' MUHAMMAD ANWAARUL HAQ, J.---This appeal has been filed by the appellants against judgment dated 16.03.2015 passed by learned Magistrate Section 30, Okara, whereby they have been convicted under Section 392 read with Section 397, P.P.C. And sentenced to seven years R.I. With a fine of Rs.10,00,000/- each.
2. Office had raised an objection on direct filing of this appeal before the High Court, however, on the insistence of learned counsel for the petitioner subject to decision of the office objection on judicial side the same was overruled.
3. Learned counsel for the complainant requests for decision of question of maintainability of this appeal in pursuance of order dated 07.05.2015 passed by this Court.
4. Heard. Record perused.
5. For resolving the controversy regarding maintainability of this appeal directly before this Court, I feel it expedient to reproduce the original Section 408 Cr.P.C. As under:- "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. (underlined for emphasis)
' Provided as follows:-
(a) [Rep. By the Criminal Law Amendment Act (XII of 1923), S.23].
(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. (underlined for emphasis)
(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."
' Section 408 Cr.P.C. Was amended through Notification No.S0(J-I1)1-8/75(P-V) dated 21.03.1996 to the extent of Punjab that reads as under:- "408. Appeal from sentence of Assistant Sessions Judge or Judicial Magistrates.--Any person convicted on a trial held by an Assistant Sessions Judge [or a Judicial Magistrate], Special Magistrate or any person sentenced under section 349 may appeal to the Court of Session."
(a) [Rep. By the Criminal Law Amendment Act (XII of 1923), S.23].
(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."
6. Section 408, Cr.P.C., subsequently amended through notification referred above clearly reflects that any sentence passed by any class of Magistrate including Special Magistrate is appealable to the Court of Session.
In the case of Aman Ullah v. The State (2005 PCr.LJ 1435) a Division Bench of this Court after analyzing significance 'of amended Section 408 Cr.P.C. has held as under:- "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 shows 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 afe 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."
' Hon'ble Islamabad High Court has also subscribed the same view in the case of Jehanzeb and 3 others v. The State and another (2013 M LD 1054).
7. In view of all above, I am of the considered view that as words and figure "or a Magistrate specially empowered under Section 30" have been omitted from Section 408(b) Cr.P.C. by Law Reform Ordinance, 1972 enforced in Punjab through Notification No,50(J-II)1-8/75(P-V) dated 21.03.1996, therefore, any sentence passed by any class of Magistrates including Special.
Magistrates is appeal able to the Court of Session and any such appeal directly filed before the High Court is not maintainable.
8. As the change of forum shall have effect upon the question of limitation for filing of such an appeal, therefore, the matter is disposed of with a direction to the office to transmit this file to learned Sessions Judge, Okara, who may entertain this appeal himself or entrust the same to any