ALOK KUMAR MITRA AND 3 OTHERS Versus THE STATE
1. SALAHUDDIN AHMED, J.--- ‑These three Revision cases arise out of the same incident and trial and the questions of law and facts involved in them being common are heard together and ,are now disposed of under one judgment.
2. The brief facts necessary for the disposal of the Rules nisi issued in each one of the three Revision Cases are as follows. In July 1966, petitioner Afsaruddin, a Naik of East Pakistan Rifles was attached to Baragram Border Outpost in the District of Dinajpur. On 20th July 1966, he left the outpost for the ostensible purpose of lodging a First Information Report about a theft in his house. Later in the day P. W. 1 a Havildar of the Rifles, received an information that some Hindus along with properties would cross the border into India in a jeep car under the escort of petitioner Afsaruddin. Consequently P. W. I accompanied by four Sepoys including P. Ws. 2, 3 and 4 went out on patrol duty to Danihari and having split themselves into two groups kept watch at a place about 2J miles from the Indian Border from 9 p.m. onward. At about 3 o'clock in the morning of 21st July 1966, the group consisting of P. Ws. 2 and 3 noticed a jeep speeding towards Indian Border. The jeep was frequently switching off and on its bead‑lights. P. Ws. 2 and 3 challenged the jeep and signalled it to stop, but the jeep disregarded the signal, and proceeded ahead. The two witnesses ran after the jeep and one of them (P. W. 2) fired one round of shot with his rifle at the jeep. The jeep stopped and P. Ws. 2 and 3 as well as the men of the other group including P. Ws. 1 and 4 approached the car. They found inside the car all the petitioners. Petitioner Ramjan Ali was found driving the jeep. Questioned by P. W. 1 petitioner Afsaruddin said that all the persons in the jeep were his men and further prayed that they should be released. P. W. 1 refused the prayer and the petitioners were guarded until 7‑30 a.m. when in the presence of some local persons including P. Ws. 6, 7 and 9 the petitioners were searched and the following articles among others valued at Rs. 2,000 approximately were duly seized from their possession Rs. 110 in Pakistan currency and Rs. 393 in Indian currency besides further cash of Rs. 240 four wrist watches, four fountain‑pens; from the person of two women‑petitioners were recovered two pairs of gold bala, two gold chains two pairs of gold ear‑rings, two gold rings; besides two gold balas and a necklace with locket found concealed inside Halwa (a kind of sweet) kept in a Tiffin‑box. The jeep was also seized. The seized articles were sent to the Customs Office. P. W. 2 lodged a First Information Report at the police station. At the conclusion of the police investigations a charge‑sheet was submitted against all the petitioners and one Triguna Charan Bose and they were tried by a First Class Magistrate duly empowered under section 193‑B of the Sea Customs Act. All the petitioners were tried on a charge under section 167 (8‑a) of the Sea Customs Act and Triguna Charan Bose was tried on the said charge read with section 109 of the Pakistan Penal. Code and under rule 47 (5) of the Defence of Pakistan Rules.
3. All the accused persons including the petitioners pleaded not guilty to the charges framed against them, and they examined, some defence witnesses as well as gave suggestions to prosecution witnesses to bring out the defence case that the petitioners except Afsaruddin and Ramjan Ali were proceeding to the house of a relative on a pleasure trip. So far as petitioners Afsaruddin and Ramjan Ali are concerned the defence set up by the former was that he was not present in the jeep and by the latter that petitioner Afsaruddin being a relation of the persons who had custody of the jeep induced Ramjan Ali to place the jeep at the disposal of Afsaruddin petitioner Ramzan further stated that he was not aware of the destination of the party.
