' MUHAMMAD AZAM KHAN, C.J.---In petition for leave to Appeal No,234/2013, counsel for the respondents, raised an objection that the petition for leave to appeal has been filed from the judgment and decree of the High Court in the matter relating to the compensation of land acquired under the Land Acquisition Act, 1894 and under section 54 of the Land Acquisition Act, 1894, direct appeal lies in the Supreme Court, therefore, the petition for leave to appeal is not competent. The petition for leave to appeal being incompetent, merits dismissal. On this objection, all the above titled petitions for leave to appeal arising out of the acquisition proceedings under the Land Acquisition Act have been ordered to be clubbed and heard by the full bench.
2. Sardar Muhammad Azam Khan, advocate, counsel for the respondents, argued that under section 54 of the Land Acquisition Act, 1894, direct appeal lies in the Supreme Court. Petition for leave to appeal is not maintainable. It merits dismissal. He referred to section 54 of the Land Acquisition Act, 1894 and the judgment of this Court recorded in the case reported as Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058.
3. Mr. Javed Najmussaqib, advocate, argued that direct appeal in acquisition proceedings is not provided under law. A direct appeal is competent in the Supreme Court under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in the case where value of the subject matter is not less than Rs,50,000/- and in all other cases a petition for leave to appeal can competently be filed under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
4. Haji Ch. Muhammad Afzal, advocate, submitted that the direct appeal is competent only in the cases provided in section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and in all other cases petition for leave to appeal lies under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. He referred to the case reported as Commissioner of Income Tax, Muzaffarabad v. Messrs United Builders Corporation (1985 CLC 1102).
' In the case reported as Commissioner of Income Tax, Muzaffarabad v. Messrs United Builders Corporation (1985 CLC 1102), this Court observed that in the cases not falling under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 only petition for leave to appeal is competent.
5. Mr. Muzaffar Ali Zaffar, Additional Advocate-General, counsel for the petitioners in Civil PLA No,304 of 2013, argued that only a petition for leave to appeal can competently be filed in the acquisition proceedings. Under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, direct appeal is not competent in the cases where judgment of the High Court is patently illegal and against the record. The learned Additional Advocate-General referred to the cases reported as Hyderabad Development Authority through MD., Civil Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84) and judgment of this Court recorded in the case reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary, Azad Jammu and Kashmir Government, Muzaffarabad (PLD 1990 SC (AJ&K) 23).
6. Raja Hassan Akhtar, advocate, counsel for the respondents,. In Civil PLA No,304/2013, argued that under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, if value of the subject matter in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees and the High Court has varied or set aside the judgment or decree of the Court below, then direct appeal is to be filed in this Court. The learned counsel argued that this Court in the case reported as Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and 38 others PLD 2012 SC (AJ&K) 21 has observed that when the value of the subject matter is not less than fifty thousand rupees and the High Court has altered or varied the judgment of the Court immediately below, then direct appeal is to be filed in this Court under section 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Petition for leave to appeal is not competent. He requested for dismissal of the petition for leave to appeal filed by the Secretary Industries and others.
7. We have heard the learned counsel for the parties and perused the record. Firstly we will deal with the objection of Sardar Muhammad Azam Khan, advocate, that under section 54 of the Land Acquisition Act, 1894, direct appeal is competent. Section 54 of the Land Acquisition Act, 1894 enforced in Pakistan is reproduced as under:-- "54. Appeals in proceedings before Court.---Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary 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."
(Underlining is ours)
' A plain reading of the section reveals that the appeal from the decree of the High Court shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 and Order XLV thereof. The words "Supreme Court" have been substituted for the words "Majesty in Council" by the amending Ordinance of 1961. Before the said amendment, the words used were "Majesty in Council".
8. In Azad Jammu and Kashmir the Land Acquisition Act, 1894, was adapted and enforced through the Adaptation of Laws Act, 1959. Land_ Acquisition Act finds place at Serial No,50 of the schedule to the said Act. Section 54 of the Land Acquisition Act, 1894, adapted and enforced in Azad Jammu and Kashmir is reproduced as under:-- "54. Appeals in proceedings before Court. ---Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary 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 Majesty in Council subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 and in order XLV thereof."
