civil Appeals of the land owners."
However, after condoning the above delay in filing of the above appeals, it has also been held that "if a party loses his right to file a direct appeal because of the limitation, he may invoke Clause (3) of Article 185 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits."
4. In support of the above Review petitions, Mr. Abdul Hakeem Khan, learned counsel for some of the petitioners, has vehemently urged that as direct appeals under clause (2) of Article 185 of the Constitution were competent, the petitions for leave to appeal, filed by the Provincial Government, were misconceived and, therefore, its above appeals should have been dismissed. To reinforce his above submission, he has relied upon a judgment of this Court in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCM R 2193), in which it has been held that the High Court could not have converted the appeals into revisions as the Order against which the revision was said to be competent, was an appealable order. Reliance was placed on the earlier judgments of this Court in the case of S. Azizul Hasan and another v. Malik Ghulam Muhammad (1971 SCM R 123) and the case of Muhammad Ibrahim and another v. Group Captain Salehuddin and others (1987 SCM R 218).
5. The above cases have no relevancy to the point in issue. The question involved in the present Review Petitions is, as to whether this Court could treat petitions for leave to appeal as appeals. In this regard reference may be made to the case of Haji Muhammad Nawaz v. Hussain Shah (1990 SCM R 1621), in which, instead of filing a direct appeal under clause (2) of Article 185 of the Constitution, a petition for leave to appeal was filed but this Court treated the same as an appeal and has condoned the delay. Mr. Abdul Hakeem Khan is unable to cite any judgment of this Court in which a contrary view might have been taken. It is a well settled proposition of law that this Court has the discretion to treat a petition for leave to appeal as an appeal under clause (2) of Article 185 of the Constitution.
6. Then it was contended by Mr. Abdul Hakeem Khan that neither any application for condonation of the delay was made nor any case for condonation of the delay was made out and, therefore, it is a fit case for review of the judgment on the above point.
7. It is true that there was no formal application for condonation of the delay but this is to be viewed with the factum that it was first time during the arguments that the above question of limitation was raised. However, it was not correct to urge that no ground for condonation of delay was made out. This Court, while condoning' the delay, has given reasons, the relevant portion of which is reproduced hereinabove. The question of condonation of delay has also been touched upon in para 8 of the judgment in question, wherein reliance has been placed on the case of Commissioner of Income Tax, Rawalpindi v. M/s. Layllpur Cold Storage, Lahore Road, Lyallpur and other (PLD 1987 SC 436).
8. We may observe that generally a request for condonation of delay in respect of limitation period is to be made formally through an application but in a fit case, this Court can condone the delay even on the basis of oral request. There is no such prohibition contained in Rule 2 of order XII of the Pakistan Supreme Court Rules, 1980, hereinafter referred to as the Rules' relied upon by Mr. Abdul Hakeem Khan. Since the question of limitation was raised in the midst of the arguments, it was considered just and proper to condone the delay without insisting upon a formal application. In any case, the question of condonation of delay pertaining to limitation period was a matter of discretion. The exercise of the above discretion cannot be reviewed through a review petition. We asked Mr. Abdul Hakeem Khan to cite any case law in which a Court might have recalled the order of condonation of delay of the period of limitation in exercise of review jurisdiction, which he failed to cite. In our view, the question of condonation of delay in respect of limitation period cannot be subject-matter of review.
9. Adverting to the question, whether this Court can entertain a petition for leave to appeal under clause (3) of Article 185 of the Constitution even in a case in which a direct appeal is competent under clause (2) of the above Article, it may be pertinent to refer to Article 58 of the late Constitution of the Islamic Republic of Pakistan, 1962, hereinafter referred to as the late Constitution' which reads as follows: "58. (1) Subject, to this Article, the supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court.
(2) An appeal to the Supreme Court from a judgment, order or sentence of a High Court shall lie as of right where-- (a)the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution.
(b)the High Court had sentenced a person to death or to transportation for life, or (c)the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which Clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal."
A plain reading of the above Article indicates that under clause (3) thereof an appeal with the leave of this Court was provided against a judgment, decree, order or sentence of a High Court in a case to which clause (2) thereof was not applicable.
10. In this regard, it may be pertinent to refer to the case of Syed Masumul Hassan and another v.
Sheikh Muhammad Omer (PLD 1965 SC 466) and the case of Malik Ghulam Hussain v. Haji Muhammad Hayat (PLD 1971 SC 573).
In the above first case the petitioners, instead of filing a Letter Patent Appeal, before the High Court filed petition for leave to appeal. This Court granted the above petition for leave to appeal instead of dismissing the same on the ground of non-maintainability. The relevant portion of the order reads as follows: "After hearing Mr. Ehsan-ul-Haq in support of the petition, we announced grant of leave. It was not brought to our notice at the time that the judgment in question being one delivered by a learned Single Judge of the High Court in second appeal, a further appeal within the High Court was competent, under the Letters Patent, if a certificate has been obtained from the learned Single Judge. The practice of this Court is to entertain petitions for special leave only against final judgments and orders of the High Court, that is such as are delivered or made in a case seeking the final remedy available in that Court. In view of the fact that counsel has been heard, and an order granting leave has been announced, we treat this as a special case, and proceed to state briefly the grounds for leave. But we wish to make it clear that the case is not to be regarded as a precedent."
The same view was reiterated in the above second case in the following terms: "Thus it will be noticed that though the practice of this Court to entertain petitions for special leave only against the final judgments and orders of the High Court, this Court in some cases, has entertained petitions for special leave to appeal without asking the party to seek his remedy by way of Letters Patent Appeal. In my opinion, under Article 58(3) of the defunct Constitution of Pakistan, an appeal lies to the Supreme Court from any judgment of a High Court if the Supreme Court grants leave to appeal. There is no bar to entertain a petition for special leave from the judgment of a Single Judge of the High Court in a case where a Letters Patent Appeal lies. The Court, however, has made it a practice that it will not entertain a petition for special to appeal in a case where the party has not sought the remedy of Letters Patent appeal available in the High Court. Ordinarily, therefore, this Court should not have entertained petition for special leave to appeal. But since leave has been granted to the appellant and the appeal is pending before this Court for more than three years, I consider that it will not be in the interest of justice to dismiss this appeal merely on the ground that Letters Patent remedy is available to the appellant in the High Court. I would, therefore, hold that the appeal is quite competent and overrule the preliminary objection."