4. On a consideration of the evidence the learned Magistrate convicted the petitioners under section 167 (8‑a) of the Sea. Customs Act and sentenced them to various terms of imprison ment ranging from five years, six months rigorous imprisonment to a term of simple imprisonment for six months, and to payment of fines ranging from Rs. 5,000 to Rs. 500. In addition petitioner Afsaruddin was sentenced to twelve whips and the other petitioners except the two women petitioners Shilpirani Mitra and Sumitra Basu were sentenced to ten whips each. The learned Magistrate, however, acquitted the aforesaid Triguna Charan Bose. All the seized goods except the jeep were declared` smuggled goods and they were directed to be disposed of' according to rules. Having been aggrieved by the conviction and sentences the petitioners preferred three separate appeals before the Court of Session, Dinajpur which were heard and dismissed by the learned Sessions Judge himself on 19‑8‑67 with certain modifications of sentences. The petitioners thereupon approached this Court with‑ three separate applications and obtained the three Rules nisi.
5. Mr. Abdur Rasheed, learned Advocate appearing on behalf of the State, has raised a preliminary point, namely, that the conviction of the petitioner being under the Sea Customs Act, which does not provide for any appeal or revision, the petitioners' appeal to the Sessions Court were without jurisdiction.
6. Mr. Md. Ismail, learned Advocate, who has appeared on behalf of the petitioners in Revision Case No. 639 has, however, strenuously argued that the appeals were competent, and that under the Code of Criminal Procedure an appeal lies from an order of conviction and sentence passed by a 1st Class Magistrate empowered under section 193‑B of the Sea Customs Act. I therefore proceed to dispose of the preliminary point first.
7. It is not disputed that the trial was held by a. 1st Class Magistrate. It is also not disputed that under the Sea Customs, Act there is no provision for appeal or revision from an order of conviction and sentence passed by a Magistrate under the Seal Customs Act. Furthermore it is not disputed that the 1st Class Magistrate who tried the case was empowered by the Provincial Government under section 193‑B of the Sea Customs Act to pass a sentence of imprisonment for a term exceeding two years and of fine exceeding Rs. 1,000 on any person convicted of an offence mentioned in items 8 and 81 of the Schedule to section 167 of the Sea Customs Act.
8. The relevant provisions of the Code of Criminal Procedure which have a bearing on the question are as follows :‑
9. "5. Trial of offences under Penal Code.‑(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws.‑All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences."
28. Offences under Penal Code.‑Subject to the other provisions of this Code any offence under the Pakistan Penal} Code may be tried :‑
(a) by the High Court, or
(b) by the Court of Session, or
(c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable.
29. Offences under other laws.‑(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be" tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable.
32. Sentences which Magistrates may pass.‑(1) The Courts of Magistrates may pass the following sentences, namely :‑
10. | Imprisonment for a term
11. | not exceeding two years,
12. | including such solitary
(a) Courts of Magistrates | confinement as is autho of the First Class : { rised by law;
13. |
14. Fine not exceeding one
15. | thousand rupees.
16. | Whipping.
(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorised by law to pass.
408. Appeal from sentence of Assistant Sessions Judge or Magistrate of the First Class.‑Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the First Class, may appeal to the Court of Session
17. Provided as follows :‑
18. ..
(b) when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal of all or any of the accused convicted at such trial shall lie to the High Court;
(c) when any person is convicted by a Magistrate of an offence under section 124‑A of the Pakistan Penal Code, the appeal shall lie to the High Court."
19. On a consideration of the provisions of the Code of Criminal Procedure quoted above it seems evident that unless a special law provides to the contrary, an offence created by it shall not only be investigated, enquired into and tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but they also may be tried by a Court mentioned m section 29 (2) of the Code of Criminal Procedure.
20. The relevant provisions of the Sea Customs Act which speak about cognisance and trial of an offence not specially provided for under section 182 of the Act are contained in sections 187 and 193‑A and 193‑B of the Act and they are as follows
21. "182. Adjudication of confiscations and penalties.‑In every case, except the cases mentioned in section 167 Nos. 26, 72, 74, 75 and 76, in which under this Act anything is liable to confiscation or any person is liable to penalty, such con fiscation or penalty may be adjudged‑
(a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector;
(b) up to confiscation of goods not exceeding two thousand five hundred rupees in value and imposition of penalty not exceeding one thousand rupees, by an Assistant Commissioner or Assistant Collector of Customs;
(c) up to confiscation of goods not exceeding two hundred and fifty rupees in value and imposition of penalty not .exceeding fifty rupees, by such other subordinate officers of Customs as the Chief Customs Authority may from time to time empower in that behalf in virtue of their office.