(Underlining is ours)
' The scheme of section 54 is that an appeal shall lie to the High Court from an award or 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 "Majesty in Council" subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 and Order XLV thereof. The words "Majesty in Council" have been substituted by the words "Supreme Court" in the year 1961 in Pakistan but the substitution took place much later after the adaptation of Act in Azad Jammu and Kashmir. The words "Majesty in Council" have not been substituted or amended in Azad Jammu and Kashmir. After the enforcement of Azad Jammu and Kashmir Interim Constitution Act, 1974, under section 42(11) direct appeal lies to the Supreme Court, if the value of the subject matter in the Court of first instance as well as in the High Court is not less than fifty thousand rupees and the High Court has varied or altered the judgment/decree of the Court immediately below and in all other matters where direct appeal is not competent, a petition for leave to appeal can be filed under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The counsel for the respondents remained objecting on the strength of observations made by this Court in the case reported as Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058 and section 54 in misconception because it was provided in section 54 of the Land Acquisition Act enforced in Pakistan that direct appeal lies in the Supreme Court. The same provision has not been substituted/amended in Azad Jammu and Kashmir therefore, the objection is not tenable and it is overruled.
9. Now we will advert to the jurisdiction vested in this Court. Section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 confers jurisdiction upon the Supreme Court of Azad Jammu and Kashmir. Subsection (2) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, postulates that the Supreme Court shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law subject to the provisions of this Act. Subsection (2) is reproduced as under:- "42. Supreme Court of Azad Jammu and Kashmir.---(1)
(2) 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.
(3) .
(4) .
(5) .
(6) .
(7) .
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15) "
' What appears from the plain reading of subsection (2) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is that the Supreme Court has jurisdiction conferred upon it by or under any other law. Under section 42(10) of the AJ&K Interim Constitution Act, 1974, subject to the succeeding provisions of this section, the Supreme Court of Azad Jammu and Kashmir shall have jurisdiction to hear and determine appeals from the judgment, decree, final orders or sentence recorded by the High Court of Azad Jammu and Kashmir and subsection (11) of section 42 of the Act provides the cases where direct appeal lies to the Supreme Court and subsection (12) of section 42 provides that the appeal shall lie to the Supreme Court in the cases to which subsection (11) doesn't apply and the Court grants leave to appeal. Subsections (11) and (12) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 are reproduced hereunder:-- "(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir.--
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced to death or to 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 the Council 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;
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act.
(12) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of the High Court in a case to which subsection (11) doesn't apply shall lie only if the Supreme Court of Azad Jammu and Kashmir grants leave to appeal."
' The proposition in hand relates to section 42(11)(d) and (e) of the Act, which provide that the appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree or final order of the High Court of Azad Jammu and Kashmir 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 the Act of the Council 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. The proposition came under consideration of this Court in a case reported as Muhammad Sharif and 7 others v. Azad Government and others 1998 CLC 2052, wherein it was observed that under section 42(11)(d) direct appeal is competent only if value of the subject matter in the Court of first instance was and in appeal is not less than fifty thousand rupees and the High Court has altered the judgment. The proposition again came under consideration of this Court in the case reported as Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and 38 others PLD 2012 SC (AJ&K) 21 wherein it has been held as under:-- "15. It, therefore, follows that under clauses (d) and (e) of subsection (11) of section 42 of the Interim Constitution Act, 1974 a direct appeal lies to the Supreme Court if the amount or value of the subject matter in the first Court as well as in appeal before the Supreme Court is not less than fifty thousand rupees or any increased sum specified by the Act and the judgment, decree or final order placed before the Court is varied or set aside by the High Court OR ' If the judgment, decree or final order by the High Court involves directly or indirectly claim or question respecting property of fifty thousand rupees, amount or value and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below."
' The provision i.e, section 42(11) of the Azad. Jammu and Kashmir Interim Constitution Act, 1974 is unambiguous. When the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court immediately below, then a direct appeal lies in this Court.