11.No doubt that the present case is distinguishable from the above two cases inasmuch as in the case in hand a direct appeal under clause (2) of Article 185 of the Constitution was competent whereas, in the above Reports a direct appeal under clause (2) of Article 58 of the late Constitution was not competent.
12.Since in the judgment, of which review is sought, the petitions for leave to appeal were treated as appeals and the delay pertaining to limitation period was condoned, it was not necessary to have pressed into service the reasons that a petition for leave to appeal would be competent under clause (3) of Article 185 of the Constitution, even in a case where a party could file a direct appeal under clause (2) thereof.
13.As the judgment, of which review is sought, is sustainable for the aforesaid first reason, in our view, it would be appropriate to examine the question, whether a petition for leave to appeal will be competent under clause (3) of Article 185 of the Constitution even in a case where a party loses his right of appeal under clause (2) thereof in an appropriate case, and not in this case. The above Review Petitions are, therefore, dismissed."
Later on in the case of Elahi Bakhsh, etc. u. Mst. Balqees Begum, etc. (NLR 1993 SCJ 32) an incompetent appeal had been filed before this Court which was converted into a petition for leave to appeal and after granting leave to appeal it was allowed. It was held in that case that the appeal had been filed within the period of limitation prescribed for filing of a petition for leave to appeal and, thus, there was no difficulty in converting the appeal into a petition for leave to appeal.
It was observed by this Court in that context as follows: "At the hearing of the case, we noticed that the appellants have filed this appeal under Article 185(2) of the Constitution as of right. Since the order of High Court was passed in the above cases in 2nd Appeal and the value of the subject matter in the suit as well as in appeal was less than Rs.
50,000/-, the appeal as of right is not maintainable in the case under Article 185(2)(d) of the Constitution. However, at the oral request of learned counsel for the appellant, we have treated it as a petition for leave to appeal, and after granting leave to appeal converted it into appeal, and it is disposed of as follows."
In the case of Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Weed and others (PLD 2002 SC 84), a case under the Land Acquisition Act, 1894, no appeal as provided under Section 54 of that Act had been filed but instead a petition for leave to appeal had been filed under Article 185(3) of the Constitution which was held to be maintainable and it was observed by this Court in the following terms: "11. Learned counsel for respondents objected on the maintainability of the appeals on the ground that under Section 54 of the Act, direct appeal is competent before this Court and according to Order XII of Supreme Court Rules, 1980 time prescribed for appeal is 30 days but appellant filed petition for leave to appeal beyond period of 30 days and if the petitions are treated as appeals then they are barred by 8 days and for condonation of such delay no application has been filed.
Reliance in this behalf was placed by him on a judgment of this Court reported in NLR 1999 Rev. 90.
12.Learned counsel for the appellant contended that this Court while granting leave to appeal has already converted the petitions into appeals without making any observation in respect of determination of question of limitation at the time of final hearing of the appeals, therefore, it may be presumed that if there was any delay in filing of appeals that has been condoned. He further stated that the judgment relied upon by respondents' counsel is distinguishable because in that case petitions for leave to appeal were dismissed at the preliminary hearing whereas in the instant case leave to appeal was granted by this Court without making any observation in respect of limitation.
13.We have no doubt in our mind that against decree of the High Court a direct appeal shall lie to the Supreme Court under Section 54 of the Act for which time of 30 days has been prescribed under Order XII, Rule 2 of Supreme Court Rules, 1980 and if appeal has not been filed then a petition for leave to appeal is competent under Article 185(3) of the Constitution of Islamic Republic of Pakistan if filed within 60 days as per Order XIII, Rule 1 of Supreme Court Rules, 1980. Normally in land acquisition cases against the order of the High Court appeal should have been filed but instead of filing appeal if a petition has been preferred then Court is competent to convert it into an appeal and also condone the delay if appeal is found barred, by time in the interest of justice as it has been held in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164. Relevant para therefrom is reproduced hereinbelow:-- "8. We are inclined to hold that if a party loses his right to file a direct appeal because of the limitation, he may invoke clause (3) of Article 185 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits."
The view taken in the above judgment has again been reconfirmed in the case of Chairman, N.- W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCM R 1202. It is to be noted that in the judgment, which the learned counsel has relied, these two judgments were not cited at the bar during arguments. There is yet another distinction in the case relied upon by learned counsel namely that in that case petition for leave to appeal was dismissed at a preliminary stage because leave to appeal was refused whereas in these cases leave has already been granted, therefore, keeping in view the merits of the case which have been discussed hereinabove we are of the opinion that if there is delay of 8 days in filing the appeal that is to be condoned in the interest of justice because merely for such technical reason appellant cannot be non-suited and the impugned order dated 4th November, 1999 passed by the High Court cannot be upheld which on face of it is not sustainable in the eyes of law as it has been pointed out hereinabove while discussing merits of the case. Therefore, while condoning the delay it is held that the appeals were duly instituted. Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellant for getting justice and in such-like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under consideration."