187. Offences not specially provided for, how tried.‑All offences against this Act, other than those cognisable under section 182 by officers of Customs, may be tried summarily by a Magistrate:
22. Provided that in the cases mentioned in numbers 8 and 81 of the Schedule to section 167, so far as concerns special goods, ‑the offences shall be tried by a Court having powers not inferior to those of a Magistrate of the First Class.
23. 193‑A. Power to try summarily.‑Any Magistrate for the time being empowered to try in a summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure, 1898 (Act V of 1898) may if he thinks fit on application in this behalf by the prosecution try an offence under this Act, except where the value of goods involved in such offence exceeds five hundred rupees in accordance with provisions of subsection (1) of section 296 and sections 263, 264 and 265 of that Code.
24. 193‑B. Special powers for Magistrates.‑Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the first class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of an offence mentioned in items 8 and 81 in the Schedule to section 167."
25. Section 167 (8‑a) of the Sea Customs Act under which the petitioner have been convicted merely speak of Magistrate without giving any description of the Magistrate. Reading the provisions of the Sea Customs Act just quoted along with the provisions of the Code of Criminal Procedure quoted above for it is apparent that any Magistrate competent to try an offence in summary way under the Code of Criminal Procedure may on the fulfilment of certain conditions precedent try an offence under the Sea Customs Act where the value of the goods involved in the offence does not exceed Rs. 500 where, however, the value of the goods exceeds Rs. 500 the offence is triable by a Magistrate of First Class. Furthermore that an order of conviction and sentence passed by a First Class Magistrate is appealable to the Court of Session under section 408 of the Code of Criminal Procedure subject to the provisos (b) and (c) mentioned thereunder.
26. It has been argued on behalf of the State that the First Class Magistrate who tried the present case having been specially empowered under section 193‑8 of the Sea Customs Act was constituted a special Magistrate under the Sea Customs Act and consequently he was not a Magistrate appointed under the Code of Criminal Procedure. I am unable to accept this contention. It has now been well settled by a number of decisions of this Court that a Magistrate appointed under the Code of Criminal Procedure does not cease to be such a D, Magistrate merely because he has been given certain special or additional powers under a special statute. In the case of Rajab Ali Bepari v. The Province of East Pakistan (P L D 1958 Dacca 552) the offender was convicted by First Class Magistrate who had been specially empowered under the provision of section 12 of East Pakistan Act I of 1456 similar to the one in section 193‑B of the Sea Customs Act. The Court held that such a Magistrate does not cease to be a Magistrate appointed under the Code of Criminal Procedure and consequently, the order of sentence passed by such a Magistrate is appealable is under the Code of Criminal Procedure.
27. In another case Abdul Hannan v. Government of East Pakistan (P L D 1959 Dacca 279) which was a conviction and sentence by a First Class Magistrate under section 4 of the Prevention of Smuggling Act (Act LVIII of 1952) the Magistrate was empowered by a provision contained in the Prevention of Smuggling Act of 1952 similar to the provision of section 193‑B of the Sea Customs Act and the Court held that the trial was by a Magistrate of First Class appointed under the Code of Criminal Procedure and that merely because he was specially empowered to impose a higher" sentence than that which a Magistrate of the First Class could impose under the Code of Criminal Procedure, did not make him cease to be a Magistrate of the First Class under the Code of Criminal Procedure, and consequently an appeal or revision lay from the order of conviction and sentence passed by such a Magistrate.
28. In the case of Monoranjan Dey v. The State (P L D 1959 Dacca 616) another Division Bench of this Court held that an appeal lay from an order of a First Class Magistrate convicting a person under section 7 (1) (c) of the Land Customs Act.
