P L D 1967 Dacca 166 (PLP)

This is the ratio decidendi of the case. It was held that no appeal was competent under section 408 of the Code of Criminal Procedure because the Special Magistrate who tried the offence was not a Magistrate of the First Class under the said Code. Muhammad Munir, C. J., has further observed:‑ "A Special Magistrate is appointed under section 4 of the Act which gives to the Provincial Government the power to appoint as many Special Magistrates as it may be necessary to try and punish offences under the Act. A Special Magis trate is not a First Class Magistrate appointed under the Code of Criminal Procedure and the powers that he exercises are substantially in excess of those possessed by a First Class Magistrate inasmuch as a Special Magistrate may sentence a person to 3 years' imprisonment and impose any amount of fine." Mr. Kamal Hossain has strenuously contended that the fact that the Special Magistrate has been given powers far in excess of those enjoyed by a Magistrate of the First Class is the ratio of the decision of the Supreme Court in the aforesaid case. We do not think that the higher powers exercised by a Magistrate of the First Class was the ratio decidendi in the case. The decisive factor was that the accused was tried by a Special Magistrate as a special Court and not by a Magistrate of first class. It leaves no room for any doubt that had the trial been held by a Magistrate of first class the decision would have been that there was a right of appeal under section 408 of the Code. The point, as has been observed by Muhammad Munir, C. J., himself, was whether the trial had been held by a Magistrate of the first class (who con stitutes a Court under the Code of Criminal Procedure) or by a special kind of tribunal specifically brought into existence by the Act. Since the trial was not by a Magistrate of the first class as contemplated by section 408 of the Code, it was held that no appeal would lie. In our opinion, the vital question is, whether the Court which has tried the offence can be described as a Court which comes within the purview of section 408 of the Code. If so, an appeal would lie notwithstanding higher powers conferred upon such a Court by a special statute: The trial Court must be a Court within the meaning of section

408. This view finds support in a decision of this Court in the case of Rajab Ali Bepari v. Province of East Pakistan (P L D 1958 Dacca 552), which arose from a trial under the East Pakistan Control of Essential Commodities Act (I of 1956) and East Pakistan Food (Special Courts) Ordinance (XV of 1956). Under the said Act I of 1956 offences under it were triable by any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in section 260 (1) of the Code of Criminal Procedure, on application in that behalf by the prosecution. In fact, the trial was held by such a Magistrate appointed under the Code of Criminal Procedure. The question that arose was, whether an appeal would lie from the conviction and sentence imposed by such a Magistrate. This Court distinguished its earlier decision in the case of Hari Meah v. The State (P L D 1958 Dacca 333). It was pointed out that in Hari Meah's case, the trial was held by a Special Magistrate and not by a Magistrate within the meaning of section

408. In the case which was then under consideration the trial, in fact, was held by a Magistrate under the Code as mentioned in section 408 thereof. In the judgment that was pronounced in Rajab Ali's case, it was thus observed: " Offences under the said Act I of 1956 were made triable by any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in section 260 (1) of the Code of Criminal Procedure but only on an application in that behalf being made by the prosecution. Further powers were also given to a Magistrate trying such cases to impose a higher punishment than that admissible under the Code of Criminal Procedure. The Magistrate or Bench of Magistrates referred to in the said Act I of 1956 being Magistrates appointed under the Code of Criminal Procedure, their order would have been appealable and revisable under the said Code. The Magistrates appointed under Ordinance XV of 1956, however,, being not Magistrates under the Code of Criminal Procedure and there being no provision for appeal or revision in the said Ordinance XV of 1956, no appeal or revision, as held by this Court in the case of Hari Meah v. The State, would be available to persons aggrieved by orders of such Magistrates. " In the case of Abdul Hannan v. Government of East Pakistan (P L D 1959 Dacca 279) which arose out of a conviction under the provisions of the Prevention of Smuggling Act (LVIII of 1952), this Court has observed as follows: "In the present case, since the trial was not by a Special Magistrate appointed under Ordinance XVIII of 1957 but by a Magistrate of the First Class appointed under the Code of Criminal Procedure, specially empowered to impose a higher sentence than that which a Magistrate of the First Class can impose under the Code of Criminal Procedure, can it be said that no appeal or revision lay against orders passed by such a Magistrate. The learned Advocate for the petitioner faced with this difficulty contended that he was misled into making this application by reason of the fact