' Muhammad Younis, petitioner after holding him guilty under section 9/26 of the Hazara Forest Act for illicit cutting of timber by the learned MIC(E)/Special Forest Magistrate, Mansehra vide his order, dated 30-5-1998, was convicted and sentenced to undergo 3 months' S.I. And fine of Rs,6,000 or in default to undergo 6 months' S.I. Has filed an appeal before the learned Sessions Judge, Mansehra against his aforesaid conviction and sentence. The learned Sessions Judge after hearing the learned counsel for the petitioner as well as the PP returned the appeal to present the same before proper forum as according to Law Reforms Ordinance, 1972 read with Legal Reforms Act, 1997 the appeal against the order of conviction passed by Executive Magistrate (Special Magistrate) cannot be competently filed before the Sessions Judge as it is only against the order of conviction and sentence of Judicial Magistrate which can be filed and heard by him. The petitioner felt aggrieved, filed the present revision petition under section 435 read with section 439, Cr.P.C.
2. After the enforcement of the Legal Reforms Act, 1997 making amendment in section 408 whereby it has been provided that appeal shall lie from the order of conviction and sentence passed by the Judicial Magistrate to the Sessions Judge, the learned counsel for the petitioner as well as the State are unanimous on the point that there is no forum provided by law for filing of appeal against the order of conviction passed by Executive Magistrate of the 1st Class. According to section 435, Cr.P.C., as amended, the High Court as well as the Sessions Judge is having the power to call for and examine the record of any proceedings before any inferior Criminal Court situated within the limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality, or propriety of any finding, sentence or order recorded or passed and as to the irregularity of any proceeding of such inferior Courts. An explanation was added to the said section whereby all the Magistrates were held to be inferior to Sessions Judge for the purpose of this section. The Sessions Judge is having the powers under section 439-A, Cr.P.C. To exercise all those powers given to the High Court under section 439, Cr.P.C. And which includes the powers under section 423, Cr.P.C., the powers of the Appellate Court to set aside the order of conviction or sentence or to modify it. The accumulative effect of section 435 read with section 439-A, Cr.P.C. The Executive Magistrate 1st Class is inferior to the Sessions Judge and in the absence of any forum of appeal to challenge his order of conviction, the Sessions Judge is having the power to entertain a revision petition under section 435 read with section 439-A, Cr.P.C.
3. The learned Sessions Judge made a reference to section 439(5), Cr.P.C. And was of the opinion that in view of said embargo the revisional powers cannot be exercised by him but in this respect he has fallen into error as the embargo has been placed only when the appeal can be filed competently and was not filed. But here in the instant case there is no forum for filing of appeal and thus the said bar would not come in the way of the petitioner as he was unable to tile an appeal competently before any forum and resultantly it is held that the learned Sessions Judge can exercise his revisional power in the instant case.
4. Consequently while accepting this petition the case is sent back to the learned Sessions Judge to entertain the appeal as a revision petition, which shall be deemed pending, and to decide it on merits.