' The present revision petition has been directed against the order of the Shariat Court, dated 12-11- 1996, whereby a reference filed by the District Magistrate, Mirpur, pro forma respondent No,2 and an application filed by Muhammad Shafi, under section 561-A, Cr.P.C. Were disposed of by a consolidated order.
2. The facts giving rise to the present revision are that a ease under some provisions of Enforcement of Prohibition of Intoxicants Act was registered at Anti-Narcotics Police Station, Rawalpindi, against Muhammad Shafi, respondent, and some others. The allegation against Muhammad Shafi, accused-respondent, was that he is member of a gang of smugglers and committed the offence detailed in the F.I.R. After investigation, Muhammad Shafi, accused- respondent, and others, were ultimately challaned for facing trial in the offences under the Intoxicant Act. Consequently, a non-bailable warrant for the arrest of Muhammad Shafi, accused- respondent was issued by the Magistrate at Rawalpindi and was sent for execution to Azad Kashmir Police. In pursuance of the said warrant, S.H.O. Dudyal arrested the accused-respondent on 19th October, 1996 and, thereafter, got his judicial remand till his custody was given to Police at Rawalpindi. On 21-10-1996, an application was moved by Anti-Narcotics Force, Rawalpindi, before the District Magistrate, Mirpur, praying that the accused-respondent be handed over to them on transit remand so as to facilitate the investigation against him. On this application, the District Magistrate, Mirpur, sent for the opinion of the Prosecuting Deputy Superintendent of Police, Mirpur, who opined that there was no legal bar to hand over the accused to the Anti-Narcotics Force under the relevant law. However, the District Magistrate declined to hand over the custody of the accused-respondent to Anti-Narcotics Force on the ground that as an application under section 561-A, Cr.P.C. Was sub judice before Mr. Justice Riaz Akhtar Chaudhry, the Judge of the Shariat Court, and was fixed for hearing on 18-11-1996, it would be in the fitness of things to wait for the result of the aforesaid application. Meanwhile, the District Magistrate also made a reference to the High Court on 2-11-1996 for guidance as to whether Muhammad Shafi, accused-respondent, should be handed over to Anti-Narcotics Force; whether he should be kept in judicial custody; or he should be released on bail till the matter was decided by the High Court/Shariat Court. Previously when Anti-Narcotics Force demanded the custody of the respondent, the District Magistrate had provided a copy of the application made by the respondent under section 561-A which was then sub judice before Mr. Justice Riaz Akhtar Chaudhry; he had also intimated the police that the date of hearing of the said application was fixed for 18-11-1996. Muhammad Shafi, accused-respondent, submitted another application to the Chief Justice of High Court/Shariat Court on 4-11-1996 at Muzaffarabad seeking his bail, inter alia, on the ground of his illness and on the ground that the warrant of arrest pertained to some "other" Muhammad Shafi and not to him. This application was also entrusted to Mr. Justice Riaz Akhtar, the Judge of the Shariat Court, for hearing and disposal as the application under section 561-A was already sub judice before him at Mirpur Circuit. Mr. Justice Riaz Akhtar passed an order on the bail application whereby he sent for the record of application of the accused-respondent under section 561-A from Mirpur Office and also issued notice to the Additional Advocate-General. On 4-11-1996 the aforesaid reference by the District Magistrate was also made over to Mr. Justice Riaz Akhtar Chaudhry by the Chief Justice of the High Court for hearing and disposal; an order was also passed on the reference whereby the record from Mirpur Office of the High Court was again sent for and the reference was also fixed for arguments on 6-11- 1996. It may be mentioned here that in both the interim orders made by Mr. Justice Riaz Akhtar, one on the bail application submitted by Muhammad Shafi, accused-respondent, and the other on the reference initiated by the District Magistrate, no notice was issued to Anti-Narcotics Force at Rawalpindi to the effect that the application under section 561-A, Cr.P.C. Which was to be heard at Mirpur on 18-11-1996 would be heard and disposed of at Muzaffarabad on 6-11-1996. The learned Judge heard the arguments on the application under section 561-A, Cr.P.C. Bail application and the reference on 7-11-1996 and announced the impugned order on 12-11-1996, whereby the warrant issued by the Magistrate at Rawalpindi was held to be an ambiguous one and, thus, inexecutable.
The learned Judge of the Shariat Court also granted bail to the accused-respondent, Muhammad Shafi. A revision petition was filed by Lt.-Col. Sanaullah Rana, the Regional Director of Anti-Narcotics Force, Rawalpindi, on 17-2-1997 to this Court assailing the validity of the order passed by the Shariat Court, dated 12-11-1996, inter alia, on the ground that it was passed without any notice to Anti- Narcotics Force, despite the fact that they had appeared before the District Magistrate for the custody of the respondent but the same was declined on the ground that the application by Muhammad Shafi, accused-respondent, was sub judice before the Shariat Court and was fixed for hearing on 18-11-1996. It was further prayed that the order of the Shariat Court being violative of law should be set at naught and the custody of Muhammad Shafi, accused-respondent, be handed over to the Anti-Narcotics Force, Rawalpindi.