29. In the case of Mrs. Nur Jahan Begum v. Authorised officer, Chittagong (P L D 1967 Dacca 166) another Division Bench of this Court took a similar view. In the case under report the conviction was by a 1st Class Magistrate for an offence under the Building Construc tion Act (II of 1953). The Court held that a First Class. Magistrate did not cease to be Magistrate under the Criminal Procedure Code within the meaning of section 408 of the Code merely because some additional powers had been conferred upon him by a special enactment. The Court further held that in. any event a revisional application lay to the High Court.
30. In the case of Tamjid All v. State (20 D L R 546) a Single Bench of this Court in the case of conviction by a First Class Magistrate under section 167 (8) and (81) of the Sea Customs Act followed the case reported in P L D 1967 Dacca 166 and held that an appeal lay under section408 from an order of a Magistrate of the 1st Class convicting the offender under section 167 (8) and (81) of the Sea Customs Act. The Court also held that the revisional jurisdiction of the High Court followed from the appellate jurisdiction of the Sessions Court,
31. It is thus abundantly clear that an appeal under section 408 of the Code of Criminal Procedure is available to a person convicted on trial by a First Class Magistrate appointed under the Code of Criminal Procedure and empowered with certain special or additional powers under a special enactment unless the special statute which has created the offence has made ant express provision barring the appeal.
32. Having regard to the fact, however, that the two petitioners Afsaruddin and Ramjan Ali were sentenced to a term of imprisonment for five years a pertinent question has arisen as to what is the forum of this appeal. It has been contended on the one hand that an appeal lies to the Court of Session irrespective of the term of imprisonment imposed by the First Class Magistrate. On the other hand it has been con tended that having regard to proviso (b) of section 408 of the Code of Criminal Procedure if the Magistrate passes a sentence of imprisonment for a term exceeding four years, the appeal shall lie to the High Court.
33. Having already held that an appeal lay under section 408 of the Code of Criminal Procedure from an order of conviction by a First Class Magistrate it only remains for me to consider what the said section itself provides in this respect. On a reading of the section and giving it its plain and natural meaning it seems obvious to me that a person convicted on a trial held by a 1st Class Magistrate may appeal to the Court of Session and that unless any one of the two provisos (b) or (c) is attracted a Court of Session is the forum of appeal. Although this point does not appear to nave been considered in any previous decision of this Court, the cases discussed above appear to me to support this view. It is patent and clear that the present conviction is not by a Magistrate empowered under section 30 of the Code of Criminal Procedure, nor is it a conviction of an offence under section 124‑A of the Penal Code. That being so none of the two provisos is applicable, and therefore, the appeal lies to the Court of Session and not to the High Court. Section 30 .of the Code of Criminal Procedure is as follows :‑
34. "In the Punjab, the North‑West Frontier, and the District of Sylhet, in Sind and in those parts of the provinces in which there are Deputy Commissioners or Assistant Commissioners, the Provincial Government may, notwithstanding anything contained in section 29, invest the District Magistrate or any Magistrate of the First Class, with power to try as a Magistrate all offences not punishable with death."
