By judgment dated 25-10-1994 passed by the Civil Judge/Magistrate (Section 30, Cr.P.C.) Sahiwal (F.I.R. No.102 of 1987, dated 20-3-1987 of P.S. City Sahiwal), appellant Bashir Ahmad son of Badar- ud-Din Rajput was convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced as follows:---
(a) Under Article 3, he has been sentenced to two years' R.I., five stripes and also a fine of Rs.2,000 and, in default of payment of fine, to undergo further S.I. For two months.
(b) Under Article 4, he has been sentenced to two years' R.I., five stripes and a fine of Rs.2,000 and in default of payment of fine to further undergo S.I. For two months.
It was directed by the impugned judgment that both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Was extended to him.
2. I have heard the arguments of Mr. Shaukat Rafique Bajwa, Advocate for Mr. Chaudhry Inayatullah Cheema, learned counsel for the appellant, and Mr. Muhammad Anwar Dholan, learned counsel for the State.
3. When this appeal came up for hearing before me on 8-5-1995, a preliminary objection about the maintainability of this appeal was raised on behalf of the State in view of the provisions of Article 27of the Prohibition (Enforcement of Hadd) Order, 1979. Second proviso to Article 27 lays down that against any order passed under the Prohibition Order, 1979, awarding sentence of imprisonment in excess of two years, the appeal shall lie to the Federal Shariat Court. It was argued on behalf of the State that this appeal should have been filed before the Sessions Judge, Sahiwal, under section 408, Cr.P.C. And the appeal before this Court against the impugned judgment is not competent. At the request of learned counsel for the appellant, the case was adjourned for preparation of arguments on this preliminary objection. Today arguments have been heard and it is conceded by learned counsel for the appellant that the appeal is not competent before this Court and should have been filed before the learned Sessions Judge, Sahiwal.
4. Preliminary objection taken on behalf of the State about the maintainability of this appeal before this Court is valid. Reference has been made earlier to the second proviso to Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979, which provides that against any order passed under the Prohibition Order, 1979, awarding sentence of imprisonment in excess of two years, the appeal shall lie to the Federal Shariat Court. From this it follows that, in cases under the Prohibition Order, 1979, where the substantive sentence of imprisonment does not exceed two years, the appeal would not lie to the Federal Shariat Court. The substantive sentence awarded to the appellant under Article 3 of the Prohibition Order, 1979, is two years' R.I. And similar sentence of two years' R.I.
Has been awarded under Article 4. The two sentences have been directed to run concurrently. In the circumstances, the sentence of imprisonment awarded to the appellant by the A impugned order would deem to be two years' and not in excess of two years'. The appeal is, therefore, not competent before this Court in view of second proviso to Article 27 of the Prohibition Order, 1979.
The impugned judgment having been passed by Magistrate (Section 30, Cr.P.C.), the appeal was competent before the learned Sessions Judge, Sahiwal.
5. As a result, it is, therefore, directed that the memo of appeal filed by the appellant before this Court be returned to learned counsel for the appellant for presentation of the same before the competent Court i.e. The 8 learned Sessions Judge, Sahiwal, who may decide the appeal himself or assign the same to any Additional Sessions Judge for disposal. Memo of appeal with all annexures may be returned to the learned counsel for the appellant on learned counsel supplying copy of complete set of the memo of appeal with annexures duly attested by learned counsel for the appellant.
6. This is a case of March, 1987 and the prosecution case is that, on his personal search, 15 grams of heroin was recovered from his person. The appellant is on bail from this Court. In the special circumstances of this case, it is directed that the bail granted to the appellant shall remain in force for a period of two months from today to enable the appellant to approach the t Appellate Court and seek interim relief therefrom.
Criminal Appeal No.360/L of 1994 stands disposed of accordingly.