3. The revision petition was heard by the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi. However, a difference of opinion has arisen between the learned members of the Bench.
Mr. Justice Basharat Ahmad Shaikh was of the view that the impugned order of the Shariat Court was not sustainable whereas Mr. Justice Muhammad Yunus Surakhvi expressed the view that the revision petition was not only time-barred but was not competent. Consequently, the matter has come up before me for hearing and disposal as envisaged under subsection (13) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
4. I have heard the arguments and perused the file. It has been argued by Sardar Muhammad Siddique Khan, Advocate, the learned counsel for the petitioner, that the District Magistrate declined to hand over the custody of the respondent to Anti-Narcotics Force till the matter was decided by Mr. Justice Riaz Akhtar. The learned counsel contended that he was engaged counsel by the petitioner in the case and when he came to the Mirpur on 18-11-1996 to argue the case, he was told that arguments in the case had already been heard on 7-11-1996 and the order had also been announced on 12-11-1996. The learned counsel submitted that on this information, he applied for the copy of the order on the same day and subsequently filed the present revision petition on 15-1-1997, at Muzaffarabad. He maintained that the period for limitation for filing a revision petition in the instant case would start from the date of the knowledge of the order and, thus, the revision petition filed by him on 15-1-1996 was within the period of limitation of 60 days as envisaged under section 25 of the Islamic Penal Laws Act. The learned counsel further contended that it was not necessary to file separate application seeking condo nation of delay, especially so when the facts which entitle the petitioner to the condo nation have been narrated in the revision petition and are also supported by an affidavit. The learned counsel further submitted that the date of hearing of the application under section 561-A, Cr.P.C., was fixed for 18-11-1996 at Mirpur but it was subsequently changed without notice to the petitioner, this fact is not controverted and is amply proved by the record. Therefore, he contended that the petitioner was entitled to the condemnation of delay.
5'. In reply, while dealing with the question of limitation, Ch. Muhammad Azam Khan, Advocate, the learned counsel for the respondent, vehemently contended that there was no application for the condo nation of delay and the period of limitation would start from 12-11-1996 when the impugned order was announced and not from the date of knowledge of the petitioner or for that matter from 18-11-1996. The learned counsel has further argued that the petitioner was not a party to the proceedings under section 561-A, and, thus, the question of any notice to him with regard to change of date does not arise. He has further submitted that there is no application seeking the condo nation of delay and, as such, the delay of three days in filing revision petition cannot be condoned under law. Ch. Muhammad Mushtaq, the learned Additional Advocate-General has argued that delay cannot be condoned without a formal application: however, he conceded that revision petition in the instant case is competent under section 25 of the Islamic Penal Laws Act.
6. I have given due consideration to the arguments advanced by the learned counsel for the parties on the question of limitation. For elucidating the matter, it would be expedient to reproduce here subsection (1) of section 25 of the Islamic Penal Laws Act, 1974:--{{URDU TEXT}} ' The perusal of the above provision would indicate that the starting point of limitation has not been mentioned in the above provision. The aforesaid provision also does not stipulate as to who can file a revision petition to this Court. Although it can be said that the period of limitation for filing a revision petition under section 25 of the Islamic Penal Laws Act would be reckoned from the date of announcement of a judgment yet the fact remains that the aforesaid provision is susceptible to more than one interpretations, i,e, that the starting point of limitation could be either the date on which the judgment or order of the Shariat Court is announced or the date when the concerned party gets the knowledge of the same. Even if it is assumed that the starting period of limitation would be reckoned from 12-11-1996, the date on which the impugned order was announced, the fact remains that the application under section 561-A was admittedly fixed for hearing on 18-11- 1996; the said date was also intimated to the petitioner by the District Magistrate. It is amply proved by the record that when the petitioner's counsel came to Mirpur to argue the case on 18-11-1996 he got the knowledge of the impugned order. It is correct that the petitioner was not a party in the application made by the accused-respondent but the fact remains that arrest of the respondent was made in pursuance of the execution of warrant issued by the Magistrate at Rawalpindi which was to be executed by Anti-Narcotics Force. The Pakistan Police, as has been indicated above, prayed for the custody of the respondent from the District Magistrate but the accused was not handed over to them on the ground that the matter was sub judice before Mr. Justice Riaz Akhtar, the Judge of the Shariat Court, and the date of hearing was fixed for 18-11-1996. Assuming that the petitioner was not a party in the application under section 561-A and as such he was not entitled to a notice, the fact remains that he was an interested party in the matter, because the custody of the accused-respondent was required by him in pursuance of the warrant of arrest issued by the Magistrate at Rawalpindi. Besides, the petitioner was denied the custody of the accused- respondent till the matter was decided by Mr. Justice Riaz Akhtar, the Judge of the Shariat Court.
