' SYED SHABBAR RAZA RIZVI, J.--- This petition seeks transmission of the main criminal appeal to the learned Sessions Judge, Mianwali in view of judgment of this Court, dated 23-7-2004 in Criminal Appeal No,24 of 2004/BWP. This petition is allowed and the main appeal is ordered to be transmitted to the learned Sessions Judge, Mianwali for its decision in accordance with law.
2. According to the judgment of the learned single Bench, in Criminal Appeal No,24 of 2004/BWP, if a person is convicted by any Magistrate, including Magistrate Section 30 and if the term of the sentence exceeds 7 years, appeal shall lie to the Court of Session. Relevant para. Of the judgment of the learned Single Judge is as under:-- "The wordings of new section 408 of the Cr;P.C. Have provided that any person who has been convicted on a trial held by an Assistant Sessions Judge or by any Judicial Magistrate may appeal to the Court of Session. In subsection (b) of section 408 the previous words "or a Magistrate" specially empowered under section 30 were omitted. The impact of this subsection now is that this subsection refers to cases tried only by Assistant Sessions Judge and not to Judicial or other Magistrate. So, the wording of section 408 read with subsection (b) provides that any person if is convicted on a trial held by any Judicial Magistrate (it should have been Magistrate under Section 30) even then he can file an appeal to the Court of Session."
3. Initially this matter was placed before a Single Bench, one of us (Syed Shabbar Raza Rizvi, J.). In view of the interpretation of a statutory provision, it was considered desirable that this case should be placed before a Division Bench of this Court. Accordingly, the present Division Bench was constituted and matter was placed before us.
4. We agree with the decision of the learned Single Bench rendered in Criminal Appeal No,24 of 2004/BWP dated 23-7-2004. But at the same time we want to record a judgment of our own for reasons which will follow the subsequent paras.
5. Section 6 of the Chapter 2 of the Criminal Procedure Code, 1898, provides classes of Criminal Court and Magistrates. It provides that there shall be two classes of Criminal Court in Pakistan, namely:--
(i) Court of Session.
(ii) Courts of Magistrates..
6. The Courts of Magistrates are further classified as under:--
(i) Magistrates of the First Class;
(ii) Magistrates of the Second Class; and
(iii) Magistrates of the Third Class.
7. Under section 7 of the Code, each Province consists of Sessions Division; and every Sessions Division shall for the purposes of Criminal Procedure Code, 1898 tie a District or consists of Districts.
8. Under section 9, a subsection (1) of the Code, the Provincial Government establishes a Court of Session for every Sessions Division, and appoints a Judge of such Court. Under section 9(c), the Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
9. Under section 12 of the Code, the Provincial Government may appoint as many persons as it thinks fit to be Magistrates of First Class, Second Class or Third Class in any District and may from time, to time define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.
10. Under section 17 of the Code, all Magistrates appointed under sections 12 and 14 and all Benches constituted under section 15 shall be subordinate to the Sessions Judge and he may from time to time make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16 as to the distribution of business among such Magistrates and Benches. Under subsection (3) of section 17, Cr.P.C. All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Judges. Under subsection
(4) of section 17, the Sessions Judge may, also, when he himself is unavoidably absent or incapable of acting, make provisions for the disposal of any urgent application by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Sessions Judge, by the District Magistrate and such Judge or Magistrate shall have jurisdiction to deal with any such application.
11. Under section 28 of the 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 8th Column of the Second Schedule to be triable.
12. Under section 30 of the Code, notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences punishable with death.
13. Under section 31 of the Code, High Court may pass any sentence authorized by law. The Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law but any sentence of death passed by any Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorized by law, except a sentence of death or of imprisonment for life or imprisonment for a term exceeding 7 years.
14. Under section 32 of the Code, the Courts of Magistrates of First Class may pass the sentence of imprisonment for a term not exceeding three years including such solitary confinement as is authorized by law. Courts of Magistrates of the Second Class may pass a sentence of imprisonment for a term not exceeding one year including such solitary confinement as is authorized by law. The Courts of Magistrates of the Third Class may pass a sentence of imprisonment for a term not exceeding one month.
15. Under section 34 of the Code, the Court of a Magistrate, specially empowered under Section 30 may pass any sentence authorized by law, except a sentence of death or of imprisonment for a term exceeding 7 years.