that the order‑sheet of the Magistrate throughout described the Magistrate as a Special Magistrate and thereby he was led to believe that he purported to act as a Special Magistrate appointed under Ordinance XVIII of 1957 and not as a Magistrate contemplated within the meaning of Act 58 of 1952. If he had been a Special Magistrate appointed under the Ordinance, then by reason of the decision of a Division Bench of this Court, to which one of us was a party, . . . . . . . there would have been no appeal or revision against the order of such a Magistrate. It cannot be said that there was no scope at all for such misconception but the position having now been clarified on behalf of the State, it is clear that the Magistrate‑ concerned was a Magistrate of the First Class appointed under the Code of Criminal Procedure and duly empowered under section 260 of the said Code, as also specifically empowered under Act 58 of 1952. Therefore, it cannot be said that no appeal or revision lay against his order. The decision in the case above referred to (Hari Meah v. The State) only says that where a Magistrate is a Magistrate appointed under a special statute and not under the Code of Criminal Procedure and the special statute does not expressly give the right of appeal or revision, then no appeal or revision lies from the decision of such a Magistrate appointed under such a special statute." In the case of Jafar Khan v. The State (P L D 1959 Dacca 68) which also arose out of a conviction under the Prevention of Smuggling Act (LVIII of 1952), the facts were as follows: The petitioner, Jafar Ali, was tried by one Mr. A. M. M. Khan, describing himself as Special Magistrate of Army Camp, Comilla. He convicted the petitioner under section 4 of Act LVIII of 1952 on the 26th of December 1957, and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 2,000, in default, to rigorous imprisonment for six months more and also ordered that he should receive five lashes. The quantity of different kinds of soda seized from his shop and house was ordered to be con fiscated to Government. It was held that an appeal would lie from the conviction and sentences imposed by the "Special Magistrate". We would like to add that nothing turns on a mere description of a Court as a "Special Magistrate". The crux of the matter is that in order to decide that an appeal would lie under section 408 of the Code of Criminal Procedure one has to see whether it is a kind of Court specified in that section. In Hari Meah's case as we have seen above, the decisive point was that the trial Court under a special enactment which had created a special tribunal to try a special offence was not a Court within the hierarchy of Courts specified in section

408. It was found that the forum created by the relevant Act was a Special Court with a distinct name and, furthermore, that it was also clothed with special powers. In the case of Lamba v. The State (12 D L R 407), the petitioners were tried by a Magistrate of the first class and convicted and sentenced to rigorous imprisonment for two months each under section 7 (1) (c) (2) and (3) of the Land Customs Act. They preferred an appeal and the Additional Sessions Judge of Sylhet purporting to follow Hari Meah's case held that the appeal presented to him was incompetent because petitioners were tried by a "Special Magistrate". In deciding a revisional application against the aforesaid order, this Court observed: "Under section 14 of the Code of Criminal Procedure the Provincial Government may confer upon any person all or any of the powers conferred or conferable by or under the said Code on a Magistrate of the First, Second or Third Class, in respect of particular cases or to a particular class or particular classes of cases or as regards cases generally in any local area, and such persons are called Special Magistrates. It has not been shown to us on behalf of the State that the present Magistrate was appointed as Special Magistrate to try offences as Special Magistrate under the Land Customs Act. Even if he was so appointed, we do not see why the provisions of the Code of Criminal Procedure in regard to appeals would not apply." It was held that an appeal would lie under the Code of Criminal Procedure. In the present case the trial was held by a Magistrate of the First Class, a Court which is constituted under the Code of Criminal Procedure within the meaning of section 408 thereof. The fact that the Magistrate has been given certain special power of imposing heavier sentences of fine makes no difference whatsoever in deciding as to whether an appeal would, be competent under the said section

408. The crucial fact is that the trial has been held by a Magistrate of the first class a kind of Court L which comes within the purview of section