35. Neither has it been asserted nor is there any evidence whatsoever to show that the 1st Class Magistrate who tried the: present case was a Magistrate empowered under section 30 of the Code of Criminal Procedure. Admittedly the Magistrate has been empowered under section 193‑B of the Sea Customs Act with certain additional powers. Proviso (b) to section 408 of the Code of Criminal Procedure has, therefore, no application. It is of interest to note that the Legislature was fully aware of the powers of a 1st Class Magistrate under section 32 of the Code of Criminal Procedure and yet under the Sea Customs Act it authorised the 1st Class Magistrate to pass a sentence of imprisonment and fine higher than those mentioned in section 32 of the Code of Criminal Procedure, Legislature was also fully aware of the fact that an appeal had been made available to a person convicted on a trial by a Ist Class Magistrate to the Court of Session, and yet it did not consider it necessary to say,, either that no appeal lay from such conviction under the Sea Customs Act, or that the appeal would lie to a particular forum. In the absence therefore, of any special provision to the contrary the provisions of the Code of Criminal Procedure would apply and a natural application of the provision of section 408 is that the appeal will lie to the Court of session. It would also be of interest to note that the difference between section 30 of the Code of Criminal Procedure and section 193‑B. of the Sea Customs Act is that while the former confers jurisdiction upon a particular class of Magistrate to try certain offences in certain areas the latter merely clothes a First Class Magistrate with certain enhanced powers. The Magistrate trying an offence under the Sea Customs Act derives his jurisdiction not from section 193‑B of the Sea Customs Act but from sections 187 and 193‑A of the Act read in conjunction with section 29 of the Criminal Procedure Code and the 1st portion of the Second Schedule to the said Code. There can be no inherent objection to the Court of Session entertaining an appeal from an order of conviction and sentence exceeding four years passed by a Magistrate of First Class in exercise of certainty additional powers under a special statute. In spite of such] additional powers the First Class Magistrate remains sub ordinate to the Court of Session. On a careful consideration of the relevant provision of the Sea Customs Act, and the Code of Criminal Procedure I have come to the conclusion that a person who has been convicted on a trial held by a First Class Magistrate empowered under section 193‑B of the Sea Customs Act may appeal to the Court of Session, and therefore, the three appeals of the petitioners before the Court of Session o Dinajpur were competent and legal.
36. Having disposed of the preliminary point I now proceed to consider the various contentions advanced on behalf of the petitioners concerning the legality of the conviction of the petitioners and the sentences imposed on them. It has been contended that the evidence does not justify the conviction of the petitioners. As we are dealing with this case on revision we shall have to confine ourselves to an enquiry as to whether any illegality has been committed in the trial or conviction of the petitioners. The evidence have been elaborately and ably discussed by the learned Sessions Judge and we find no reason to disagree with the appraisal and appreciation of the evidence and the conclusions arrived at by him. There is reliable and disinterested evidence to show that the petitioners were occupants of the jeep that was proceeding towards the Indian Border at 3 o'clock in the morning and that they had in their possession among other articles substantial Indian currency. Furthermore when they were challenged and asked to stop, the jeep disregarded the order and proceeded to speed its way onward with the result that it had to be fired at to force it to stop. A search having been made in presence of local witnesses certain goods were seized. In addition two gold balas and one gold necklace with locket were found hidden under halwa (kind of sweetmeat) kept in a Tiffin box. The presence of petitioner Afsaruddin in the jeep was also satisfactorily proved. The defence story having been rightly found unacceptable the inference was irresistible that the petitioners with the assistance of petitioners Afsaruddin and Ramjan Ali were trying to cross the Border into India along with the aforesaid seized goods and thus were trying to export the goods in contravention of the Notifica tion dated 9th September 1965, totally prohibiting the exportation of goods of all descriptions to India.
37. Soon after the last invasion of Pakistan by India two Notifications were issued on the 9‑9‑65 completely prohibiting the import or export to and from India by sea, land or air of goods of all descriptions. The two Notifications were issued under section 3 (1) of the Imports and Exports (Control) Act, 1950 read with Rule 139, Defence of Pakistan Rules, and published in the Gazette of Pakistan, Extraordinary, dated 9th September 1965. Under section 3 (3) of the Imports and Exports (Control) Act all goods to which any order under sub section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted. It may be mentioned further that the route pursued by the petitioners was not the normal route. On these facts and circumstances the act of the petitioners fell within the mischief of section 167 (8) of the Sea Customs Act.
38. Mr. Ismail has strenuously contended, and this contention has been adopted by the learned Advocates appearing on behalf of the petitioners, that even if all the allegations be accepted as proved the offence falls under section 167 (8‑b), and not under section 167 (8‑a) of the Sea Customs Act.
