KHADIM HUSSAIN Versus State

ORDER

IJAZ AHMAD CHAUDHRY, J.-- -Through this petition under sections 435/ 439 Cr.P.C. petitioner challenges the order dated 23-9-2003 passed by learned Additional Sessions Judge, Alipur by which he has dismissed the appeal filed by the petitioner against conviction on the ground that the appeal can be filed before the High Court as the sentences awarded to him having been ordered to run concurrently is more than four years.

2. Briefly the facts of the case are that petitioner was accused in case F.I.R. No.260 of 2002 registered at Police Station Bait Mir Hazar under sections 382/411, P.P.C. On conclusion of the trial vide judgment dated 2-6-2003 passed by the learned Judicial Magistrate Ist Class, Alipur, he was convicted under section 392, P.P.C. and sentenced to three years' R.I. with direction to pay Rs.10,000 or in default thereof to further undergo S.I. for one year. He was also sentenced to three years' R.I. under section 411, P.P.C. Both the sentences were directed to run consecutively. Benefit of section 382-B, Cr.P.C. was also extended to him. An appeal was filed before the learned Additional Sessions Judge, Alipur, which was dismissed as withdrawn vide order dated 21-6-2003 in order to approach this Court. Then another appeal was filed, which has been dismissed vide order dated 23-9-2003 by the learned Additional Sessions Judge, Alipur on the ground that earlier appeal was dismissed as withdrawn.

3. Learned counsel for petitioner contends that proviso to section 408, Cr.P.C. was not applicable in the present case as the sentence was not passed by the Assistant Sessions Judge or the Magistrate specially empowered under section 30, Cr.P.C. exceeding four years, hence the appeal was maintainable before the learned Sessions Court. Relies upon 1991 MLD 2203 and 1986 PCr.LJ 270, wherein same principle was held by this Court.

4. Learned A.A.-G. only opposes this revision petition on the ground that the appeal before the learned Additional Sessions Judge was dismissed as withdrawn on the statement of learned counsel for the petitioner.

5. I have heard the learned counsel for the parties and also perused the record. From the bare perusal of section 408, Cr.P.C. it is clear that any conviction and sentence passed by a Magistrate is appealable before the Court of Session and if the accused is convicted by learned Assistant Sessions Judge and sentenced to more than four years that is appealable in B this Court. As in the present case conviction and' sentence has been passed by the learned Magistrate Ist Class only following the dictum laid down by this Court in Muhammad Yaqoob v. The State (1991 MLD 2203), the relevant portion of which is reproduced here for ready reference:

"The words "or a Magistrate specially empowered under section .30 passes any sentence of imprisonment for a term exceeding four years" used under proviso to section 408 Cr.P.C. are of great significance and will show that any person convicted by a Magistrate Section 30, Cr.P.C. to imprisonment for a term exceeding 4 years may file appeal direct to the High Court. Since in the instant case, the appellant has not been convicted by Magistrate specially empowered under section 30 of the Criminal Procedure Code, so the present appeal does not lie before this Court, instead it lies to Court of Session. No doubt, the long-standing and general impression among the lawyers is that, in case of sentence exceeding 4 years, the appeal lies before the High Court, but this is not legally correct."

It is held that the appeal was maintainable before the learned Sessions Court. I am of the view that the appeal of the petitioner was dismissed as withdrawn under the impression that the appeal was not maintainable before the Sessions Court. The Court itself was bound to apply the correct law. The order dated 21-6-2003 passed by the learned Additional Sessions Judge, Alipur being against the dictum laid down in Muhammad Yaqoob's case (supra) is declared to be illegal and the subsequent order dated 23-9-2003 passed on the ground that earlier appeal was dismissed as withdrawn on 21-6-2003 has become of no c legal effect. Both these orders are set aside by accepting this revision petition and the appeal which was dismissed as withdrawn on 21-6-2003 shall be deemed to be pending and decided on merits after hearing the learned counsel for the parties.

H.B.T./K-24/L Revision accepted.