The next in this line of judgments is that delivered in the case of Taza Gul and others v. HO Fazal Subhan (2006 SCM R 504) wherein a petition for leave to appeal had been filed in a case where an appeal was competent before this Court and upon acceptance of an application seeking conversion of the petition into an appeal and upon condoning the delay the petition was ordered to be treated as an appeal because it was found to be a case of bonafide error. It was observed by this Court as under: "7. We have carefully considered the submissions of the learned counsel in the peculiar facts and circumstances of the case in the perspective of the judgment rendered in Fateh Muhammad's case. It is amply borne out from the record of C.P.L.A. that office of this Court had entertained the same without any objection or protest in the normal course of business. It was never pointed out by the office that petition for leave to appeal would not lie or that direct appeal was barred by 29 days. Silence on the part of the office clearly tends to show that office bona fide believed that C.P.L.A. would lie before this Court from the judgment of the High Court even though it had reversed the judgment of the Appellate Court because valuation of the suit in the plaint at Rs. 6,750 was much less than Rs. 50,000. Adverting to the submission of Mr. Kiani there is no material on the file of this appeal that such practice was prevailing in office, we cannot remain oblivious of the practice as prevailing in office, also indicated by the present case in which office did not raise any objection nor called upon the Advocate-on-Record for the petitioners to remove such objection by moving an application for extension of time, which is normally done in all such petitions. It is true that the petitioners applied for certified copy of the judgment of the High Court beyond the expiry of 30 days but the fact remains that the petitioners and their Advocate-on-Record remained under the bona fide impression that 60 days time was available for preferring a C.P.L.A. before this Court. In this view of the matter, element of negligence and/or carelessness can hardly be attributed to petitioners or their Advocate-on-Record. It was the engagement of Mr. Muhammad Munir Peracha, learned Advocate Supreme Court and his knowledge of law that prompted him to take steps for conversion of the C.P.L.A." into appeal and seeking extension of time in filing such appeal beyond the expiry of prescribed period. We do not agree with the contention of Mr. Kiani that the conduct and attitude of the petitioners reflected gross negligence or contumacious disregard for the provisions of law relating to the period of limitation for filing an appeal before this Court. In our considered opinion it was bona fide mistake of fact and misconception of law as the situation was not certain till the judgment was delivered by this Court in Fateh Muhammad's case. Mr. Kiani has also cited Zafar Iqbal Hameed Khan v. Ashiq Hussain 2005 SCM R 1371, in which prayer of conversion of petition for leave to appeal into direct appeal and condonation of delay was declined. With able assistance of learned counsel, we have very carefully gone through this report. The principle laid down in the said case is not applicable to the present facts. There, it was held that this Court was not obliged to allow the conversion of petition into appeal if the litigant was negligent or careless, and it was found as a fact that the petitioner in that case was negligent because, notwithstanding an objection by the office to the maintainability of the petition, no effort was made to remove the objection, but rather the petitioner had insisted upon the maintainability of the petition. The Court also noted that the request for conversion was being made after a delay of five years. In the present case there is a delay of only 29 days and the learned counsel for the petitioner realizing the error in view of the judgment in Muhammad Inayat v. Fateh Muhammad applied in writing for conversion of the petition into appeal and the office had not recorded any objection to the maintainability of the petition.
8. It is well-settled that no person shall suffer for the mistake of the Court. In this case the office had admittedly entertained the C.P.L.A. of the petitioners without any exception, therefore, the petitioners cannot be made to suffer on account of misconception of law and confusion of the legal position in the mind of the Members of the Bar for a pretty long time. Examining the case of the petitioners from every angle, we are of the considered opinion that petitioners do not appear to be guilty of negligence or recklessness in the matter of prosecuting their remedy before this Court.
We are firmly of the opinion that the instant case being of a bona fide error, sufficient cause has been made out for the exercise of discretion in favour of the petitioners in the matter of extension of time. Consequently, we allow the prayer for conversion of C.P.L.A. into appeal and extend the period of limitation for filing such appeal by 29 days. This disposes of C. M. As. Nos, 252 of 2003 and 358 of 2004."
The last of the cases in this set of judgments is the case of Zulfiqar and others v. Shandat Khan (PLD 2007 SC 582) wherein a petition for leave to appeal had been filed within the period of limitation prescribed for filing of an appeal and that petition was allowed to be converted into an appeal and the delay in that regard was condoned by this Court with the following observations: "8..........In the cases in hand the petitions were filed well within thirty days and no condonation was involved if the office had pointed out on presentation thereof that appeals, and not petitions, were competent, the defect could be rectified. Thus in fact, although a mistake was committed by the learned counsel in filing the petitions yet its effect was aggravated by silence of the-office. It is well-settled principle of law that act of the Court or act of a public functionary on the actions of whom a citizen has no control should not be allowed to prejudice anyone. Although contributory negligence by the office could not be pressed as a sole ground to seek condonation of delay yet viewed in the over all peculiar facts and circumstances of the case and the reasons to follow we are of the view that in this case it was an important circumstance, bearing on the question of exercise of discretion. We will also like to observe that mere quoting a wrong provision of law i,e, 185(3) instead of 185(2) of the Constitution on the memo. of petitions originally filed did not stand in the way of this Court to hear the said cases as appeals because even as appeals these were within time. We may also like to refer to the case of Investment Corporation of Pakistan supra in which instead of an appeal a petition was filed. It was heard as such, leave was granted and it was ultimately allowed. We will like to reiterate here that a provision made in a statute for the benefit of an individual could not only be waived but also that such a provision cannot be pressed to his disadvantage. This is being said in the context that right of appeal is much stronger right than the right of filing a petition and if a litigant gives up his right of appeal, he does not necessarily mean that he has given up his right to file a petition. To n6n-suit a litigant for not filing an appeal would in fact amount to punishing him for not hailing a right which enired to his benefit. We accordingly, condone the delay in filing these appeals.
9. The contention of learned counsel for the appellants that Section 3 of the Limitation Act does not apply has not impressed us because even if it does not apply, condonation of delay is in the discretion of this Court and in case it is declined the result would be the same i,e, dismissal of a petition or appeal as bared by time. We are, therefore, not inclined to examine this contention of the learned counsel in further details.
10.As far as the contention of the learned counsel for the respondent, that limitation has the effect of creasing a valuable right in favour of the pre-emptor is concerned, suffice is to say that it is always subject to the discretion of the Court. In these cases, we do not find that the appellants have been negligent or mistake to file the petitions instead of appeals was so reckless that discretion ought not to be exercised in their favour."