10. The jurisdiction is conferred upon the Supreme Court under section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 by the Constitution Act or by or under any law. Example of such other law is section 25 of the Islamic Penal Laws (Enforcement) Act, 1974, under which an appeal lies to the Supreme Court from the judgment, of the Shariat Court. Under section 63(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, an appeal lies to the Supreme Court from the judgment of Azad Jammu and Kashmir Election Tribunal. Under section 9 of the AJ&K Shariat Court Act, 1993, any party to any proceedings before the Court under section 6 aggrieved by the final decision of the Court in such proceedings may prefer an appeal to the Supreme Court. Under section 14(5) of the Azad Jammu and Kashmir Family Courts Act, 1993, an appeal lies to the Supreme Court if the Supreme Court grants leave to appeal on a substantial question of law of public importance. What transpires from the language of section 42(11) and the Acts referred to above, is that a party has a right to file an appeal under section 42(11) of the Act or by or under any law referred in section 42(2). The appellant can file appeal in the Supreme Court on all objections he takes while appeal under section 42(12) lies in the cases where subsection (11) doesn't apply and if the Supreme Court grants leave to appeal on a legal question. It follows that under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 this Court has jurisdiction to hear and determine appeals from the judgment and decree, final orders and sentence of the High Court whereas under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, a petition for leave to appeal shall be competent only in a situation, which is not covered under the provisions of section 42(11) of the Act. Thus, it is concluded that under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 if the 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 and the High Court has varied or altered the judgment, decree or final order appealed from, only direct appeal is competent in this Court and the petition for leave to appeal is not maintainable. The question came under consideration of this Court in a number of cases. In the case reported as Muhammad Sharif and 7 others v. Azad Government and others 1998 CLC 2052 the subject in dispute in the Court of first instance and also in appeal was more than fifty thousand rupees and the High Court affirmed the judgment of the trial Court, therefore, it was observed that direct appeal is not maintainable and the petition for leave to appeal lies under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The relevant portion of the judgment is as under:-- "Although it is correct that the subject matter of the dispute in the Court of first instance and also in the appeal was more than fifty thousand rupees but the constitutional provision extracted above is applicable only if the decree appealed from has varied or set aside the decree of the Court immediately below. The above mentioned provision has no application to a decree of affirmation.
This legal proposition was judicially settled in judgment of this Court pronounced in Azad Jammu and Kashmir Government through Chief Secretary v. Sikandar Khan, Contractor and others 1991 CLC 561. It was observed in that judgment that: 'In the present case, as already noted, decree passed by the learned District Judge was affirmed by the High Court. The law is clear that clause (d) reproduced above does not apply to judgments of affirmation even if the amount of value of the subject-matter is more than Rs,50,000/-. The appeal is, therefore, liable to be dismissed on this ground also.'
' In the present case the High Court has affirmed the decree passed by the Court below, therefore, the constitutional provision under reference is not applicable to the present situation. Realizing the mistake committed by him, Sardar Muhammad Azad Tariq, subsequently moved an application that the memorandum of appeal may be treated as petition for leave to appeal. This prayer is in order and we have no hesitation in accepting the petition and we, therefore, treat the memorandum of appeal as petition or leave to appeal and, keeping in view points involved in the case, we convert the petition as an appeal and proceed to decide it accordingly."
