Kh. Muhammad Nasim, J. The titled appeal by leave of the Court, has been directed against the judgment of the Shariat Appellate Bench of the High Court dated 25.09.2019, whereby the application filed by the appellant, herein, under section 561-A, Cr.P.C. has been dismissed.
2. The facts of the case briefly stated are that a case in the offences under sections 338-A and 34 A.P.C. was registered against the accused-respondents, herein, at City Police Station Mirpur on 09.02.2016, on the complaint of appellant, herein. The appellant alleged that his wife Neelum Shazadi was pregnant who with the connivance of other accused-respondents committed the offence of abortion, however, after investigation, the Police presented- the report "Ikhtitamf under section 173, Cr.P.C. that the case is liable to be dismissed as whereupon, the Tehsil Court of Criminal Jurisdiction (Court No. II), Mirpur concurred with the report of the Police and consigned the case to record, vide order dated 31.05.2016. Against the said order, the appellant, herein, filed an application under Section 561-A, Cr.P.C. before the Shariat Appellate Bench of the High Court. After necessary proceedings, the learned Shariat Appellate Bench of the High Court, through the impugned judgment has dismissed, the application, hence this appeal by leave of the Court.
3. On 13.01.2022, the learned Advocate, representing the appellant was directed to file the written arguments within two days: The same have duly been filed, whereas, Mr. Sajid Hussain Abbasi, the learned Advocate representing the respondents, while arguing the case, raised the preliminary objection on the maintainability of the appeal. He submitted that under the statutory provision, i.e. section 8 of the Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017, against the final decision of the Sharait Appellate Bench of the High Court in any proceeding, an appeal or revision petition lies before this Court, whereas the appellant, has filed the petition for leave to appeal, which is not competent, hence this appeal is liable to be dismissed on the sole ground.
4. Conversely, the learned Advocate, representing the appellant in the written arguments has submitted that inadvertently, instead of appeal, a petition for leave to appeal has been filed, however, this Court is empowered to convert the appeal into a revision petition. In support of his version, the learned Advocate referred to and relied upon the case reported as [2018 SCR 1179].
5. We have heard the learned Advocates, representing the parties and have perused the record made available along with the impugned judgment. As the learned Advocate, representing the respondents has raised objection on the maintainability of the instant appeal, therefore, we would like to resolve this point. at first. The contention of the learned Advocate, representing the respondents is that against the judgment of the Shariat Appellate Bench of the High Court, a direct appeal or revision petition lies before this Court, whereas, the appellant has filed the petition for leave to appeal. The relevant provision on the subject matter i.e. Section 8 of the Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017 is reproduced here, which reads as under: "8. Appeal to the Supreme Court--(1) Any party to any proceedings before the Shariat Appellate Bench aggrieved by the final decision of the Shariat Appellate Bench in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court.
(2) The Supreme Court shall also exercise the powers of revision against any order of the Shariat Appellate Bench, to be filed within sixty days."
From the perusal of the above, it is crystal clear that if a party to any proceedings before the Shariat Appellate Bench of the High Court, is aggrieved from the final decision of the Shariat Appellate Bench of the High Court, he may file an appeal before this Court, within a period of 60 days. A revision petition against the decision of the Shariat Appellate Bench of the High Court may also be preferred before this Court within a period of 60 days. In the instant case the Sharait Appellate Bench of the High Court dismissed the application filed by the appellant, herein, under Section 561-A, Cr.P.C. vide impugned judgment dated 25.09.2019. Under Section 8 of the Azad Jammu and Kashmir Constitution of Shariat Appellate Bench of the High Court Act, 2017, a direct appeal or revision may be filed against the impugned judgment, whereas the appellant has filed the petition for leave to appeal, which is not competent.
6. We have also considered the argument of the learned Advocate, representing the appellant, that this Court may convert the petition for leave to appeal into appeal or revision, in our considered view that stage has gone over, as the appellant has not filed the application for conversion of the PLA into appeal or revision, within the prescribed period of limitation i.e. 60 days, therefore, the argument of the learned counsel for the appellant, in this regard is hereby repelled. In this regard reliance may be placed on the case reported as Azad Govt. & 3 others vs. Muhammad Yousaf & 10 others [2015 SCR 1190], wherein, it has been observed by this Court as under: "... The application for conversion of appeal into petition for leave to appeal or petition for leave to appeal into appeal can only be entertained if the same is filed within the prescribed period of limitation. The prescribed period of limitation is 60 days, therefore, no case for condonation of delay is made out by the petitioners, the same merits dismissal."
As the appeal filed by the appellant is incompetent therefore, the preliminary objection raised by the learned Advocate, representing the respondents prevails. The case law referred to and relied upon by the learned counsel for the appellant has distinguishable facts, hence, need not to be discussed.
Consequently, this appeal is hereby dismissed as having been filed incompetently.