5. As against the set of judgments referred to above there have been many judgments rendered by this Court wherein a totally different approach had been adopted and it was categorically held that in a case where an appeal lies before this Court no petition for leave to appeal is competent, maintainable or entertainable. The first in this line of judgments was the case of Water and Power Development Authority through Chief Engineer v. Saadullah Khan and others (1999 SCM R 319), a case under the Land Acquisition Act, 1894, wherein it had clearly been observed that where a statute provides for an appeal to this Court a petition for leave to appeal filed under Article 185(3) of the Constitution cannot be entertained. In the said case despite earlier conversion of some petitions for leave to appeal into appeals such appeals were dismissed as barred by time. It had been observed by this Court in the judgment handed down in that case as follows: "10. Learned counsel for both the parties, it appears from the arguments addressed by them and from their applications and the reply pertaining to these objections, are not on principle in disagreement that Section 54 of the Land Acquisition Act does provide remedy of filing appeal against the judgment and decree of the High Court passed in appeal arising from the proceedings initiated through reference under Section 18 of the Act. Learned counsel for the petitioners' submission was that the said remedy has become inoperative and ineffective on account of omission of Section 110, C.P.C. from the parent Act by way of amendment which according to him controlled the substantive part of Section 54 of the Land Acquisition Act providing right of appeal and secondly that the petitioners had remedy of appeal under Section 54 of the Act as well as of filing petition under Article 185 of the Constitution and it was privilege of the petitioners to choose one of the said remedies and once he had selected the remedy of filing a petition instead of appeal, the said right could not be denied to him and he could not be non-suited on that account.
11. In order to resolve this controversy, it is necessary to examine the relevant provisions of the Constitution and the law.
Article 175(1) of the Constitution provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established under or by any law.
Clause (2) of this Article, however, ordains that no Court shall exercise jurisdiction unless it is conferred upon it by or under any law. Article 187 of the Constitution empowers this Court to pass any judgment and decree in a case before it which, in the circumstances of the case, it deems fit, which power is controlled by clause (2) of Article 175 (ibid) which is indicative of the express command of the Constitution that jurisdiction conferred on this Court by or under any statute has been saved.
12.We have examined provisions of different Statutes which provide right of appeal against the orders, judgments or decrees passed thereunder to the Supreme Court independent from Article 185 of the Constitution which has the sanction of Article 175(2) of the Constitution and the Supreme Court in such cases having been conferred the jurisdiction to hear appeals, therefore, the aggrieved person has to avail the said remedy for if no appeal is filed thereunder, the proceedings taken thereunder and the judgment and order passed would attain finality by virtue of the concerned Statute itself. We may mention some of such Statutes.
Section 48(3) of the Senate Election Act, 1975 and Section 67(3) of the Representation of the People Act, 1976 provide right of appeal to a person aggrieved by the decision of the Election Tribunal.
Section 10(1) of the Companies Ordinance provides right of appeal against any order, decision or a judgment of a High Court. Likewise, Section 137(1) of the Income Tax Ordinance also provides a right of appeal from any judgment of the High Court delivered on a reference under the said Ordinance.
13.Land Acquisition Act, 1894 is a complete Code as regards acquisition of land, making of reference under Section 18 thereof in case there is dispute about adequacy of compensation to be awarded for the acquired land to the owners thereof etc., and the decisions/judgments passed by the Court on such reference. The said section is also a complete Code as regards remedies of an aggrieved person against the said judgments passed by the Courts and Section 54 provides that an appeal would lie to the Supreme Court against the judgment of the High Court passed in those proceedings of course with reference to Section 110, C.P.C. If no appeal is filed as provided in this section, the legal consequence to follow is that the judgment and decree would become final as regards the said Act and would be enforced and given effect to.
14. No doubt that Section 54 of the Land Acquisition Act provides that the procedure as regards appeal under it would be regulated with reference to Section 110, C.P.C. From a bare reading of Section 54 of the Act, it is clear that Section 110, C.P.C. is not to override or control the substantive provision of the section as regards remedy of appeal itself but it only provide that the procedure to be followed for filing the appeal would be the same as provided in Section 110, C.P.C. which merely lays down certain matters as regards value of the subject-matter etc. 15.The argument of the learned counsel for the petitioners is based on the erroneous assumption of law that with the omission of Section 110, C.P.C. from the present statute by way of amendment, the same stands automatically omitted and repealed from Section 54 of the Land Acquisition Act, 1894 and was no more part of the same and applicable. Section 110, C.P.C. had been legislated by way of reference in Section 54 of the Act, therefore, the same shall be deemed to have been incorporated in the said section as it was part of C.P.C. on the date of its incorporation and would continue to be the part of Section 54 thereof till the said section itself is amended and reference to Section 110, C.P.C, is omitted. Mere omission of Section 110 from C.P.C. would not automatically operate and its omission from Section 54 of the Land Acquisition Act. Even if it be assumed for the sake of arguments that with the repeal of the said section from C.P.C., it cannot be read as part of Section 54 of the Act, the same in our calculated opinion would not render ineffective the substantive provision of remedy of appeal as provided in the said section rather the appeal would lie without fulfilment of any condition as prescribed by Section 110, C.P.C. It could not be maintained by the learned counsel for the petitioners on the basis of accepted principles of interpretation of statutes that by omission of Section 110, C. P. C, as argued the remedy of appeal itself had been frustrated or destroyed.
16.In the light of the above discussions and the scrutiny of the different provisions of different laws and in particular Articles 175(2) and 187 of the Constitution, we are of the firm view that in this case, the remedy of the petitioners was to file appeal under Section 54 of the Land Acquisition Act, 1894 and these petitions are not maintainable on that account.
17.Learned counsel for the petitioners argued that as was done in Civil Petitions Nos, 246 and 247- P of 1996, these petitions may also be converted into appeals and decided accordingly. These petitions are hereby ordered to be converted into appeals and the Office shall register the same as such.
18. The appeals are admittedly barred by time by 29 days. No application for condonation of delay has been made by the appellants even after the objection of maintainability of civil petitions having been raised long before orally and thereafter by written application. It is well-settled law that ignorance of law is no excuse. The appellants had been insisting upon that they could maintain the civil petitions and avail of the said remedy even if remedy under Section 54 of the Land Acquisition Act of filing appeal was also available. We see no reason to condone the delay as the respondents have acquired a valuable right arising from the impugned judgments and decrees which provide compensation for the land acquired from them."