39. Section 267 (8‑a) and (8‑b) are as follows :‑--
40. Offence
41. Section of this Act to which offence has reference.
42. Penalties
43. 8 (a) If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under this Act, be import ed into or exported from Pakistan contrary to such prohibition or restriction; or If any attempt be made so to import or export any such goods; or If any such goods be found in any package produced to any officer of Customs as containing no such goods; or If any such goods, or any dutiable goods, be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in Pakistan; or If any goods, the exporta tion of which is prohibited or restricted as aforesaid be brought to any wharf in order to be put on board any vessel or any aircraft, railway train or other means of conveyance for exportation contrary to such prohibition or restriction and if the goods are such and in such quantity as would normally not be imported or exported for bona fide personal use, unless the contravention is due to bona fide doubt or difference of opinion about the classification of the goods
44. 18 & 19
45. Such goods shall be liable to confiscation and any person concerned in the offence shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding six years and to a fine not exceeding five times the value of the goods, and in addition shall also be liable, if the Magistrate in his discretion so orders to the punishment of whipping. under the customs Tariff or under any law for the time being in force, the onus of proving the existence of such :doubt or difference of opinion being on the person con cerned in the offence; or
(b) If any goods, the im portation and exportation of which is for the time being prohibited or restricted under this Act, be imported into or exported from Pakistan contrary to such prohibition or restriction ; or If any attempt be made so to import or export any such goods; or If any such goods be found in any Package produced to any officer of Customs as containing no such goods; or If any such goods, or any dutiable goods be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in Pakistan, or any aircraft, railway train or other means of conveyance in use for entry into or exit from Pakistan, and if the goods are such and in such quantity as would normally be imported or exported for bona fide personal use."
46. Suchgoods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods.
47. Mr. Ismail has contended that inasmuch as the goods recovered from the possession of the petitioners prima facie show that they were "such and in such quantity as would be normally imported and exported for bona fide personal use" item 8 (b), of section 167 is applicable. Section 167 (8‑b) provides for a much lesser punishment than those that provided for an offence under section 167 (8‑a). The difference in punishment is very great indeed. On a careful reading of the two items of section 167 (~) of the Sea Customs Act, as a whole and together I agree with Mr. Ismail that the chief difference in the application of the two items lies in the fact that while in item 8 (a) "the goods are such and in such quantity as would normally not imported or exported for bona fide personal use" in item 8 (b "the goods are such and in such quantity as would normally be imported or exported for bona fide personal use". This difference is apparent on a proper construction of each one of the two items, and seems to be reasonable having regard to the fact that while in one case the goods are such as would be exported or imported in large quantity obviously for the purpose of trade and commerce; while in the case of item 8 (b) the person tries to take out only his personal goods and the idea of trade and commerce is very remote and not contemplated. A plain construction of each item show that the words "and if the goods are such and in such quantity as would normally not be imported or exported for bona fide‑personal use" in item (8‑a) and "and if the goods are such and in such quantity as would normally be imported or exported for bona fide personal use" in item (8‑b) not only govern the paragraphs in which they occur but also all the other paragraphs which precede the paragraphs in which these words occur. The enormous difference in the punishments provided in the two items also support this view. In my opinion, therefore, in the facts of the present case the petitioners should have been proceeded against either under section 167 (8‑b) of the Sea Customs Act or under section 7 of the Land Customs Act. Both these laws seem to me to be appropriate for dealing with an offence of the present description. Admittedly all the ornaments except a pair of balas and necklace were removed from the persons of the two women‑petitioners. Section 7 of the Land Customs Act is as follows
48. "7. Penalties.‑(1) Any person who‑
(a) in any case in which the permit referred to in section 5 is required, passes or attempts to pass any goods by land out of or into any foreign territory through any land customs station without any permit, or
(b) conveys or attempts to convey to or from any foreign territory or to or from any land customs station any goods by a route other than the route, if any, prescribed for such passage under this Act, or
(c) aids in so passing or conveying any goods, or, knowing.; that any goods have been so passed or conveyed, keeps or conceals such goods or permits or procures them to be kept: or concealed, shall be liable to a penalty not exceeding, where the goods are not dutiable, fifty or, where the goods or any of them are dutiable, one thousand rupees, and any dutiable goods in respect of which the offence has been committed shall be liable to confiscation.
