' This Criminal Appeal arises from the judgment of learned Magistrate Ist Class, Jauharabad, whereby he on 14-10-1984 convicted and sentenced Muhammad Yagoob appellant as under:- ' under section 406, P.P.C. To two years' R.I. ' under section 420, P.P.C. To 3 years' R.I. With the direction that the sentences shall run consecutively.
2. Since the aggregate of the consecutive sentence exceeded 4 years, therefore, the appellant has filed this appeal from the order of Magistrate Ist Class direct to this Court.
3. This appeal was entertained by the Office and was admitted to regular hearing on 27-10-1984. I am afraid this appeal does not lie to this Court. Although for the purpose of the appeal, the aggregate of the consecutive sentences awarded to the appellant under sections 406 and 420, P.P.C. Is 5 years, yet the appeal does not lie before this Court and under the law, as it is, it lies before the Court of Session. The relevant provisions of law may be reproduced advantageously:- "Section 35, Cr.P.C (1)
(2) ...............
(3) "For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence.
' Section 408, Cr.P.C. 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 may appeal to the Court of Session: Provided as follows:-
(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 of an offence under section 124-A of the Pakistan Penal Code, the appeal shall lie to the High Court."
' 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. Administering the law, as it is, the appeal is dismissed as being incompetent.
4. The execution of the sentence was suspended by this Court on 3-11-1985. So, the trial Court will cause the appellant to be arrested and sent to jail to serve the sentence. Needless to add, the appellant may file appeal before the Court of competent jurisdiction with an application of condonation of delay, if so advised.