The next in the line of such cases was the case of Zafar Iqbal Harmed Khan v. Ashiq Hussain and 2 others (2005 SCM R 1371) wherein despite competence of an appeal before this. Court a petition for leave to appeal had been filed and it was held that such petition was not competent. A request made in that case for allowing conversion of the petition into an appeal and for condoning the delay in that regard was declined and the petition was dismissed as not maintainable. It was observed in that case as under: "5. The first question which requires resolution is whether this petition filed by Zafar petitioner had been competently filed or whether it was only an appeal which was maintainable before this Court in the present case.
6. Article 185 of the Constitution confers jurisdiction on this Court to hear and determine appeals from the judgments, decrees, final orders and sentences of a High Court. The six clauses of sub- article (2) of this Article 185 talk of judgments, decrees, orders and sentences which are appealable before this Court. And sub-article (3) of the said Article, states that a petition seeking leave to appeal shall be competent only in situations which were not covered by sub-article (2) of the said Article 185.
7. What follows, therefore, is that a petition under Article 185(3) of the Constitution would be maintainable before this Court only where it could be shown that the case was one which was not covered by the said sub-article (2) meaning thereby that a petition for leave to appeal could be entertained by this Court only in cases which fell outside the purview of Article 185(2) of the Constitution and such a petition would be incompetent if the judgment or order etc. sought to be impugned, was appealable. Maintainability of a petition under Article 185(3) was thus, conditional upon the non-availability of a right of appeal under Article 185(2) of the Constitution.
8. In the case before us, the Honourable High Court had set aside the appellate judgment of the Court immediately below it and it was also a case where the value of the subject-matter of the dispute in the Court of first instance as also in the Appellate Court was not less than fifty thousand rupees. Needless to add that the subject-matter of the dispute in the present case was the suit- land which, according to the pre-emptor petitioner was worth rupees two lakhs and which according to the vendee-respondent was worth rupees six lakhs but which, in any case, was more than fifty thousand rupees. The situation is, therefore, covered by sub-article (2) of Article 185 of the Constitution. The relevant part of the said provision reads as under:
9. The learned Advocate Supreme Court for the petitioner, referring to the provisions of Section 18 of the. West Pakistan Civil Courts Ordinance of 1962, however, submitted that the factor determining the availability or non-availability of the right of appeal was dependent upon the value of the suit which in the present case, as has been mentioned above, stood fixed at Rs. 8,694. The relevant part of the said provisions of Section 18 reads as under: 10.The submission is misconceived because appeals to this Court from the judgments etc. of a High Court are not governed by the said Section 18 of the Ordinance of 1962 but are regulated by Article 185(2) of the Constitution. Therefore, whatever may have been provided by the said Section 18 was irrelevant for our purposes and what was relevant to resolve the present controversy was clause (d) of sub-article (2) of Article 185 of the Constitution which declared the value of the subject-matter of the dispute to be the determining factor as against the provisions of the said Section 18 which talked of the value of the original suit to be the guiding factor. Needless to add that the value of the subject-matter of the dispute in the present case was, admittedly, more than rupees fifty thousand.
11.In this view of the matter, the impugned judgment of the High Court could be questioned before this Court only through an appeal under Article 185(2) of the Constitution and a petition under Article 185(3) was, therefore, not competent.
12.Ch. Imdad Ali Khan, the learned Advocate Supreme Court for the petitioner then, relying upon Haji Muhammad Nawaz v. Hussain Shah 1990 SCM R 1621; Chairman N.-W.F.P. Forest Development Corporation and others v. Khurshid Anwan Khan and others 1992 SCM R 1202 and Inayatullah Khan v. Obaidullah Khan and others 1999 SCM R 2702, Submitted that this petition be treated, today on 09-05-2005, as an appeal against the judgment of the Lahore High Court passed about five years ago and that the delay of the said about five years be condoned.
13.We have considered this request of the petitioner but do not feel persuaded to grant the same.
14.The precedent cases cited by the learned Advocate Supreme Court cannot be understood as laying down a law that whenever a litigant is negligent in the matter of reading a simple provision of the Constitution and whenever he files a petition which is not competent and whenever he insists on the maintainability of such a petition despite an objection and a warning from the office of this Court, then this Court must always treat such a petition as an appeal and that this Court must feel further obliged, in all such cases, to condone the delay which was caused only and only through the negligence of such a litigant.
15.The above-mentioned authorities are, in fact, only some of the situations where this Court had shown indulgence in some given cases. We have however, noticed lately that such a laxity shown by this Court was encouraging negligence and carelessness instead of breeding caution and diligence. Therefore, we consider it neither appropriate nor desirable to continue to show such a lenient tolerant treatment to one party at the cost of the other. As has been noticed above, the provisions of Article 185(2)(d) of the Constitution are couched in rather simple words which do not admit of any ambiguity and confusion. The least that can be said about a party filing a petition under Article 185(3) of the Constitution when it has a right to file an appeal under Article 185(2)(d), is that such a party is grossly negligent. Needless to add that the law favours only the diligent and not the negligent.
16.Having thus considered the matter in issue from all angles, we do not feel persuaded to come to the aid of the petitioner. This petition is, therefore, dismissed as being incompetent."
Subsequently in the case of Ghulam Muhammad and others v. Government of Balochistan and others (2007 SCM R 41) a petition for leave to appeal filed before this Court in a case where an appeal was competent was held to be not maintainable and a request for conversion of the petition into an appeal was disallowed by this Court in the following terms: "5. The submissions put forth on behalf of the petitioners by their learned counsel in support of the civil miscellaneous application have been considered in the light of the above said cited case-law.
Admittedly, vide impugned judgment, the decree of the First Appellate Court being immediately below to the High Court was set aside and thus, the same was amenable to appeal before this Court by filing direct appeal as the subject-matter of the dispute was not less than Rs. 50,000 but instead, petition for leave to appeal was incompetently filed, which was entertained, as such, without any objection by the office. During pendency of this petition, the above said C.M.A. has been filed, on behalf of the petitioners requesting for condonation of the delay of 29 days for treating this petition as an appeal against the judgment impugned herein on the grounds noted above.