408. The contention of Mr. Kamal Hossain must, therefore, be rejected. Learned counsel has next argued that no revision would lie under section 439 of the Code of Criminal Procedure. The short answer to this point is that having held that an appeal was competent, it must necessarily follow that the revisional jurisdic tion of this Court under section 439 would be attracted to the present case. The last point pressed by Mr. Kamal Hossain is, that, even if a revisional application lies, the petitioner has not been able to make out any case calling for an interference by this Court, in its revisional jurisdiction, with the conviction of petitioner by the aforesaid Magistrate and the sentence which has been passed on her. He has argued that even an addition to an existing structure or any alteration effected therein would require the previous sanction of the relevant authority under the said Act. Having regard to the language of section 3 (1) of the Act as amended by the Ordinance of 1960, the proposition enunciated above by Mr. Kamal Hossain appears to be correct. But, has any case of addition or alteration been made out? We have noticed the provisions of section 3 (1) of the Act as amended by the Ordinance and have observed that its provisions are very wide. If any repair is effected in an existing premises, which is more than normal, the previous sanction of the relevant authority is necessary for such repairing. If a building is constructed or re‑constructed, such sanction would be required. Again, if it is altered or if any addition is made to it, a similar sanction would be necessary. It is not the case of the prosecution that petitioner has constructed or re‑constructed a building. The utmost that can be said on its behalf is, that petitioner, according to the prosecution, is guilty of making addition or alteration to her building by erecting a new staircase or by altering the structure of an existing staircase. The charge g levelled against the petitioner is vague and misleading. Mr. Farid Ahmad has argued that apart from the fact that on the merits of the case petitioner is entitled to an acquittal, the charge itself has materially prejudiced her. In the present case seven witnesses were examined by the prosecution and four persons have deposed on behalf of the accused‑petitioner. If it was merely a question of appraisal of evidence, we would have been reluctant to interfere with the concurrent findings of the Courts below. The accusation against the petitioner has been set out in her examination, under section 342 of the Code of Criminal Procedure which runs thus "On 7‑6‑62 last you constructed a staircase measuring 16' x 10" x 2'‑6" attached to the three‑storeyed puccu. building leading to the second floor of the said building on 19, Nazir Ahmed Chowdhury Road within P. S. Kotwali without permission of the Authorised Officer and thereby you have committed an offence under section 12 (1) of the E. B. B. C. Act. What .is your defence?" Thus, the charge against her was that she had constructed a new staircase. The defence was that she had merely repaired an exist ing staircase and had not built a new one. In this context, what stares one on the face is the existence of two rooms on the second floor. They postulate the existence of a staircase to effect an entry into the second floor. One of the prosecution witnesses, namely, P. W. 5 Md. Younus, has given evidence to the following effect: "On the top of the roof (there are) two sooms 26' x 24' (in dimension). No staircase is mentioned in the assessment register." The non‑inclusion of the staircase in the assessment register does not necessarily mean that there was no staircase for entry into the second floor. The existence of two rooms on the second floor raises a presumption that there must have been a ‑staircase leading to the second floor. It is not the prosecution case that the room in the second floor, as mentioned above, were constructed contemporaneously. P. W. 1 Mustafizur Rehman has stated that there was another staircase leading to the second floor, which was demolished. This would amount to a vital evidence against the petitioner, on a properly framed charge, but the trying Magistrate has described the aforesaid statement to be the result of an enquiry made by the witness. If so, the said statement would be inadmissible as being hearsay 'evidence. The witness himself does not say that he gathered from an enquiry that there was another staircase leading to the second floor, which was damaged. From the evidence which has been led by parties to the trial, it is not clear whether a new staircase was built by the petitioner or whether an existing staircase was demolished and rebuilt, or whether there was an attempt to repair a staircase which had already existed. It further appears that three pillars, which are said to support the staircase have imported further confusion in the prosecution case. It is important to get definite evidence on the point whether the said pillars have been newly‑built or re‑built or merely repaired. If no such pillars had previously existed, they would, probably, amount to addition to the building or alteration in respect thereof. The pillars appear to be the cause of annoyance to neighbours but nothing has been definitely said about their origin. Section 3 (1) of the Act, as quoted above, speaks of construc tion or re‑construction of a building and not of an adjunct thereto. It is not alleged by the prosecution that petitioner has constructed or re‑constructed a building. The entire prosecution case rests on the said staircase which is stated to be supported by three pillars. The prosecution case must, therefore, of necessity, be that of addi tion or alteration to the building belonging to the petitioner. It is