1990 PLP 44 (MLD)

Qasu v. State P L D 1969 Lah. 48 rel. Syed Saeed Hassan Shirazi for the Appellant. Jamil Haidry, Atlas Khan and Muhammad Umar were convicted under section 380, P.P.C. by the learned District Magistrate, D.I. Khan by his order, dated 22nd June, 1989 for having committed theft in the shop of one Aurangzeb of. D.I. Khan City on 24‑10‑1983 at 2‑30 A.M. The appellant herein and the two other accused were sentenced to undergo four years' rigorous imprisonment and to pay a fine of Rs.1,000 each in default of which they were directed to undergo further rigorous imprisonment for three months each.

2. Jamil Haidry has come up to this Court in appeal against his conviction and sentence.

3. The question is whether this Court is competent to take cognizance of appeal because under section 408 of Cr.P.C. it should have been filed before the Sessions Judge.

4. When the learned counsel for the appellant was confronted with this insurmountable hurdle he half‑heartedly maintained that the sentence of imprisonment in default of payment of fine when added to the substantive sentence 9f imprisonment would exceed four years and, therefore, under proviso (b) to section 408, Cr.P.C. appeal should lie to the High Court.

5. The argument is simply untenable because the aggregate of substantive sentence and that awarded in default of fine is not determinative of the jurisdiction of the appellate Court under section 408 of the Criminal Procedure Code. Exactly an identical contention raised in Qasu v. State P L D 1969 Lah. 48 was repelled. In the precedent cited above the learned counsel for Qasu and other appellants had insisted that since it was open to the appellants to choose to pay the fine or to suffer imprisonment in default, the term of imprisonment should be added to the sentence of four years and the aggregate of the two sentences would be more than four years, the appeal would lie to the High Court. In this context Mushtaq Hussain, J. as his Lordship then was, observed that there is no question of choice between "payment of fine" and "suffering imprisonment in lieu thereof' and further that if there is any choice it is not with the defaulter but with the Court which alone has to decide whether the warrant for recovery of fine be issued in spite of the convict having undergone the sentence inflicted for default. After appraising the provisions of Ss.32, 35, 386(1), 387 and 388 of the Code of Criminal Procedure, read with Ss.66, 67, 68 and 69 of the Pakistan Penal Code, his Lordship concluded thus:‑‑ "The bare reading of sections 32 and 33, Cr.P.C. leaves no manner of doubt that the direction to suffer imprisonment in default of payment of fine is not a `sentence' for the offence, properly so called. The "sentences" are those which have been described in section 32 and they do not include imprisonment in default of payment of fine. Since that is so, such a direction would not warrant the adding of the term of imprisonment in default of payment of fine to the sentence awarded for the offence for the purposes of section 408:' 5‑A. Respectfully following the dictum reproduced above, it is reiterated that the determination of the imprisonment in default of payment of fine makes it clear in terms unequivocal that imprisonment in default of fine. (a) is not related to the sentence, and (b) is not in lieu of the fine.

6. For the foregoing reasons, I hold that this appeal lies to the Sessions Judge and not to this Court and shall be returned for presentation to the proper forum. N.H.Q./924/P Appeal returned for presentation to the Sessions Court.