' TANZIL-UR-REHMAN, C.J.--This reference relates to the question whether a judgment passed by a Magistrate with powers under Section 30, Cr.P.C., convicting an accused under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentencing him for imprisonment not exceeding seven years is within his jurisdiction or not.
2. Learned counsel for the appellant submitted that a trial by the learned Magistrate with powers under section 30, Cr.P.C., was without jurisdiction inasmuch as section 29, Cr.P.C., read with its 2nd Schedule, titled as "Offences Against Other Laws" specifically provides that the offence punishable, inter alia, with imprisonment for life or imprisonment exceeding seven years is triable by a Court of Session. Reliance was placed on the case of Jamal v. The State (PLD 1989 Kar.231) and an unreported judgment of this Court in Criminal Appeal No,234/L of 1989 (Nawabzada Khan v. The State). A reference was also made to an unreported judgment of this Court in Appeal No, 430/L of 1990 Maqsood Ahmad v. The State.
3. Chapter III, Cr. P.C., deals with powers of Courts. It describes offences cognizable by different Courts. Section 28 relates to the offences under Penal Code. It provides that subject to the other provisions of the Criminal Procedure Code any offence under Pakistan Penal Code may be tried by the High Court, or by the Court of Session, or by any other Court by which such offence is shown in the eighth column of the 2nd Schedule to be triable. Section 29 relates to the offences under other laws. It provides that subject to the other provisions of the Code of Criminal Procedure any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. It further provides that when no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under the Criminal Procedure Code by which such offence is shown in the eighth column of the Second Schedule to be triable.
4. We may also refer to sections 30, 31 and 34 which seem to be relevant. Section 30 provides that in the Province of Punjab, North-West Frontier Province, in Sindh and in those parts of the Provinces in which there are Deputy Commissioners or Assistant Commissioners the Government may, notwithstanding anything contained in section 29, invest District Magistrate or any Magistrate of the 1st class with powers to try as a Magistrate all offences not punishable with death. Section 31 provides for sentences which High Courts and Sessions Judges may pass: A High Court may pass any sentence authorised by law, whereas the Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorised by law, except a sentence of death or of imprisonment for a term exceeding seven years. Section 34 provides, that Court of a Magistrate, specially empowered under section 30 may pass any sentence authorised by law except a sentence of death or of imprisoment for a term exceeding seven years.
5. In the Karachi case Jamal v. The State (PLD 1989 Karachi 231) relied on by the learned counsel for the appellant, one of us namely Tanzil-ur-Rahman, J., as he then was, observed that "Moreover, Article 29 of the Prohibition Order specifically provides that "This Order shall have effect notwithstanding anything contained in any other law for the time being in force". It seems for offences in relation to a certain quantity of the intoxicant of which offences are alleged to have been committed by the accused, different scales of punishment have been prescribed so as to give the jurisdiction in the hierarchy of the Criminal Courts in the country.
It, therefore, follows that if the offence falling under Articles 3 and 4 of the Prohibition Order is punishable with imprisonment for less than one year or with whipping not exceeding 10 stripes, with or without imprisonment or with fine only. It is triable by any Magistrate and if the offence is punishable with imprisonment for one year and upwards but less than three years or with whipping not exceeding 40 stripes with or without imprisonment it is triable by Magistrate of the first or second class. If the offence is punishable with imprisonment for three years and upwards but not exceeding 7 years or with whipping not exceeding 80 stripes with or without imprisonment, it is triable by the Court of Sessions or Magistrate of the First Class. But if the offence is punishable with imprisonment for life, imprisonment exceeding 7 years or with whipping exceeding 80 stripes with or without any other of the said punishments the offence is triable by Court of Session only."
' The above judgment was given on a criminal transfer application moved by the applicant/accused for transfer of a Session's case pending in the Court of Additional Sessions Judge Hudood, Sukkur, to be transferred to the Court of Magistrate Ist Class. The application was rejected. Thus the facts of the said case stand on its own footing and are not relevant to the point at issue before us.
6. The other judgment of a Division Bench of this Court as also relied on by the learned counsel in the unreported case Nawabzada Khan v. The State wherein the view in Jamal's case was approved is also not applicable to the point under examination by us. In the said case the learned Sessions Judge had forwarded the case, under Hudood Ordinance, to the Magistrate. The said order was challenged by the State in a revision application. A Division Bench of this Court held that the case was triable by a Sessions Judge and as such he should not have forwarded the same to the Magistrate.
7. The third judgment as also relied on by the learned counsel pronounced by the Full Bench comprising three Judges of this Court, of which I was a member, though relevant to the point at issue, but it appears that the attention of the Court was not invited to Article 27 of the Prohibition Order, 1979 which the learned counsel for the appellant in the case before us has very candidly referred to us, which is creditable on his part. Article 27 reads- "27.--(1) Unless otherwise expressly provided in this Order, the provisions of the Code of Criminal Procedure, 1898, hereinafter referred to as the said Code, shall apply, mutatis mutandis, in respect of cases under this Order: ' Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefor, be convicted and punished for that offence.
' Provided further that an offence punishable under Article 8 shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order under that Article (or from an order under any other provision of this Order which imposes a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court; ' Provided further that a trial by a Court of Session under this Order shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed.
(2) The provisions of the said Code relating to the confirmation of the sentence of death shall apply, mutatis mutandis, to the confirmation of a sentence under this Order.
(3) The provisions of subsection (3) of section 391 or section 393 of the said Code shall not apply in respect of the punishment of whipping awarded under this Order.
(4) The provisions of Chapter XXIX of the said Code shall not apply in respect of the punishment awarded under Article.
8.
8. The second proviso, as is clear from its plain reading, specifically provides that an offence punishable under Article 8 of the aforesaid Order shall be triable by a Court of Session which implies that other offences under the said Order may be tried by a Magistrate authorised under section 30, Cr.P.C. A Magistrate empowered under section 30 may try all offences except not punishable with death but he cannot award punishment of sentence of imprisonment exceeding seven years. However, in case he comes to the conclusion that the case warrants a higher punishment he will forward the same to the Sessions Court under section 347, Cr.P.C. Thus, the judgment in Maqsood Ahmad's case does not lay down correct law. Learned counsel for the appellant. At the end very aptly does not press the point of jurisdiction and submits that the judgment by Section 30 Magistrate is within the four corners of his jurisdiction.
9. The upshot of the above discussion is that the trial by a Magistrate with powers under section 30, Cr.P.C. For an offence punishable with life imprisonment under the provisions of the said order, except Article 8, should be within his jurisdiction but he will not be competent to award sentence of imprisonment for more than seven years. In the instant case the accused was tried for an offence under Article 3 of the Prohibition Order and was sentenced to five years' R.I. In the circumstance, it cannot at all be said that the trial or sentence passed was without jurisdiction. The reference is answered accordingly.