P L D 1960 Dacca 200 (PLP)

SATTAR, J.‑These three appeals by the Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan, have been heard by us one after another and, though the parties and the facts of the cases out of which they arise are different, we have decided to dispose of them by one judgment, as the important question of law that has been raised in these appeals in common to them all.

2. Government Appeals Nos. 2 of 1957 and 4 of 1958 are directed against the orders of acquittal passed by the Sessions Judge of Sylhet allowing the accused's appeals against their convictions. In these cases, a point has been raised that as the Sessions Judge had no jurisdiction to entertain the appeals, the orders of acquittal were illegal.

3. In Government Appeal No. 3 of 1958, the order of acquittal by the Special Magistrate has been challenged mainly on the ground that the learned Magistrate did not consider the entire evidence on the side of the prosecution.

4. Mr. Muhammad Ismail, the learned Advocate who appears for the respondents in Government Appeal No. 4 of 1958, has raised a point with regard to the maintainability of the present appeals. The arguments advanced by Mr. Ismail in this behalf have been adopted by the learned Advocates who appear for the respondents in the other two appeals. It has been contended that since Act X of 1956 does not provide for an appeal and further that, as it has been held, that no appeal lies against an order of conviction by a Special Magistrate appointed under the said Act, these appeals on behalf of the Provincial Government are not maintainable. The learned Advocate has drawn our attention to section 404 of the Code of Criminal Procedure. According to him, though section 417 of the Code of Criminal Procedure is in very wide terms, the said section should be read along with section 404 of this Code and, according to the contention of the learned Advocate, that section controls the provision of section

417. Section 404 of the Code of Criminal Procedure provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Code of Criminal Procedure or by any other law for the time being in force. It is clear that Act X of 1956 does not provide for an appeal and it is because of this that it has been held in the case of Hari Meah v. The State (P L D 1958 Dacca 333), that no appeal lies against an order of conviction by a Special Magistrate appointed under Act X of 1956. This judgment of a Division Bench of this Court has been upheld by their Lordships of the Supreme Court. The question that arises, therefore, for consideration is, if in spite of the absence of a provision for appeal in the Special Act, an appeal by the Provincial Government, would lie against an order of acquittal passed by a Special Magistrate or by a Sessions Judge on appeal from the decisions of such a Magistrate. Mr. Ismail points out that there will be practical difficulties in disposing of such appeals if such appeals are entertained. He, on a reference to sections 28 and 29 of the Code of Criminal Procedure, has argued that it is clear that the High Court has no original jurisdiction to try offences under Act I of 1956 which have been made exclusively triable by Act X of 1956 by Special Magistrates. The learned Advocate, therefore, urges that if appeals under section 417 in. such cases are entertained, there would be difficulty in exercising powers under section 423 (1) (a). His argument is that it is only in cases where the High Court has original powers of a trial that the powers of finding guilty or/and of passing sentence while disposing of an appeal against acquittal can be exercised. He also points out that the other powers, namely, directing further inquiry or a retrial cannot be exercised, as no appeal or revision lies to the High Court against the decisions of Special Magistrates. The learned Advocate also has drawn our attention to section 428 of the Code of Criminal Procedure and has contended that powers under subsection (1) of that section cannot be exercised by the High Court in these cases because of the absence of a provision for appeal or revision against the orders of convictions of Special Magistrates. In support of his contention that it is only in a case where there is a provision for appeal in the Special Act that the provision of section 417 is attracted, the learned Advocate has relied on a decision of the Federal Court in the case of S. M. K. Alvi v. The Crown (P L D 1953 F C 189). In that case an appeal was preferred against an order of acquittal by a Special Judge acting under the Criminal Law Amendment Act, 1948. A point was raised before their Lordships of the Federal Court that as the Criminal Law Amendment Act did not specifically provide for a appeal against an order of acquittal, the appeal by the Government was incompetent. This argument of the learned counsel for the appellant was repelled by their Lordships on the ground that section 9 of the Criminal Law Amendment Act provided for an appeal against a judgment by a Special Judge and their Lordships, therefore, held that the appeal of the Government was competent in view of the provision of section 9, read with section 417 of the Code of Criminal Procedure. Mr. Syed Abdul Ghani who appears for the appellant in Appeals Nos. 2 of 1957 and 4 of 1958, has, however, maintained that even if no appeal lies against an order of acquittal passed by a Special Magistrate, appeals in these two cases would lie, as the orders of acquittal were passed by the Sessions Judge who had no jurisdic tion to entertain these appeals. He in this connection has relied on a decision of this Court in the case of Md. Tozammal Hossain Talukdar and others v. Puni Agarwallini and others (P L D 1952 Dacca 44). In that case, the question that was raised was whether a Second Appeal would lie against an order passed by the lower Appellate Court which entertained an appeal without jurisdiction. In view of the valuation of the suit, the appeal lay to the High Court. It was held that the Second Appeal was competent inasmuch as the Court of Appeal below had no jurisdiction, by reason of the value of the suit, to entertain and decide the appeal preferred to it and as the result to decide otherwise would be to maintain an order passed without jurisdiction. In support of the view taken in that case, reliance was placed on the decision in the case of Wajuddi Pramanik v. Md. Balaki Moral (30 C W N 63). That a Second Appeal in a civil case lies against a decision passed by a lower Appellate Court which entertained the appeal without jurisdiction has been accepted in a series or decisions, but we have not been able to lay our hands on any such parallel decision in a criminal case.