(2) Where any dutiable goods, or any goods in respect of which a notification under section 19 of the Sea Customs Act, 1878 (VIII of 1878), prohibiting the bringing or taking by land of such goods into the provinces and the Capital of the Federation or any specified part thereof, has been issued, are passed by land out of any foreign territory and the Land Customs Officer is of opinion that an offence under sub section (1) has been committed in respect of such goods and that the penalty provided in that subsection is inadequate, he may make a complaint to a Magistrate having jurisdiction.
(3) Such Magistrate shall thereupon inquire into and try the charge brought against the accused person and, upon conviction, may sentence him to imprisonment of either description for a term which may extend to six months, or to fine not exceeding one thousand rupees, or to both, and may confiscate the goods in respect of which the offence has been committed."
49. Accordingly I would alter the conviction of each one of the petitioners from one under section 167 (8‑a) to one under section 167 (8‑b) of the Sea Customs Act and would reduce the sentences passed upon petitioner Afsaruddin to the payment of a penalty of Rs. 4,000 only and would also reduce the sentences of petitioner Ramjan Ali to payment of a penalty of Rs. 2,000 only and the sentences of the other four petitioners to payment of a penalty of Rs. 500 each. I would also confirm the order of confiscation of the seized goods except the jeep.
50. The three rules should be disposed of accordingly.
51. ABDUL HAKIM, J.‑--- I have carefully listened to the judgment just now delivered by my learned brother and I wish to add a few words of my own, particularly on the question of forum of appeal against decision of a 1st Class Magistrate specially empowered by the Provincial Government in this behalf, passing a sentence of imprisonment exceeding four years.
52. It is now well established that where a Magistrate acts not as a special Magistrate appointed under a special law but as an ordinary Magistrate specially empowered by the Provincial Government in this behalf, an appeal will lie against his decision in the usual course under section 408 of the Code of Criminal' Procedure, The Magistrate referred to above being a Magistrate under the Code of Criminal Procedure his order would be appealable and revisable under the said Code. The case‑law on the point have already been considered and discussed by my learned brother and it is not necessary to repeat the same. But one thing to be noted is that in all those cases referred to above the sentences awarded by the learned Magistrates against the accused persons were far below four years. In the instant case two of the accused, namely, Ramzan Ali and Afsaruddin have been sentenced to five years' rigorous imprisonment. Hence the question is where the appeal will lie against the decision of the Magistrate concerned.
53. It appears that in the present case the learned Magistrate passed the enhanced sentence of imprisonment for a term exceeding two years and a fine exceeding Rs. 1,000 on the two accused persons in exercise of his power under section 193‑B of the Sea Customs Act. But can the Magistrate exercise the additional power under section 193‑B of the Sea Customs Act without any special authorisation in this respect by the Provincial Government. Section 193‑B of the Sea Customs Act runs as under :‑
54. "193‑B. Special powers for Magistrate.‑Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the First Class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of an offence mentioned in items 8 and 81 in the Schedule to section 167."
55. The portion "any Magistrate of the 1st Class specially empowered by the Provincial Government in this behalf" in the said section is very significant. It means that a 1st Class Magistrate cal, exercise his power under section 193‑B if he is empowered specially by the Provincial Government in this respect, A careful perusal of the section will show that the Jurisdiction of the Magistrate to pass enhanced sentence under section 193‑B depends upon the investment of special powers by the Provincial Government in this behalf. Now question is wherefrom the Provincial Government derives its source to empower the Magistrate in this behalf. The section 193‑BI itself does not give any power of investment upon the Provincial Government. In the Sea Customs Act there is no such provision! reserving power for the Provincial Government to invest its Magistrates with additional power. It is a Central Act and in the absence of any provision in that Act where is the source of the Provincial Government to specially empower the Magistrate to act under section 193‑B. In my opinion the, source of the Provincial Government is section 30 of the Code of Criminal Procedure. The Provincial Government may invest any of 1st Class Magistrate with special powers contemplated in section 193‑B of the Sea Customs Act under section 30 of the Code of Criminal Procedure. Section 30 of the Code of Criminal Procedure provides that the Provincial Government may notwithstanding anything contained in section 29 invest the District Magistrate or any Magistrate of the First Class, wit power to try as a Magistrate all offences not punishable wit death. The general power given to the Provincial Government under section 30 of the Code is unfettered and the Provincial Government may use that power in aid of section 193‑B of the Sea Customs Act which is supplementary to the said section 30. In this view of the matter the Magistrate in the instant case is ‑Magistrate First Class specially empowered by the Provincial Government under section 30 of the Code of Criminal Procedure, in terms of section 193‑B of the Sea Customs Act and as such au appeal against his decision where he has awarded sentence of (imprisonment exceeding four years shall lie to the High Court under section 408 (b) of the said Code. There is another aspect of the matter. Section 408 of the Code of Criminal provides as follows :‑
56. "Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the First Class, may appeal to the Court of Session Provided as follows :‑
(b) when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal of all or any of the accused convicted at such trial shall lie to the High Court;
(c) when any person is convicted by a Magistrate of an offence under section 124‑A of the Pakistan Penal Code, the appeal shall lie to the High Court."