In the case of Chairman, N.-W.F.P. Forest Development Corporation and others, this Court, white seized of the matter, observed that the petition for leave to appeal if treated as a direct appeal was time-barred and as a petition for leave to appeal was within time, by keeping in view the facts of the case concluded that error in filing the petition for leave to appeal instead of direct appeal seemed apparent on record, entertained the oral request of the counsel for the appellant converted the petition into appeal after hearing both the parties by holding that the question of limitation, thus, lost its significance.
In the case of Taza Gul and others, it was held by this Court that instead of filing direct appeal, petition for leave to appeal was filed, the office did not raise any objection to the maintainability of the petition but after publication of the judgment of this Court in the case titled Muhammad Inayat v. Fateh Muhammad reported in 2003 SCM R 875, the petitioners in the said case filed application for converting the petition for leave into appeal under Article 185(2)(d)(e) well the Constitution of Islamic Republic of Pakistan, 1973, as well as they also filed application for condonation of delay as direct appeal was barred by time. The Honourable Bench in the said case held that as the office had entertained the petition for leave to appeal without any exception, therefore, the petitioners could not be made to suffer on account of misconception of the law, confusion of the legal position in the minds of the members of the Bar for a long time. Accordingly, it was concluded that the petitioners were not guilty of negligence or recklessness in the matter of prosecuting their remedy before the Supreme Court and the case being of a bona fide error, as well as sufficient cause was made out for exercise of discretion in favour of the petitioners for extension of time for filing direct appeal, accordingly, the petition for leave to appeal was converted into appeal and application was allowed.
6. The ratio of the above reported judgments, obviously for extension of time for conversion of petition for leave to appeal into direct appeal depended upon the factum of bona fide error and sufficient cause shown for exercise of the discretion in the matter of extension of time coupled with the contributory factor on the part of the office in entertaining the petition for leave to appeal instead of direct appeal without any objection or exception.
It is thus, abundantly clear that entertaining the petition for leave to appeal though not maintainable and incompetently filed by the office without objection was not the sole factor and reason for condoning the delay for conversion of the petition into direct appeal but simultaneously the other factors and the circumstances of each case were taken due notice of and considered for condoning the delay in entertaining the request for conversion of the petition into direct appeal which as well depended upon showing of sufficient cause, bona fide error or misconception of law and confusion; recklessness and negligent conduct, if any as the case may be.
7. The learned Advocate-on-Record in the case is a senior counsel, who without taking due notice of the fact that vide impugned judgment the decree of the learned First Appellate Court being immediately below to the High Court was set aside, and the value of the subject matter of the dispute was admittedly not less than Rs. 50,000 directly appealable to this Court under Article 185(2)(d)(e) of the Constitution but petition for leave to appeal was filed without being diligent about the above quoted provisions of the Constitution, and always supposed to be within the notice and knowledge of the learned counsel of a long standing at the Bar, hence it could not be said or expected that the error in filing the petition for leave to appeal on his part was not negligent or reckless, therefore, the same could not be condoned lightly merely because the office entertained the petition for leave to appeal without objection. The sole responsibility for not availing the remedy of appeal as provided by the Constitution would not rest on the shoulders of the office, therefore, in such circumstances of the case, sufficient cause has to be shown for condonation of the delay, which occurred in making the request for conversion of the petition into direct appeal, completely lacking. The C.M.A. seeking for conversion of petition for leave to appeal into direct appeal was filed on 25.4.2006 after an inordinate delay while this petition was filed on 21-10-2005, which therefore, seems, to be not a bona fide mistake, error or misconception with regard to the above quoted provisions of Article 185 of the Constitution except that due to negligent and reckless conduct instead of filing appeal, petition for leave to appeal was filed by not availing the permissible legal remedy against the impugned judgment, which conduct in our considered opinion is not condonable in view of the dictum laid down by this Court in the case of Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCM R 1371 nor-the tenure of lapse till the date of filing of the C.M.A. on the subject for conversion of the petition into direct appeal has been found to be condonable by enlarging the time for the purpose. The learned counsel also failed to make any submission with regard to the misconception of law which, as urged in the C.M.A. resulted in filing the petition for leave to appeal.
8. Thus, in view of the above reasons, C. M. A. No, 57/Q of 2006 is dismissed and consequently, Civil Petition No, 111/Q of 2005 is dismissed being incompetent."
Later on in the case of National Logistic Cell v. Rukhsana Parveen Nazeer and another (2008 SCM R 55) a similar approach was adopted with similar conclusions and it was observed by this Court as follows: "3. In terms of Article 185(2)(d) and (e) of the Constitution a direct appeal as of right would be competent before this Court but instead C.P.L.A. has been filed on 2-8-2004. Under Order XII, Rule 2 of the Pakistan Supreme Court Rules, 1980 memo. of appeal is required to be filed within 30 days from the date of grant of certificate by the High Court or from the date of impugned judgment, decree or final order of the High Court. We have considered the question of converting this petition into appeal. Evidently present petition cannot be converted into an appeal as in that event it would be barred, by 29 days. Indeed no effort was made for conversion of petition into appeal and no endeavour was made to account of inordinate delay in the memo. of petition.
4. In the circumstances, the petition is dismissed as incompetent and not maintainable at law."
Thereafter in the case of Muhammad Hussain and others v. Dr. Zahoor Alam (2010 SCM R 286) an incompetent petition for leave to appeal was initially allowed by this Court to be converted into an appeal but subsequently this Court had refused to condone the delay in that regard and the appeal was dismissed as barred by time. In that case this Court had observed as under: "It is pertinent to mention here that appellants had filed petitions against the impugned judgment of the Lahore High Court on 10-2-2001 and office was directed by this Court to register the petitions as direct appeals vide order dated 3-7-2002 in the absence of the respondent/plaintiff by observing prima facie filed within time.
