1. NURUL ISLAM, J.--This appeal arises out of an order of conviction and sentence passed on 7-6-66 by Mr. M. Meherullah, Magistrate, 1st Class, Meherpur under section 167(8,1) of the Sea Customs Act.
2. Mr. Muhammad Abdul Haque, the learned Advocate appearing on behalf of the appellants prays for converting the said appeal into 'a revision in view of the fact that it has been decided in the case of Alok Kumar Mitra and others v. The State (21DLR1), that an appeal in such a case would lie to the Court of Session and that the instant appeal was filed long before the said Division Bench decision and .At a point of the when there was doubt as to the forum of appeal in such cases. Mr. Haque, the learned Advocate for the appellants submits that he is not oblivious of the fact that in case it is converted into revision he will not be able to argue the case on facts. He, however, proposes to make his submission only on the ground of sentence.
3. Mr. A. T. M. Masud, the learned D. L. R. Appearing on behalf of the State has no objection to convert the appeal into a revision and he is of the view as he submits before this Court that this Court has jurisdiction under section 439, subsection (1) of the Code of Criminal Procedure to convert the appeal into a revision. In this respect he has referred to us a decision in the case of Rustam Ali Mia Bhuiya v. The State (9DLR424). In the said Division Bench case Mr. Justice Hamoodur Rahman (as his Lordship then was)-while delivering the judgment of the Court observed "There can be no doubt that our powers under section 439 of the Code of Criminal Procedure are unfettered and we have the power to invoke our revisional jurisdiction, no matter how the question is brought to our notice, for, the words `which otherwise comes to its knowledge' in subsection (1) of section 439 are wide enough to enable us to treat this appeal as an application in revision. No prejudice can be caused by adopting such a procedure to the other side, for notice of this matter has already been served on the State and the State is also represented before us. In these circumstances, we propose to treat this as an application in revision and to deal with it accordingly."
4. In that case as it has been found by their Lordships that the provision of section 439 of the Code of Criminal Procedure is wide enough to entertain such case in revision. In the facts and circumstances of the present case the principle of law enunciated in the said case fully applies. But we may point out here that in the said case instead of filing revisional application an appeal was preferred but there was no question of filing a revision case in the Court of Sessions as it is in the instant case before us. In the case reported in 21 D L R 1, it has been decided that in such a case as the instant one before us an appeal would lie before the Court of Sessions. So it may be argued that the provision of subsection (5) of section 439 may stand in the way to convert the instant appeal before us to a revision. But we are of the view that subsection (1) of section 439 is independent of subsection (5) of the said section. Subsection (5) reads as follows:- "(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at, the instance of the party who could have appealed."
5. This provision of subsection (5) shows that at the instance of private party who could have appealed but did not do so, no proceeding by way of revision should be entertained. In the instant case before us an appeal in fact was preferred but due to a subsequent decision of this Court the forum of appeal has since been decided to be before the Court of Session. So, under the special facts and circumstances of the case and in view of the sub--section (1) of section 439 of the Code of Criminal Procedure we are of the view that in such a case as the instant one also the High Court is entitled to exercise its power under section 439 (1) of the Code of Criminal Procedure to convert the appeal into a revision which power in the language of Mr. Justice Hamoodur Rahman (as his Lordship then was) is "unfettered". In another unreported Division Bench decision of this Court in Criminal Revision Cases Nos. 254, 237 and 238 of 1969, decided on 9-10-69 by Salahuddin Ahmed and A. Quasim, JJ., who took the similar view and converted the appeals preferred against orders of conviction and sentence passed under section 167(81) of the Sea Customs Act into revisional applications.
6. For the reasons stated above we are of opinion that the instant appeal be converted into a revision case and we accordingly convert this appeal into a revision case and take up the same for hearing.
7. The prosecution case, in short, is that on the night of the 30th August 1966 the accused-petitioners were going on with a bullock cart, along with border half a mile away and the E. P. R. Personnel on patrol challenged the cart and arrested the accused petitioners with 4 bags of Indian jiras for which they had no permit. They also seized the said goods with the cart and a pair of bullock of which one died. The accused persons were produced with the seized alamats before the thana and the police made out a case to the E. P. R. The Investigating Officer submitted charge--sheet against the accused-petitioners under section 167(81) of the Sea Customs Act. Mr. M. Meherullah, Magistrate, Ist Class, Meherpur who tried the accused-petitioners on a charge under section 167(81) of the Sea Customs Act found them guilty of an offence under the said section and sentenced them to suffer rigorous imprisonment for six years each and to pay, a fine of Rs. 1,500 each, in default, to suffer rigorous imprisonment for one year and six months more. It appears from the judgment that the learned Magistrate after careful consideration of the material evidence on record rightly convicted the accused-petitioners and we do not find anything on record to interfere with the said conviction.
8. Mr. Muhammad Abdul Haque, the learned Advocate appearing on behalf of the petitioners found it difficult to advance an argument so as to have the order of conviction set aside and so he has argued only on the ground, of sentence. The learned Advocate submits that the accused- petitioners had already suffered for about four years in jail and they have lost their bullock and the goods also. Although it appears that the learned Magistrate did not pass any order of confiscation of the said goods but in fact the said goods have been confiscated. The maximum punish--ment has been provided for such an offence is six years.
9. Mr. A. T. M. Masud, the learned Deputy Legal Remembran--cer, who appeared to oppose the rule has been candid enough .To say that in the facts and circumstances of the present case he cannot have any objection as to reduction of sentence.
10. From what we have stated abode, and having regard to the facts and circumstances of the case we think that the ends of justice will be served if we reduce the sentence of each of the petitioners before us to a period already undergone; And accordingly we reduce the sentence of each of the petitioners to the period already undergone.
11. With the said modification of sentence the rule is discharged. The accused-petitioners now be set at liberty forthwith if nut wanted in any other connection.
12. A. QUASIM, J.-I agree.