Under these circumstances, there is hardly any room of the argument that as the petitioner was not entitled to a notice, he was debarred from seeking the condo nation of delay or to file a revision petition.
7. The next question which needs resolution is as to whether the delay in filing the revision petition can be condoned in absence of an application in that regard. It is correct that normally in case of delay in filing an appeal application etc. There must be an application explaining the delay.
However, it has not been stipulated either in section 5 of the Limitation Act or in the Supreme Court Rules that there must be a formal application for the condo nation of delay. Some of the High Courts in sub-continent have framed the rules which envisage that in case of delay there must be a formal application but no such formal application has been envisaged in the Azad Jammu and Kashmir Supreme Court Rules, 1978. Therefore, I am of the view that if the delay in filing an appeal, revision or application stands explained by the record, the mere fact that there is no separate application seeking the condemnation would not justify the rejection of the prayer in that regard. I am fortified in my view by the following cases:-- ' In case reported as Firm Kaura Mal Bishan Dass v. Firm Mathra Dass Atma Ram, Ahmedabad AIR 1959 Pb. 646, it was observed as under:-- "(10) Even if the value for the purpose of jurisdiction were to be deemed to have been varied by virtue of the order of Shri Onkar Nath, in my view, this was eminently a fit case in which discretion under section 5 of the Limitation Act should have been exercised in favour of the appellant. The discretion under section 5 has to be a judicial discretion and not an arbitrary one. Merely because there was no written application filed by the appellant was hardly a sufficient ground for refusing him the relief, if he was otherwise entitled to it."
' In case reported as Governor-General-in-Council v. Jesraj Tilakchand Labhchand AIR 1950 Assam 83, it was held as under:- "The appellant must be regarded as having shown sufficient cause for not preferring the appeal within the period allowed by law. It is true the appellant has not filed a formal application under section 5, Limitation Act, but we do not think that at formal application is necessary, in view of the practice of the Calcutta High Court in computing the period of limitation prescribed for appeals, in the manner indicated in a long line of decisions which lay down that the time taken between the date on which the judgment is pronounced and the date on which the decree is pronounced and the date on which the decree is signed is to be excluded under section 12, Limitation Act as time requisite for obtaining a copy of the decree. As this appeal was originally filed in the Calcutta High Court, the appellant was undoubtedly misled by the judgments and 'practice of that Court into believing that appeals filed in such circumstances as the present are within time. No formal application under section 5, Limitation Act,. Is, therefore, necessary."
' In Sarwar Khan v. Mir Ali 1980 CLC 110, this Court suo motu extended time condoning the delay observing that the Court can suo motu enlarge time and condone the delay.
' In case reported as Mst. Kulsoomun Nisa v. Noor Muhammad alias Sultan Haider AIR 1936 All. 666, it was observed as under:-- "The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not made any formal application for an extension of time under section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sundar Lal was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter. The reason why Hakim Shyam Sunder Lal's name was omitted from the names of the respondents obviously was that his name did not find a place in the decree. He was impleaded later on within 30 days of the substitution of his name. We think that the lower Court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time."
' In case reported as Syed Murtaza Shah v. Major (Retd.) Mufti Nazar Muhammad 1980 CLC 138, it was observed that the powers under section 5 is not depended upon an application filed for the purpose to condone the delay and as such the power can be exercised even in absence of any application for the purpose.
Thus, I am of the view that in the circumstances enlisted above, the delay in the peculiar circumstances of the case in hand, particularly in view of the change of date of hearing from 18-11- 1996 to 6-11-1996, should be condoned without any formal application, especially so when the facts constituting the sufficient cause stand fully proved on the record. Therefore, the delay in filing the revision petition is hereby condoned.
8. The next question which was subject of controversy at the Bar was as to whether the revision to this Court against the impugned order was competent. From the perusal of the provisions contained in section 25(1) of the Islamic Penal Laws Act, reproduced above, it is clear that it has not been stipulated in the aforesaid provision that an appeal or revision is competent to the Supreme Court only if it arises out of a case of conviction and acquittal and not otherwise. Consequently, I am unable to subscribe to the contention of the learned counsel for the respondent that the revision to this Court was incompetent because this was not a case of conviction or acquittal. It is well- E settled principle of law that the provisions barring a remedy against an order should not be read in a statute by implication. The learned counsel for respondent No,1 referred to a case reported as Malik Iftikhar Ahmad v. Ali Asghar PLD 1981 SC (AJ&K) 47 in support of his contention.
