Jehanzeb and three others VS The State etc

Crl, 16 of 13

gBDERIHEEI

Crl. No. 16 of 2Ol 3_ lehanzeb er3 Others- VS-The State Et Another:

S. No. of Date of order with si8nature of ludge and that of parties or order order/ counsel where necessary.

I 1-03-2013: Sardar t"1. Aftab Advocate for petitioner, Ui. iriiq Mehmood Jehangiri, learned DA-G with Shamas Sl' Vr. ginvi*in Abbasi, Advocate for respondent No'2'

ORDER

ANWAR KHA N KASI. CI:

This Revision Petition challenges the order dated 11.02.2013, passed by Mr. Rafaqat Ahmed Khan Awan'

whereby the learned Addl. sessions Judge-vl [west] lslamabad, appeal of the appellants lpetitioners herein] under Section '108(b) forum Cr.PC was returned for presenting before a approprlate as being coram non'tudice withln the puMew of Section

408(b) Cr.PC.

2.ttisinteraliacontendedthattheappealwasfiledby Et sentence of the petitioners'appellans against their conviction seven years and fine ofRs'5O,OOO/-, passed by Mr' Nasrumminallah,learnedJudicialMagistrateSection-30 therefore' the lslamabad, vide order dated 30'01 '2013 and, had the learned Addl. Sessions Judge as Appellate Forum iurisdictionoverthematter,becausethecasewastransferredto by the leaned Sessions Judge West lilamabad' It is further him contended thar return of appeal is without any lawful

iustificationandcondemnationofpetitionerwithouthearing. upon case In support of his contentions, learned counsel relied laws cited as 2005 P Cr L 1 1435, l99l MLD 22Ol and shall lie 2006 YLR l718 which are on the point that an appeal beforeaSessionsCourtagainstanorderofMagistrateSection four 30 if a sentence of imprisonment for a term exceeding years is passed.

S.LearnedDeputyAttorney-Generalassistedbylearned impugned order counsel for private respondent supported the by maintaining that an appeal against the conviction exceeding

the purview of four years shall lie before the High Court within Section 408(b) Cr. PC, therefore, appeal meris outright

dismissal.

4' Heard and record Perused'

2 Crl, Revision No. l6 of 2013

5- For convenience Er ready reference, Section 408(b) Cr.PC is reproduced hereunder:-

408(b): When in any case an Asslstant Sesslons 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 Hlgh Couft:

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. lt is evident that cenain words from this section were omitted by Ordinance Xll of 1972 and, therefore, the relevant section shall be main part of Section 408 Cr.PC which reads as under:'

Sec: ,+08. Appeal from sentence of Asistant Sesions ludge or [Iudlclal Maelstrate]

"Any person convicted on a trial held by an Assistant Sessions Judge, [or any iudicial Magistrate] [Special Magistrate] or any person sentenced under Section 349 t..,.] may appeal to the Court of Sessions."

7- 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.

8- The law on the subiect is very specific. ln case reported as Aman Ullah-VS-The Sate t2o0s P cr L J l43sl it was held thas-

"Section 408 (b), Cr.PC. read, "when in any case an Assistant Sesslons ludge 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 omisslon is understandable and consistent with provlsions of sections 6, 7, 9, I 2, 17, 28, 30, 31, 32 and 34 of Code of Criminal Procedure. All the three Couns i.e. Asslstant Sesions ludge, Additional Sessions Judge and

Crl. No. 16 2013

in Sessions ludge are but one Court exercising iurisdiction the same Sessions Division. The reason and logic of the Asistant amendment is that if a sentence is passed by an an order Sesions ludge exceedlng 7 years, appeal against of Assistant Sessions ludge cannot be filed before a Sessions ludge 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 Sesion; the Court of

Magistrate Section 30 belongs to a class of Magistrates' Section Therefore, appeal against the decision of Magistrate 30 lies before a Court of Sesion which is an immediate superlor Court. A lot of confusion would have been

avoided had Legislature itself provided in section 408(b) order that appeal shall lie before a Sesions Court against an of Magistrate Section 30 lf it passes a sentence of years'" lmprisonment for a term exceeding four

g- Learned Addl. Sessions Judge Islamabad, instead of

giving any interpretation based his findings on his "fumble- understanding" which do not find any support from any provision of law.

10- The perusal of impugned order shows that the learned Addl. Sessions ludge, passed the order without applying the iudicialmindandwrote40S(b).PPCinsteadofSection40S(b) Cr.PC. Such disposal of matter on iudicial side cannot be

touching considered as iudicious decisions, therefore, without meritsofthecaseonthepointofconvictionorsentence,the present petitlon is accepted, order dated I l'02'2013 is set-

aside and the appeal filed before Mr' Rafaqat Ahmed Awan

Khan, leaned Addl. Sessions Judge lslamabad' shall be

consideredaspendinSandshallbedecidedonitsmerisafter as the case hearing both the parties preferably within 30 days, has already been delaYed.

t

M. Suhail r r -03-201 3

APPROVED FOR REPORTING

Uploaded By : Engr. Umer Rasheed Dar