5. Mr. Ruhul Islam who appears for the appellant in Government Appeal No. 3 of 1958, however, contends that the appeal is maintainable in view of the provisions of section 417, read with section 6 of the Code of Criminal Procedure. He contends that section 6 of the Code of Criminal Procedure con templates 7 kinds of Criminal Courts and one of them is Courts constituted under any law other than the Code of Criminal Proce dure. Section 417 of the Code of Criminal Procedure provides that the Provincial Government may direct the Public' Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. His argument, therefore, is that Courts created by Special Acts irrespective of the fact whether there is a provision for appeal in those Acts are attracted by section 417 of the Code of Criminal Procedure. The argument of the learned Advocate, on the face of it, seems plausible, but, in our view, it cannot stand close scrutiny. If this argument is accepted, an anomalous position would inevitably follow. While an accused convicted by a Court created by a Special Act, if there is no provision for appeal in the said Act, would be deprived of the right of challeng ing findings of facts, such findings can be challenged by the State in cases of acquittal. In our view, such a position could never have been intended by the Legislature. We are making these remarks conscious of the fact that convictions under Act X of 1956 can be and are being challenged by invoking the writ jurisdic tion of this Court. But, reading the provisions of Act X of 1956, as they are, along with the provisions for appeals under the Code of Criminal Procedure, we cannot hold that, in the absence of a provision for appeal under the said Act, the provisions of section 417 by themselves would entitle the Provincial Government to maintain an appeal against an order of acquittal. We, there fore, hold that no appeal lies against an order of acquittal passed by a Special Magistrate under Act X of. 1946 or, on appeal, by a Sessions Judge.

6. We may point out that we have looked in vain for any direct authority in this connection. In the case of Province of Assam v. Lakhi Nayak and others (A I R 1950 Assam 43), relied on by Mr. Ismail, the point that no appeal by the Provincial Government would lie in the absence of an express provision in the Special Act was conceded by the Government Advocate. In the case of the Superintendent and Remembrancer of Legal Affairs, Bengal v. Luchmi Narayan Sarman and another (34 Cr. L J 1070), the point though raised was not decided.

7. Though, in view of our decision on the preliminary point, it is not necessary to decide the appeals on merits, yet, for the sake of completeness, we think we should give our own decision with regard to the merits also. In Government Appeal No. 2 of 1957, as we have already pointed out, the accused was acquitted by the Sessions Judge of Sylhet. He was convicted by a Special Magis trate under section 6 of Ordinance XII of 1956 for keeping in his possession food‑grains in excess of the permissible limit. The learned Sessions Judge, on a consideration of the facts of this case, came to the finding that the accused did not plead guilty and that no written judgment was passed on the date when he was actually convicted. His further finding is that the accused was not examined under section 342 of the Code of Criminal Procedure, which was absolutely necessary in view of the fact that he did not plead guilty. In view of these findings, the learned Sessions Judge acquitted the accused. No argument has been advanced on behalf of the appellant that these findings are not correct. In view of that, we do not think we would have been justified in interfering with the findings of the learned Sessions Judge and his order of acquittal.

8. In Government Appeal No. 3 of 1958 the learned Advocate for the appellant has strenuously urged that as the Special Magistrate did not consider the entire evidence adduced by the prosecution, his order of acquittal should not be maintained. In that case, as many as 38 prosecution witnesses were examined. It is true that the learned Magistrate has not discussed the evidence of these witnesses in his judgment. He has however, taken into consideration certain circumstances which, according to his view,, raised a good deal of doubt about the prosecution case. He, on a con sideration of those circumstances along with the evidence of some of the prosecution witnesses, came to the conclusion that the pro secution story was not correct and the accused was the victim of a conspiracy. We have gone through the judgment of the learned Special Magistrate and we agree with him that those were very relevant circumstances to be taken into consideration in assessing the value of the prosecution evidence. In this case also, we feel that the order of acquittal on merits can he justified.

9. So far as Government Appeal No. 4 of 1958 is concerned, we may at the very outset remark that it is wholly misconceived. The only ground practically speaking which has been urged by the learned Advocate for the appellant is that the Sessions Judge had no jurisdiction to entertain the appeal in view of the decision of this Court in Hari Meah's case, referred to above, but we find that the accusations against the accused persons did not at all bring the case within the purview of Act X of 1956. The convic tion was under section 7 of the Land Customs Act in respect of some dry fish and green turmeric which was found in possession of the accused persons. The learned Sessions Judge held that there was no evidence to show that these goods came from any foreign territory. In the case of Abdul Mansur Rahman v. Crown (5DLR26), it has been held that in order to attract the provision of subsection (1), of section 7 of the Land Customs Act, it must be established that in respect of the goods for which an accused person is charged, the said goods passed out of any foreign territory. In this case, as we have already remarked, there is no such evidence. Therefore, it is difficult to see how the conviction of the accused persons under section 7 can be maintained. The one other act for which they were charged was the violation of a curfew order passed by the Deputy Commissioner, Sylhet, on 21‑12‑

56. It, however, appears that the curfew order was in respect of rice or paddy. No rice or paddy was found in the possession of the accused. Therefore, there was nothing to charge the accused persons under Act I of 1956 for violation of any notified order under the said Act. We, therefore, in this case also find that on merits this appeal also should fail.

10. The result, therefore, is that all the three appeals are dismissed. We direct that the accused respondents in these appeals be discharged from their bail bonds. ISPAHANI, J.‑I agree. K. B. A. Appeals dismissed.