57. It is apparent from the above provisions that ordinarily an appeal against an order made by the Assistant Sessions Judge, the District Magistrate or other Magistrate of the First Class will lie to the Court of Session but in a case where the Assistant Sessions Judge or a Magistrate specially empowered under section 30 has passed any sentence of imprisonment exceeding four years or any sentence of transportation the appeal shall lie to the High Court. The section also provides that in the case of a conviction by a Magistrate in a seditious matter under section 124‑A of the Penal Code the appeal shall always lie to the High Court.
58. Section 408 of the Code must be read with its pro visos (b) and (c) each has put an embargo on the main provision of the section and made a departure to the general provision of filing an appeal to the Court of Sessions. Why the Legislature has introduced these bars? The reasons obviously are the severity of the sentence and the gravity of the offence. The Legislature by introducing the two provisos seems to have intend that when a long term of imprisonment has to be under gone, the question whether the offence is proved and whether the conviction and sentence is justified, should be heard in appeal by a Court of higher grade than it would be heard by if the sentence were less. Thus the underlying principles behind the two provisos are clearly the long term sentence and the nature and gravity of the offence. Judging the instant case in the above principles and treating the sentence passed by the learned Magistrate as a long one, I think, the appeal will lie to the High Court and not to the Court of Session. Even in the High Court too such long sentence matters are heard by the Division Bench and not by Single Judge.
59. Proviso (b) to section 408 indicates that a Sessions Judge can hear the appeal against an order of conviction and sentence up to four years only. In the Criminal Procedure Code there is no other provisions empowering the Sessions Judge to hear an appeal against a decision where the sentence is more than four years. This proviso also gives a right to the accused who have been sentenced to a period more than four years to have his appeal heard by the High Court. Judging the present case on this principle also the appeal cannot be heard by the Sessions Judge and it should be heard by the High Court.
60. The other points involved in this case have been considered by my learned brother in extenso and I need not enter into those matters.
61. The High Court for the ends of justice may convert a revisional application into a petition of appeal in a fit case. Treating the present petitions for revision as petitions of appeal and considering all aspects of the case there is no alternative but to allow the same.
62. The learned Advocates appearing for the petitioners haves placed the relevant evidence before us. Considering the facts and materials on record I am in full agreement with my learned brother that section 167 (8‑a) of the Sea Customs Act has no application to the facts of the present case. I therefore, agree with the order proposed to be passed in the matter by my learned brother.
ORDER OF THE COURT
63. As I have the misfortune to differ with my learned brother on the forum of appeal with the result that no final order can be passed in the Rules, I send the records of these cases to the learned Chief Justice to appoint a Judge or Judges of this Court under clause 36 of the Letters Patent to hear the cases upon the following point on which we have differed :‑
64. What is the forum of appeal under section 408 of the Code of Criminal Procedure from a conviction under section 167 (8‑a) of the Sea Customs Act and a sentence of rigorous imprisonment exceeding four years passed there under by a First Class Magistrate in exercise of the powers conferred on him under section 193‑B of the Sea Customs Act?
65. K. B. A. Order accordingly.