Limitation in direct appeals is thirty days. Petitions, when filed, were within the limitation which, had become time-barred when office was directed by this Court vide order dated 3-7-2002 to be treated as appeals. It is an admitted fact that appellants did not file direct appeals in terms of Article 185(2)(d)(e) and (3) of the Constitution of the Islamic Republic of Pakistan as evident from order dated 3-7-2002 reproduced hereinabove. There is divergent view of this Court qua dismissing the appeals as time barred or entertaining the appeals considering to be filed within time. Recent trend of this Court is to dismiss the appeals as time-barred. See Ghulam Muhammad's case (2007 SCM R 41), Ashiq Hussain's case (2005 SCM R 1371) and Rukhsana Parveen Nazeer's case (2008 SCM R 55). The following are the judgments wherein the delay was condoned in such like cases:--
(i) Khurshid Anwar Khan's case (1992 SCM R 1202) Taza Gul's case (2006 SCM R 504)
(iii) Muhammad Inayat's case (2003 SCM R 875)
As the appellant did not file direct appeals within time, therefore, keeping in view this conduct of the appellant we are not inclined to exercise discretion in favour of the appellant while exercising our discretion under Article 185 of the Constitution without adverting to the divergent view of the Court regarding condonation of delay in filing petitions instead of appeals or not."
Recently in the case of Qaiser Mushtaq Ahmad v. Controller of Examinations and others (PLD 2011 SC 174) an incompetent petition for leave to appeal had been dismissed by this Court as not maintainable because an appeal to this Court was competent and quite recently an identical approach was adopted in the case of Mst. Kokab Benazir Fatima v. Muhammad Ashraf and others (2011 SCM R 1315) wherein this Court had observed as follows: "4. We have heard the learned counsel for the parties and examined the available record. It would be advantageous to reproduce Articles 185(2)(d), 185(3) of the Constitution:-- It flows from the plain reading of Article 185(2)(d) of the Constitution that for determining the question as to whether the appeal or petition would be competent, amount or value of subject- matter of the dispute in the Court of first instance should not be less than Rs. 50,000 and the judgment, decree and order appealed from was varied or set aside by the Court immediately below. Furthermore the value of the subject-matter in dispute in the Court of first instance had to be looked into and not the value of the original suit. Both the learned counsel admitted that the value of the subject-matter of suit was more than Rs. 50,000 and order passed by the learned Single Judge for rejection of the plaint was varied by the learned Division Bench of the High Court of Sindh. In the instant case value of the subject-matter of the dispute i,e, agreement to sell and the quantum of damages claimed in the plaint in the Court of first instance definitely exceeded from Rs. 50,000 and the judgment of the learned Single Judge was set aside, therefore, the present petition in view of Article 185(2)(d) of the Constitution was barred.
5. In the above backdrop, we are of the firm view that under the circumstances only the direct appeal under Article 185(2)(d) of the Constitution was competent and thus the present petition was not maintainable under Article 185(3) of the Constitution. The learned counsel has neither filed any application for conversion of this petition into appeal nor any application for condonation of delay was made. On Court's query, learned counsel for the petitioner admitted that on the date of filing of instant petition, the period for filing appeal had already elapsed and as such the appeal had already become time barred. Needless to add that this Court in appropriate cases and in exercise of its discretion has ample powers to condone the delay caused in filing an appeal 'provided sufficient and reasonable cause within the parameters of law has been shown for condonation of delay. Reference can be made to "Ghulam Muhammad v. Government of Balochistan (2007 SCM R 41)". This Court, while dilating upon the same issue in a case reported as 'Muhammad Nawaz v. Sardara (2008 SCMR 1953)" took the same view. It may be noted that the petitioner till date failed to file any application either for conversion of this petition into appeal or for condonation of delay. As the petitioner did not file any application justifying the conversion of this petition into appeal or for condonation of delay, therefore, there is no sufficient cause before us for conversion of this petition into appeal and condone the delay.
6. For the foregoing reasons, the present petition stands dismissed on the ground of its in- competency and being untenable."
The last and the latest in the line of such judgments is that handed down in the case of Muhammad Ryas v. Allied Bank Limited (2011 SCM R 1347) wherein a petition for leave to appeal filed in similar circumstances had met the same fate and it was observed by this Court as under: "4. We have heard learned counsel for the parties and examined the available record. It flows from plain reading of Article 185(2)(d) of the Constitution that for determining the question as to whether appeal or petition would be competent, amount or value of subject-matter of the dispute in the Court of first instance should not be less than Rs. 50,000 and the judgment, decree and order appealed from was varied or set aside by the Court immediately below. In the instant case, admittedly, the judgment rendered by the Labour Court (original Court) was varied and set aside by the learned High Court and the petitioner claimed pensionary benefits amounting to Rs.
8,38,000, which was the subject-matter in dispute in the Court of first instance, therefore, we are of the view that present petition in view of Article 185(2)(d) of the Constitution was barred and only the appeal was competent.
5. We were inclined to convert this petition into appeal, however, found that the petition was not filed within a period of 30 days and if we now convert the same into appeal it would become barred by time. It may be noted that the petitioner has neither filed any application for conversion of this petition into appeal nor for condonation of delay. In view whereof, there is no sufficient cause before us for conversion of the petition into appeal or for condonation of delay.
6. For the foregoing reasons, the present petition being incompetent and untenable stands dismissed."
6. We have carefully gone through all the precedent cases detailed above and, it is observed with utmost humility, we have not felt persuaded to agree with the first set of judgments through which petitions for leave to appeal filed under Article 185(3) of the Constitution had been entertained by this Court in cases where appeals were competent before this Court either under Article 185(2) of the Constitution or under some statute. It is our considered opinion that as expressly provided by Article 185(3) of the Constitution itself, a petition for leave to appeal under Article 185(3) of the Constitution is competent and maintainable only where an appeal to this Court does not lie under Article 185(2) of the Constitution. As a matter of fact the provisions of Article 185(3) of the Constitution come into play and become relevant only in those cases where an appeal before this Court as provided in Article 185(2) of the Constitution is not competent. It was categorically observed in the majority opinion expressed by this Court in the case of Mahmood Hussain Larik, and, others v. Muslim Commercial Bank Limited (2009 SCM R 857) that: "A bare reading of the aforementioned provisions of the Constitution relevant to the facts of the case at hand would indicate that an appeal would lie to this Court as of right if they are covered under Article 185(2)(d) and (e) for which the limitation is 30 days. Obviously if they were not so covered then leave to appeal has to be sought from this Court in terms of Article 185(3) for which limitation is 60 days per the rules." and even the minority opinion expressed in that case concurred in that respect in the following words: It needs to be emphasized that in all matters not covered by Article 185(2) the Constitution does not confer a right of appeal upon the party aggrieved by the judgment of the High Court. It only confers a discretion upon. this Court to grant leave to appeal to enable this Court to lay down correct principles of law under Article 189 or perform its duty to do complete justice in a matter under Article 187. Well-known precedents show that leave is normally granted only to decide important questions of law or could even be refused if the interests of justice are not fostered by its grant."