not clear whether the staircase was reconstructed or whether it was altogether a fresh one. It is also not clear whether the rooms on the second floor existed prior to the erection of the said staircase. P, W. 1 has spoken of a pre‑existing staircase leading to the second floor which has been demolished. The manner in which the trying Magistrate has dealt with this piece of evidence leaves one in doubt whether it would be hit by the hearsay rule. The witness himself has not said that his evidence, as stated above, was bases on an enquiry made by him and that he had no personal knowledge in this behalf. Furthermore, it is difficult to decide whether, previous to the erection of the present staircase, there were pillars to support it. We feel that the prosecution has not confronted the petitioner with a clear and definite case. We uphold the contention of Mr. Farid Ahmad that the petitioner has been materially prejudiced by the manner in which her prosecution was conducted. The conviction and the sentence imposed upon her cannot, P therefore, be sustained. "We, therefore, make the Rule absolute and set aside the conviction of the petitioner and the sentence which has been passed on her. In view of the nature of the evidence in this case, we direct that this case be remanded back to the trial Court for a retrial of the petitioner in accordance with law. In the course of the arguments that were addressed to us, we took the impression that this matter can and may be amicably settled, in which case there need be no retrial. The pillars support ing the staircase are alleged to have caused inconvenience to the neighbours. Something may be done by the petitioner to mitigate the inconvenience. On some such measure, as indicated above, she may yet obtain an ex post facto sanction for the staircase. In such an eventuality, there would hardly be any good reason to prosecute her any further although, technically speaking, she may be guilty of violation of the law at the time when she commenced to erect the said staircase, if what she has done is proved to be an addition or alteration within the meaning of section 3 (1) of the amended Act. We can quite understand the anxiety of the Chittagong Development Authority to obtain a decision from this Court on points of law which are involved in a prosecution under the Act and hope that we have given enough guidance on issues which are material to this case. We leave the parties to exercise their better judgment as to whether there would be a compromise of this case. A settlement would certainly be a happy ending to it. We now turn to the Criminal Revision Case No. 78 of 1965 which also arises out of a conviction under section 12 (1) of the East Bengal Building Construction Act, 1952. The prosecution of the opposite‑party in this case relates to a period prior to the amending Ordinance of 1960. Section 3(1) of the Act, prior to the Ordinance of 1960, ran thus: "Notwithstanding anything contained in any other law for the time being in force, or in any agreement, no person shall, without the previous sanction of an Authorised Officer, con struct any building or excavate any tank within the area to which this Act applies ; and such sanction shall be subject to such terms and conditions as the Authorised Officer may think fit to impose." The aforesaid provisions merely enjoined previous sanction of an Authorised Officer in case of construction of a building. No such sanction was required for alteration or addition to a building. We need not say anything further than this that there is a distinction between construction, re‑construction, alteration and addition. The distinction is well understood, although in extreme cases the dividing line, is indistinguishable. In this case, the admitted fact is that the first floor, namely, the second storey was demolished inasmuch as the second storey was considered to be dangerous premises. In the course of demolishing the first floor the ground floor, occupied by the opposite‑party, was damaged. The opposite‑party's case is that he has merely put back the ground floor to its former habitable condition. His case is that he has not constructed a building, but has merely repaired an existing structure. In this case too, a number of witnesses were examined on behalf of the prosecution as well as by the defence. The trial Court, upon its appreciation of the evidence, convicted the accused, who preferred 'an appeal against such conviction. The Appellate Court below found it difficult to accept the prosecution evidence in preference to that led by the defence. He accepted the defence version of the case and acquitted the accused. Hence this revisional application. On the merits of this case, we do not think we will be justified in interfering with the order of acquittal passed by the Appellate Court below as a final Court of fact. The said Court has given good reasons as to why it has preferred to rely upon the evidence adduced on behalf of the accused in preference to that which has been led on behalf of the prosecution. On such assessment of evidence the accused had been acquitted and we do not think that any case has been made which calls for our interference in the exercise of our revisional jurisdiction. Mr. Abdur Rahman Chowdhury has contended that no appeal