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Criminal Appeal No.26 of 1979, decided on 10th May, 1986.
‑‑‑S.408‑‑Penal Code (XLV of 1860), S.411/457‑‑Appeal‑‑Proper forum‑ Aggregate sentence of 5 years by Magistrate 1st Class‑‑Appeal against sentence of imprisonment exceeding 4 years, held, would lie to High Court, if passed by Magistrate specially empowered under S.30, Cr.P.C. and not by first Class Magistrate‑‑‑ Appeal was, therefore, returned for presenting same before Court of Sessions.
M.H. Zafar Misson for Appellant.
Shaheen Masud Rizvi, A.A.‑G., Punjab for the State.
Date of hearing: 10th May, 1986.
This Criminal Appeal arises from the judgment of learned Magistrate 1st Class, Ahmadpur East, whereby he on 5‑3‑1978, convicted Allah Ditta appellant under section 457/411, P.P.C. and sentenced him to 3 years' R.I. under section 457, P.P.C. and 2 years' R.I. under section 411, P.P.C. with the direction that the sentences shall run consecutively.
2. I feel that this appeal against the order of Magistrate 1st Class sentencing the accused to aggregate sentence of 5 years' R.I., lies before the learned Sessions Judge and not before this Court. The relevant section of Criminal Procedure Code may be reproduced conveniently:----‑
"Section 408, Cr.P.C.‑‑ Any person convicted on a trial held by any Assistant Sessions Judge, 'a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 may appeal to the Court of Sessions:
Provided as follows:‑-
(a) [Repealed].
(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, 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 for an offence under section 114‑A of the Pakistan Penal Code, the appeal shall lie to the High Court."
From the examination of the provisions of law, it is very much obvious that it is only in case of sentence of imprisonment exceeding 4 years passed by Magistrate‑especially empowered under section 30, that the appeal will lie to the High Court. Since in the case in hand, the sentence was passed by Magistrate 1st Class, who 'was not specially empowered under section 30, Cr.P.C. , therefore, present appeal does not lie in this Court. The Appeal may be returned to the appellant for presenting it before Court of Sessions.
3. The appellant will remain on bail already granted to him by this Court, till 17‑5‑1986. The appellant may move fresh application for the suspension of the execution of sentence before the learned Sessions Judge, if so advised.
S.A. Appeal returned as incompetent.
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