In the case reported as Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058, an objection was raised before this Court that petitioners have filed petitions for leave to appeal from the judgment of the High Court whereas an appeal lies to this Court under section 54 of the Land Acquisition Act, 1894. This Court while acting in misconception that the words "Majesty in Council" in the original section 54 have been substituted by the words "Supreme Court" due to the reason that the Act referred to was the Land Acquisition Act enforced in Pakistan in which amendment/substitution was brought in the year 1961. The judgment was delivered due to this misconception and it was observed at page 294 that there has been a common practice of filing petition for leave to appeal instead of direct appeal. The petitions were treated as appeals. It was observed in para 5 as under:-- "5. We have given our due consideration to the arguments advanced at the Bar and perused the relevant record. The first question which needs resolution is as to whether the petitions for leave to appeal in the instant case could be treated as appeals under section 54 of the Land Acquisition Act despite the fact that instead of appeals, the petitions for leave to appeal were filed in this Court. It may be stated that in view of the fact that there has been a common practice to file petitions for leave to appeal instead of direct appeals under section 54 of the Land Acquisition Act and the fact that this Court has also been allowing such petitions for leave to appeal, it would be in the interest of justice that the petitions for leave to appeal may be treated as appeals under section 54 of the Land Acquisition Act, particularly so when there is no limitation period fixed for such appeals either in the Supreme Court Rules or in the Land Acquisition Act. A reference may be made to a case reported as Water and Power Development Authority v. Sadullah Khan and others (1999 SCM R 319), wherein the petitions for leave to appeal were treated as appeals under section 54 of the Land Acquisition Act, despite the fact that the petitioners didn't move an application in that regard but merely made an oral request during the course of arguments at a belated stage.
The petitions for leave to appeal were converted into appeals despite the fact that the petitioners had been all along insisting that the petitions for leave to appeal were competent, irrespective of the provisions contained in section 54 of the Land Acquisition Act. Therefore, we treat these petitions for leave to appeal as appeals under section 54 of the Land Acquisition Act read with section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974."
11. The learned counsel for the petitioners in all the petitions for leave to appeal have requested that if the Court comes to the conclusion that only a direct appeal under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 lies in the matter and that the petition for leave to appeal under section 42(12) of the Act is not maintainable, then the petitions for leave to appeal may be converted into appeal and delay, if any, be condoned. They are ready to file the Court fee as required under the Supreme Court Rules, 1978. The proposition was considered by the court in the cases reported as Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058 and Azad Government and 2 others v. Mukhtar Saeed Qadri and 2 others (2000 YLR 2016), wherein the petitions for leave to appeal were converted into appeals and delay was condoned on the ground that direct appeal under section 54 of the Land Acquisition Act, lies in this Court. The question of delay came under consideration of this Court in the case titled Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and others (Civil Appeal No,31/2008, decided on 18-1-2012). The appellant filed a direct appeal from the judgment of the High Court dated 23-3-2008 on 23-5- 2008. During hearing of the case a point was formulated that whether direct appeal is competent when the High Court has not altered or varied the judgment or decree of the Court below and value of the subject matter in the Court below as well as in the High Court was not less than fifty thousand rupees. After - hearing arguments along with some other cases, the judgment was announced on 29-4-2011 and it was declared that direct appeal in this court under section 42(11) is competent only if value of the subject matter in the Court of first instance and before the High Court is not less than fifty thousand rupees and the High Court has altered the judgment of the lower Court. The High Court has not altered the judgment in the said case, therefore, after the order of this Court announced on 29-4-2011 the appellant filed an application for condonation of delay on 29-8-2011, after a period of five months and five days of the objection and four months of the announcement of judgment. The delay was not condoned on the ground that the application for converting the appeal into petition for leave to appeal has been filed after a period of four months from announcement of the judgment while period for filing appeal is sixty days.
12. In another case titled Ch. Muhammad Afzal v. MDA and others (Civil Appeal No,62/2008, decided on 28-5-2012), the appellant filed a direct appeal in this court from the judgment of the High Court dated 17-10-2008. The facts of the case were that the appellant filed a suit for recovery of 3.5 million rupees. The suit was dismissed. The appellant filed an appeal in the High Court which was also dismissed. The appellant filed a direct appeal under section 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in this Court. At the time of hearing arguments, the appellant was confronted that the High Court has not altered or varied the judgment of the Court below, how the direct appeal is competent. The learned counsel sought adjournment. Later on the learned counsel filed an application for conversion of appeal into petition for leave to appeal on the ground that due to misconception of law inadvertently instead of filing petition for leave to appeal, he has filed direct appeal. The application was dismissed on the ground that the judgment in Chief Administrator Auqaf's case was announced on 29-4-2011 in which it was held that direct appeal under section 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 lies if the amount of subject matter is not less than fifty thousand rupees and the High Court has varied or set aside the judgment and decree of the Court below and the judgment has been reported. He has filed the application for conversion of appeal into petition for leave to appeal on 28-1-2012. The delay was not condoned. The application was dismissed.