The facts of that case were that a convict in a murder case was given B Class in jail by the Government. Subsequently, the President of the State cancelled the order whereby the convict was given B class in jail. However, the High Court set aside the order of the President holding that the concession of class could not be withdrawn. A petition for leave to appeal was filed to this Court which was dismissed on merits as well on the ground that as the petitioner was not a party in the High Court and, thus, he had no locus standi to file petition for leave to appeal. The authority has no relevancy to the case in hand. In the instant case, the point involved is as to whether the revision under section 25 of the Islamic Penal Laws Act, was competent or not. The ratio decidendi of the case relied upon by the learned counsel for the respondent is not attracted in the instant case.
Therefore, I repel the contention of the learned counsel for the respondent that the revision is incompetent. Because, in the present case the point involved is as to whether an appeal or a revision petition under section 25 of the Islamic Penal Laws Act is competent only in cases of acquittal or conviction or it is also competent against any order.
9. The next question arises as to whether the impugned order disposes of both the application of respondent under section 561-A and the reference made by the District Magistrate or it only disposes of the reference made by the District Magistrate. The perusal of the record shows that in the title of the impugned order, the title of the reference and the application under section 561-A, Cr.P.C. Both, have been mentioned, but in the operating part of the order, only reference has been dealt with and no specific findings have been recorded with regard to the application under section 561-A. However, taking in view the controversy, namely, as to whether the respondent, Muhammad Shafi, should have been handed over to Anti-Narcotics Force or should have been released on bail, the decision in one would automatically decide the other. Thus, I am of the view that despite the fact that there is no specific reference to the application yet the impugned order would be deemed to dispose of both the reference as well as the application under section 561-A, Cr.P.C.
10. The next point which needs determination is as to whether the District Magistrate was competent to make a reference to the High Court under section 432. A bare reading of the aforesaid provision would reveal that only the Presidency Magistrate can seek the opinion of the High Court on any question of law which arises in the hearing of a case pending before him. In the instant case the District Magistrate could not be regarded as Presidency Magistrate by any stretch of imagination. A reference may be made to AIR Commentaries on the Code of Criminal Procedure by D.V. Chitaley, wherein it has been observed in note 2 of section 432, Cr.P.0 as under:-- "(2) Reference by Presidency Magistrate.--- This section empowers only a Presidency Magistrate to make reference to the High Court. A Sessions Judge or a District Magistrate has no power to make a reference except as provided, by section 438, and no other Magistrate trying the case has any power at all to make any reference to the High Court."
It may be observed that the Shariat Court has opined that the warrant issued is ambiguous and the identity of the accused-respondent is not ascertainable. The question relating to the identity of the accused is not a question of law envisaged under section 432, Cr.P.C. And even otherwise, there was no case pending before the District Magistrate, Mirpur, as stipulated under section 432, Cr.P.C.
11. So far as the question of exercise of powers by the Shariat Court under section 561-A, Cr.P.C., is concerned, it may be observed that in the instant case the police required the custody of the accused-respondent for the investigation in a case registered at Rawalpindi under section 3/4 of the Enforcement of Prohibition of Intoxicants Act. Thus, the inherent power of the Court could not be exercised to interfere with the investigation of the police by denying the custody of the accused- respondent. The question as to whether warrant of arrest pertains to some other person or to the respondent is to be resolved during the investigation or at the trial by the trial Court and not in extradition proceedings. After the arrest of the accused-respondent, it was obligatory on the District Magistrate under section 5 of the Ordinance known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Ordinance, 1995 and section 5 of the Act known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Act, 1984, to hand over the accused-respondent to Anti-Narcotics Force, Rawalpindi, instead of making a reference to the High Court/ Shariat Court.
The phraseology employed in both the sections 5 of the aforesaid Ordinance and the Act is identical; it is reproduced as under for elucidation:-- "5. Application for transfer of fugitive offender to Pakistan.--- Upon the arrest of a fugitive offender under section 3, an application shall be made to the District Magistrate in whose District the arrest has been made for the transfer of such offender and the property seized under section 4, and the District Magistrate shall, upon such application, order the transfer of such offender and property to the concerned Police Officer of Pakistan."
In the light of what has been stated above, I accept the revision petition and set aside the impugned order of the Shariat Court; I further direct the District Magistrate, Mirpur, that after the arrest of Muhammad Shafi, respondent, his custody shall be handed over the concerned police as envisaged by the relevant law.
' The revision stands accepted.
Revision .