PLJ 2013 Cr.C. (Islamabad)
Present:
Muhammad Anwar Khan Kasi, CJ.
JEHANZEB & 3
others--Petitioners
versus
STATE &
another--Respondents
Crl. Revision No.
16 of 2013, decided on 11.3.2013.
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 408(b)
& 39--Criminal Revision--When in any case an Assistant Sessions Judge pass
any sentence of imprisonment for a term exceeding four years, the appeal of all
or any of the accused convicted at such trial shall be to the High
Court--Language of the above section is very clear and unambiguously state that
a sentence of imprisonment for a term exceeding 4 years, passed by Assistant
Sessions Judge, shall be appealable to the High Court, Magistrate Judicial Magistrate
finds no mentions in this section. It is evident that certain words from this
section were omitted by Ordinance XII of 1972 and, therefore, the relevant
section shall be main part of Section 408 Cr.P.C.
which reads as under:
Sec: 408. Appeal
from sentence of Assistant Sessions Judge or [Judicial Magistrate]
"Any person
convicted on a trial held by an Assistant Sessions Judge, [or any judicial
Magistrate] [Special Magistrate] or any person sentenced under Section 349
[....] may appeal to the Court of Sessions."
The proviso
clause i.e 408(b) Cr.PC,
therefore, is not applicable in the case of sentence, passed by a Magistrate
under Section 30 Cr.PC.--Law on the subject is very
specific--Addl, Sessions Judge Islamabad, instead of
giving any interpretation based his findings on his "humble
understanding" which do not find any support from any provision of
law--Addl. Sessions Judge, passed the order without applying the judicial mind
and wrote 408(b)-PPC instead of Section 408(b) Cr.PC.
Such disposal of matter on judicial side cannot be considered as judicious
decisions, therefore, without touching merits of the case on the point of
conviction or sentence, the present petition is accepted. [Pp. 614, 615 & 616] A, B, C & D
2005
P.Cr.LJ 1435, ref.
Sardar M. Aftab, Advocate for Petitioners.
Mr. Tariq Mehmood Jehangiri, learned DAG for State.
Mr. Binyamin Abbasi, Advocate for Respondent No. 2.
Date of hearing:
11.3.2013.
Order
This revision
petition challenges the order dated 11.02.2013, passed by Mr. Rafaqat Ahmed Khan Awan, learned
Addl. Sessions Judge-VI [West] Islamabad, whereby the appeal of the appellants
[petitioners herein] under Section 408(b), Cr.P.C.
was returned for presenting before a appropriate forum as being coram non-judice within the
purview of Section 408(b), Cr.P.C.
2. It is inter alia contended that the appeal
was filed by the petitioners-appellants against their conviction & sentence
of seven years and fine of Rs. 50,000/-, passed by Mr. Nasrumminallah,
learned Judicial Magistrate Section-30 Islamabad, vide order dated 30.01.2013
and, therefore, the learned Addl. Sessions Judge as Appellate Forum had the
jurisdiction over the matter, because the case was transferred to him by the
learned Sessions Judge West Islamabad. It is further contended that return of
appeal is without any lawful Justification and condemnation of petitioner
without hearing. In support of his contentions, learned counsel relied upon
case laws cited as 2005 P Cr L J 1435, 1991 MLD 2203 and 2006 YLR 1718 which
are on the point that an appeal shall lie before a Sessions Court against an
order of Magistrate Section 30 if a sentence of imprisonment for a term
exceeding four years is passed.
3. Learned Deputy Attorney-General assisted by
learned counsel for private respondent supported the impugned order by
maintaining that an appeal against the conviction exceeding four years shall
lie before the High Court within the purview of Section 408(b), Cr.P.C., therefore, appeal merits outright dismissal.
4. Heard and record perused.
5. For convenience and ready reference, Section
408(b), Cr.P.C. is reproduced hereunder:
408(b): When in
any case an Assistant Sessions Judge [....] passes any sentence of imprisonment
for a term exceeding four years, […..] the appeal of all or any of the accused
convicted at such trial shall lie to the High Court:
6. The language of the above section is very
clear and unambiguously state that a sentence of imprisonment for a term
exceeding 4 years,
passed by Assistant
Sessions Judge, shall
be appealable to the High Court, Magistrate Judicial Magistrate finds no
mentions in this section. It is evident that certain words from this section
were omitted by Ordinance XII of 1972 and, therefore, the relevant section
shall be main part of Section 408, Cr.P.C. which
reads as under:--
Sec: 408. Appeal
from sentence of Assistant Sessions Judge or [Judicial Magistrate]
"Any person
convicted on a trial held by an Assistant Sessions Judge, [or any judicial
Magistrate] [Special Magistrate] or any person sentenced under Section 349
[....] may appeal to the Court of Sessions."
7. The proviso clause i.e
408(b), Cr.P.C., therefore, is not applicable in the case of sentence,
passed by a Magistrate under Section 30, Cr.P.C.
8. The law on the subject is very specific. In
case reported as Aman Ullah
vs. The State [2005 P.Cr.L.J. 1435] it was held
that:--
"Section
408 (b),, Cr.P.C.. read, "when in any case an
Assistant Sessions Judge passes any sentence of imprisonment for a term
exceeding four years, the appeal of all or any of the accused convicted at such
trial shall lie to the High Court". Reading
of both forms of Section 408 shows that words "or a Magistrate specially
empowered under Section 30" have been omitted in Section 408(b). This
omission is understandable and consistent with provisions of Sections 6, 7, 9,
12, 17, 28, 30, 31, 32 and 34 of Code of Criminal Procedure. All the three
Courts i.e. Assistant Sessions Judge, Additional Sessions Judge and Sessions
Judge are but one Court exercising jurisdiction in the same Sessions Division.
The reason and logic of the amendment is that if a sentence is passed by an
Assistant Sessions Judge exceeding 7 years, appeal against an order of
Assistant Sessions Judge cannot be filed before a Sessions Judge since they are
part of a one Court as noted above. Whereas, a Court of Magistrate may it be
Magistrate of Section 30, is not part of Court of Session; the Court of
Magistrate Section 30 belongs to a class of Magistrates. Therefore, appeal
against the decision of Magistrate Section 30 lies before a Court of Session
which is an immediate superior Court. A lot of confusion would have been
avoided had Legislature itself provided in Section 408(b) that appeal shall lie
before a Sessions Court against an order of Magistrate Section 30 if it passes
a sentence of Imprisonment for a term exceeding four years."
9. Learned Addl,
Sessions Judge Islamabad, instead of giving any interpretation based his
findings on his "humble understanding" which do not find any support
from any provision of law.
10. The perusal of impugned order shows that the
learned Addl. Sessions Judge, passed the order without applying the judicial
mind and wrote 408(b), PPC instead of Section 408(b), Cr.P.C.. Such disposal of matter on judicial side cannot be
considered as judicious decisions, therefore, without touching merits of the
case on the point of conviction or sentence, the present petition is accepted,
order dated 11.02.2013 is set-aside and the appeal filed before Mr. Rafaqat Ahmed Awan Khan, leaned
Addl. Sessions Judge Islamabad, shall be considered as pending, and shall be
decided on its merits after hearing both the parties preferably within 30 days,
as the case has already been delayed.
(A.S.) Revision
petition accepted