16. The survey and review of the above mentioned sections of Code will show that Courts of Session and Courts of Magistrates are two different kinds of Criminal Courts. It is evident from collective reading of sections 6 and 9 of the Code. Section 6 says that there are two classes of Criminal Courts i,e, Courts of Session and Courts of Magistrates. Section 9 provides that the Provincial Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court, and also adds that Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges. Appointment of Magistrates is separately provided under section 12 which reads, "the Provincial Government may appoint as many persons as it thinks fit to be Magistrate of First Class, Second Class or Third Class in any District". Subsection (4) of section 14 elaborates and makes it clear that Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge are a different class in Sessions Division. Subsection (4) of section 17 reads that the Sessions Judge may also when he himself is unavoidably absent or incapable of acting make provisions for the disposal of any urgent application by an Additional or Assistant Sessions Judge and such Judge shall have jurisdiction to deal with any such application. In subsection (4) of section 17 this jurisdiction is not conferred upon any Magistrate, even the Magistrates are not mentioned in the above context.
17. Under section 31 of the Code, a High Court may pass any sentence authorized by law. Under the same section under subsection (2), a Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law but any sentence of death passed by any Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge is also empowered under the same section along with a Sessions Judge or Additional Sessions Judge. Subsection (3) of section 31 reads that an Assistant Sessions Judge may pass any sentence authorized by law, except sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years. In this section an Assistant Sessions Judge is again shown with a Sessions Judge or Additional Sessions Judges.
18. The power of Magistrates to sentence is given under section 32. According to section 32, a Magistrate of First, Class cannot pass a sentence of imprisonment exceeding three years, a Magistrate of Second Class cannot pass sentence of imprisonment exceeding one year. And a Magistrate of Third Class cannot pass a sentence of imprisonment exceeding one month. The distinction between two classes regarding power to pass a sentence of imprisonment is also visible. However, combined reading of sections 30 and 34 shows that the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death or imprisonment in excess of 7 years. It may be noted here that collective reading of sections 30 and 34 conveys that a Provincial Government may confer power upon a Magistrate .Of First Class to pass a sentence of imprisonment not exceeding 7 years. This power can be specially empowered by a Provincial Government on a particular Magistrate First Class, whereas, all Assistant Sessions Judges may pass any sentence of imprisonment not exceeding 7 years. The above comparison also shows that Assistant Sessions Judge stands at higher pedestal than a Magistrate of First Class. As all Magistrates First Class are not vested the above power as a class, whereas, all Assistant Sessions Judges are vested with the above power as a class. Therefore, Assistant Sessions Judges and Magistrates Section 30 are two different classes. The Assistant Sessions Judge stands at higher pedestal and also is a part of a Sessions Judge and Additional Sessions Judge.
19. In 1998 PCr.LJ 350(b), it has been held that reading sections 17(3) and (4) and section 31(3) together all, it appears that the Court of Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge, are all Courts of Sessions Judge. The only limitation provided in regard to exercise of powers is when case is tried by the Assistant Sessions Judge, he cannot pass the sentence of death or imprisonment for a term exceeding 7 years. In 1994 PCr.LJ 2507, his Lordship Abdul Rahim Kazi, J. Surveyed and examined a number of judgments on the subject and finally held that the Courts of Assistant Sessions Judge, Additional Sessions Judge and Sessions Judge are but one Court exercising jurisdiction in the same Sessions Division. He further held the only limitation is that an Assistant Sessions Judge cannot pass a term of imprisonment which may exceed 7 years. The exact words of his Lordship are as given hereinafter:- "From the above discussion it can safely be concluded that the Court of Assistant Sessions Judge/Additional Sessions Judge and Sessions Judge are but one Court exercising jurisdiction in the same Sessions Division and as observed above, the only limitation is that the Additional or Assistant Sessions Judge can hear and try only those cases which are assigned to them by a general or special order of Provincial Government or Sessions Judge. It may further be observed that an order passed on a bail application is an order amounting to case decided. The Sessions Judge is competent under section 17(4) as well as section 193(2), Cr.P.C. To assign such application to the Additional Sessions Judges, however, the restriction with regard to the exercise of powers by the Assistant Sessions Judge are that he could hear or try such cases or applications in such cases where he can pass sentence of imprisonment extending to seven years."
20. Before the amendments, discussed in the order of the learned Single Judge, section 408, Cr.P.C.
Existed in the form as under:-- "408. Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any persons 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:--
(a) . ..
(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."
21. After the amendments, it has come into present form, which is as under:-- "408. Any person convicted on a trial held by an Assistant Sessions Judge, [or a Judicial Magistrate] or any person sentenced under section 349 may appeal to the Court of Session: Provided as follows:--
(a) .......................................................................................................
(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;
(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."
22. For the present discussion, section 408(b), Cr.P.C. Is relevant, which reads, "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 show 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 and also with judgment as mentioned above i,e, Abdul Rafiq Kasoo v. State 1994 PCr.LJ 2507 authored by his Lordship Abdul Rahim Kazi, J. His Lordship held that 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 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.
23. Above are our reasons to agree with the order passed by the learned Single Judge in Criminal Appeal No,24 of 2004/BWP and for ordering transmission of the main criminal appeal to the learned Sessions Judge, Mianwali.