lies from a conviction under the aforesaid Act. The reasons upon which we have negatived such a contention in the previous case would apply with greater force to the present case because section 13 of the Act, prior to the Ordinance of 1960, read thus: "No Court shall take cognizance of any offence punishable under this Act except with the previous sanction of the Provincial Government." It is clear that the trial of offences under the Act has been left to the normal hierarchy of Courts created under the Code of Criminal Procedure.' Mr. Abdur Rahman Chowdhury has argued that offences under the Act, as it stood at the relevant time, could be tried by any Magistrate, who might be a Magistrate of the Third Class. He has next drawn our attention to the Schedule of the Criminal Procedure Code, namely, Schedule 11, tabular statement of the offences. Under the heading "Offences against other laws it is provided that if an offence is punishable with imprisonment for less than 1 year, or with fine only, any Magistrate can try. He has next pointed to the following provisions of section 12 (1) of the Act, which reads thus: "12. (1) Whoever commits any offence by‑ "(a) contravening the provision of section 3, or "(b) failing to comply with any direction given to him by an Authorised Officer under section 4 or subsection (1) of section 5, "shall on conviction before a Court of competent jurisdiction, be punishable with a fine which may extend to five hundred rupees, or in default, with simple imprisonment which may extend up to six months ; . . . ." It has been submitted that there is no specified provision of imposition of sentence of imprisonment simplicitor. All that has been provided is that a period of six months' simple imprison ment may be imposed in default of payment of fine which is the only sentence that can be passed in consequence of a conviction under the Act. He has argued that the aforesaid provision is a departure from the provisions of the Code of Criminal Procedure. The fallacy of this argument lies in its disregard of the fact that under the provisions of the Code, as set out above, a trial with regard to an offence under the Act could be held by any Magistrate even when only a sentence of fine could be inflicted upon a conviction of the accused. This argument has no substance, particularly, in view of the fact that the trial in this case was held by a Court' which has been specifically mentioned in section 408 of the Code of Criminal Procedure. Furthermore, it would be seen that the sentence was one which could be passed, under the Code of Criminal Procedure, by a Magistrate of the First Class who had tried the case. There can be no question that an appeal would lie under section 408 of the Code from the conviction of the accused and the sentence which was awarded against him, in the circumstances stated above. Mr. Abdur Rahman Chowdhury has further contended that in respect of this case a revisional application under section 439 of the said Code would lie although, according to him, an appeal was incompetent. He has assailed the acquittal of the accused by the Appellate Court below on the ground that an appeal was incompetent in the present case. He has sought to justify this revi sional application filed by his client by saying that this Court was empowered, even in the present case, to exercise its revisional jurisdiction under section 439 of the Code notwithstanding the fact that, according to his contention, no appeal under section 408 was permissible. We have already held that an appeal competent under section 40 of the Code. In all cases where an appeal is competent under section 408 of the Code, the revisional jurisdiction of this Court under section 439 of the Code can undoubtedly be exercised. Having held that an appeal was competent, it necessarily follows that we can entertain this revisional application. Although we hold that this application is not incompetent, we. direct that the Rule obtained by the petitioner be discharged inasmuch as we have held above that we have no reason to interfere with the order ,,passed by the Appellate Court below.' We may observe in conclusion, that it can be argued that this Court is competent to exercise its revisional jurisdiction under section 439 of the Code even in respect of orders from which no appeal would lie under section 408 of the Code. Section 408 specifies, in express terms, the Courts from whose decision an appeal would lie. Under section 439 this Court can exercise its revisional jurisdiction in respect of any proceeding, which comes to its knowledge. The proceeding must; of necessity, be with regard to a criminal Court recognised by section 6 of the Code or Criminal Procedure. Section 6 of the Code of Criminal Procedure takes cognisance of a criminal Court constituted by law other than the Code. The Supreme Court of Pakistan in Hari Meah's case has merely held; under the facts and circum stances of that case, that an appeal under section 408 of the Code would not lie and the decision goes no further than that. The Revisional jurisdiction of the High Court under section 439 of the Code is much wider. We, however, prefer not to give any final opinion on this point because no such decision is called for. ABDULLA, J.‑I agree. S. Q. Order accordingly.