We are quite clear in our minds that a petition for leave to appeal under Article 185(3) of the Constitution and an appeal under Article 185(2) of the Constitution or under any statute are not only mutually exclusive remedies but are also not interchangeable remedies suiting convenience of a party. We may add that treating such distinct remedies as interchangeable may be offensive even to the scope of such remedies because, by virtue of the provisions of Rule 2 of Order XIII and Rule 1 of Order XXIII of the Supreme Court Rules, 1980, the scope of a petition for leave to appeal is restricted only to "points of law which arise for determination" whereas by virtue of Rule 3 of Order XII and Rule 1 of Order XXII of the Supreme Court Rules, 1980 an appeal lies against all "objections to the decision of the High Court" and such objections may include inter alia objections to factual determinations and appraisal of evidence which may be alien to the scope of a petition for leave to appeal. On account of mutual exclusivity in the matter of competence and distinct scopes of maintainability of these two remedies any consideration based upon the interests of justice for holding a petition for leave to appeal under Article 185(3) of the Constitution to be maintainable where an appeal is competent under Article 185(2) of the Constitution or under some statute ought to be irrelevant to the question of competence or maintainability of such a petition because under Article 175(2) of the Constitution "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". No provision of the Constitution or any law confers any jurisdiction on this Court to hold a remedy to be maintainable in the interests of justice where it is actually not maintainable under the Constitution or the relevant law. It may also be pertinent to mention here that by virtue of Article 4(1) of the Constitution "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen "and by virtue of Article 5(2) of the Constitution "Obedience to the Constitution and law is the inviolable obligation of every citizen". It goes without saying that an indolent, negligent or careless litigant failing to file an appeal before this Court where such appeal was competent cannot be allowed to achieve his object through an incompetent petition for leave to appeal and thereby to try to snatch away a vested right already accrued to the opposite party by efflux of time. It is trite that what cannot be done directly cannot be allowed to be achieved indirectly. In most of the cases belonging to the first category referred to above petitions for leave to appeal had been allowed to be converted into appeals beyond the period of limitation prescribed for filing of an appeal without appreciating that the period of 30 days provided for filing an appeal under Rule 2 of Order XII of the Supreme Court Rules, 1980 can be extended under the said rule only in a case where an appeal has actually been filed and the period of limitation of 60 days provided for filing a petition for leave to appeal under Rule 1 of Order XIII of the Supreme Court Rules, 1980 can be extended only where a petition for leave to appeal has actually been filed. We understand that it would be inapt to apply the provision regarding extension of time for filing of an appeal to something which has actually been filed before the Court as a petition for leave to appeal. To us the appropriate course to be adopted in such a situation would be to dismiss the incompetent petition for leave to appeal as not maintainable leaving the relevant party to file a time-barred appeal and to seek extension of time in that regard under the appropriate rule. However, an exception to this would be a case where an appeal to this Court is competent but a petition for leave to appeal has mistakenly been filed but the same has been filed within the period of limitation prescribed for filing of an appeal and in such a case the question of extension of time may be irrelevant because such a petition for leave to appeal can be treated as an appeal filed within the requisite period of limitation. Such a case would be a case of misdescription only and the law is settled by now that mistakenly mentioning of a wrong provision of law does not denude a Court of its jurisdiction where such jurisdiction exists.
7. As regards the cases under the Land Acquisition Act, 1894 and under any other statute providing for an appeal to this Court we entertain no manner of doubt that the remedy available to a litigant under such statutes is to be governed by that statute and not by or under the provisions of Article 185(3) of the Constitution which has relevance only to the provisions of Article 185(2) of the Constitution and not to any other law or statute and this aspect of the matter already stands clinched by this Court in the case of Water and Power Development Authority through Chief Engineer v. Saadullah Khan and others (1999 SCM R 319). We, therefore, declare that no petition for leave to appeal is competent or maintainable before this Court under Article 185(3) of the Constitution if the remedy of appeal provided under the relevant statute is not availed of by the concerned party and, as already observed above, no such incompetent petition for leave to appeal filed under Article 185(3) of the Constitution can be converted into an appeal under the relevant statute.
8. In some of the above mentioned cases belonging to the first category an incompetent petition for leave to appeal had been allowed to be converted into an appeal merely because the office of this Court had failed to object to maintainability of the petition for leave to appeal at the time of its presentation. With profound respect, we have not been able to subscribe to such an approach because any failure on the part of the office of this Court to raise an objection to maintainability of a petition for leave to appeal cannot make such a petition competent or maintainable. It hardly needs to be observed that two wrongs, i,e, one on the part of the litigant or his counsel in filing an incompetent petition and second on the part of the office of this Court in failing to object to filing of such incompetent petition, do not make a right nor such two wrongs create any right in favour of a party where no such right exists under the Constitution or the law. There is no gainsaying that ignorance of law is no excuse, be it on the part of a litigant or his counsel or on the part of the office of this Court.
9. 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 condonation 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 this Court under Article 185(2) of the Constitution or under any statute 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 the 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 u der Article 185(2) of the Constitution or the relevant statute and may also apply for extension of time or condonation of dela. n filin 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.
10. The question referred to this Special Bench is answered in the terms recorded above.