JUDGMENT OF EDUSEI J.
The appellant was charged with stealing various articles to the value of N¢245.00, the property of one Afua Donkor and was convicted and sentenced to twelve months' imprisonment with hard labour by the district magistrate grade II sitting at Dompim. The district magistrate recommended the deportation of the appellant after serving his sentence. Against this sentence and particularly the order of deportation the appellant has appealed to this court.
[p.778]
It would appear that the district magistrate exercised his powers under the Aliens Act, 1963 (Act 160), in recommending the deportation of the appellant. Section 12 (1) of Act 160 says: "An alien is liable to deportation-(a) if a Court recommendation for his deportation is effective under the following subsection"; and subsection (2) of section 12 also states:
"(2) A court recommendation for the deportation of alien shall be effective for the purposes of paragraph (a) of the preceding subsection if it was made by a court on conviction of an offence for which the court had power to impose a sentence of imprisonment without the option of a fine,..."
Counsel for the appellant argued that the conviction of the appellant was founded on a charge of stealing under section 124 of the Criminal Code, 1960 (Act 29), and the said offence is a second degree felony; therefore the appellant could not be the subject of recommendation for deportation, and counsel's contention was that since the court could impose a sentence of a fine for such an offence the district magistrate could not recommend deportation and the court was referred to section 297 (1) of the Criminal Procedure Code, 1960 (Act 30), which is in the following terms:
"Where a person is convicted of any felony or misdemeanour or any offence punishable by imprisonment (other than an offence for which the sentence is fixed by law) the Court may, in its discretion, sentence him to a fine in addition to or in lieu of any other punishment to which he is liable".
The learned state attorney also contended that the order for deportation made by the district magistrate was in order and referred the court to section 296 (2) of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 5 which states that:
"(2) Where a crime, not being a crime mentioned in subsection 5), is declared by any enactment to be a second degree felony and the punishment for the crime is not specifi