13. All the above referred petitions for leave to appeal arise out of the proceedings under the Land Acquisition Act, 1894. There are two judgments of this Court reported as Government of Pakistan v.
Muhammad Shall Khan and 4 others 2000 YLR 3058 and Azad Government and 2 others v. Mukhtar Saeed Qadri and 2 others (2000 YLR 2016), whereby on misconception of law it was declared that direct appeal under section 54 of the Land Acquisition Act lies to the Supreme Court and it remained common practice, that instead of appeals, petitions for leave to appeal are being filed, therefore, irrespective of delay, the petitions for leave to appeal were converted into appeals. Due to these two judgments, the petitions for leave to appeal are being filed in this Court irrespective of the fact that value of the subject matter in the lower Court and in appeal before the High Court is not less than fifty thousand rupees and the High Court has altered the judgment of the Reference Judge. Due to misconception and in spite of the judgment of this Court delivered in the case reported as under:--- ' Muhammad Sharif and 7 others v. Azad Government and others 1998 CLC 2052, wherein it was held that if the value of the subject matter in the Court below and in appeal is not less than fifty thousand, rupees and the High Court has altered the judgment of the lower Court, direct appeal under section 42(11) lies in this Court, the office never objected to the filing of petitions for leave to appeal and entertained the same. This is negligence on the part of the petitioners, hence it is an act of the court because the office of the Supreme Court remained entertaining petitions for leave to appeal in the matters arising out of the proceedings under the Land Acquisition Act, where value of the subject matter in the Court of first instance and in the High Court was not less than fifty thousand rupees and the High Court had altered or varied the decree of the court immediately below. The proposition in hand came under consideration of the Supreme Court of Pakistan in a recent case reported as Mst. Gul Jan, and others v. Naik Muhammad, and others PLD 2012 SC 421.
After detailed survey of case-law and discussing divergent judgments on the subject, it was resolved that all the petitions for leave to appeal where direct appeal under section 54, Land Acquisition Act, lies to the Supreme Court, are incompetent. It was also observed that due to unsettled legal position regarding maintainability of such petitions, and inconsistent judgments of the Supreme Court, it shall be oppressive and unfair to dismiss the petitions for leave to appeal and appeals arising out of the same as incompetent and not maintainable at such a late stage.
The petitioners were provided an opportunity for filing application for conversion of the petitions for leave to appeal into appeals and vice versa. It was observed in para 9 of the judgment as "9. We may conclude by obserting 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 that 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 their petitions and appeals arising out of the same as incompetent and not maintainable at such a late stage. It is, therefore, observed that the petitioners/appellants in all the present petitions/appeals may apply before this Court for treating their petitions filed under Article 185(3) of the Constitution as Appeals filed under Article 185(2) of the Constitution or the relevant statute and may also apply for extension of time or condonation of delay in filing of such appeals and it shall then be for this Court to decide such application keeping in view the peculiar circumstances of each case..
(Underlining is ours)
14. Thus, it can safely be held that in the cases where value of the subject matter in the Court of first instance and in appeal before the High Court is not less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court below, direct appeal under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, lies in this Court and in the cases not covered by section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, petition for leave to appeal under section 42(12), is maintainable. The petitions for leave to appeal in the cases arising out of land acquisition proceedings under the Land Acquisition Act are being filed in the light of judgments of this Court recorded in the cases reported as Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058 and Azad Government and Azad Government and 2 others v. Mukhtar Saeed Qadri and 2 others (2000 YLR 2016) due to misconception, which are incompetent but in the light of reasons listed in para 12 of the judgment, it is held that the petitioners in all the present petitions for leave to appeal filed under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, may apply to the Court for conversion of petition for leave to appeal into appeal or appeal into petition for leave to appeal, as the case may be, within a period of one week from the announcement of the judgment.
' The question raised is answered in the terms indicated above. The petitions for leave to appeal shall be placed before the bench consisting of the hon'ble Chief Justice on 4th instant.