P L D 1962 Dacca 81 (PLP)

These three rules arising out of three appeals disposed of by the learned Sessions Judge of Noakhali were directed against the orders of acquittal made in appeal by the learned Sessions Judge. The three petitioners, it appears, were convicted by a Special Magistrate, acting under Act X of 1956 (East Pakistan Food Special Courts Act) for certain malpractices and maldistribution of food‑stuffs in the Union.

2. They preferred three separate appeals against their afore said conviction. Before the learned Sessions Judge the point was taken that the Magistrate was acting without jurisdiction. The learned Sessions Judge accepted the said point but nevertheless entered into the merits of the appeals and also held that there was no evidence in the case to substantiate the charges made against the accused persons. Hence, the private complainant came for ward and obtained these rules against acquittal on the ground mainly that the learned Sessions Judge himself had no jurisdiction either to entertain or to hear the appeals as the order of a Magis trate appointed under Act X of 1956 was not appeal able at all.

3. In support of this contention reliance was placed on a decision of this Court in the case of Hari Meah v. The State (P L D 1958 Dacca 333), and since an appeal by special leave against the said decision of this Court was pending before the Supreme Court, these three matters were adjourned. The Supreme Court has now affirmed the said decision of this Court. It is, therefore, clear that the learned Sessions Judge had no jurisdiction to entertain these appeals.

4. The learned Advocate appearing in support of these rules has, therefore, argued that these rules should be made absolute and the orders of acquittal passed by the learned Sessions Judge should be set aside.

5. On behalf of the respondents in these matters it has, however, been argued that even though it must now be held that the learned Sessions Judge had no jurisdiction to entertain or hear these appeals this Court should not interfere with the order of acquittal passed by the learned Sessions Judge, since on merits there was no doubt that the respondents had been wrongly convict ed of the said alleged offences. It is urged before me that my power sitting as a Court of revision is purely discretionary power and there is abundant authority for saying that even where valid grounds for revision exist, the Court may refuse to interfere, if it finds that substantial justice has been done, even though by following a wrong procedure. I have been taken through q the judgment of the learned Sessions Judge and the learned Magis trate and it does appear to me that there is a great deal of substance in the contention put forward on behalf of the respondents in these matters.

6. The Magistrate concerned tried the offence summarily and made an extremely cursory examination of the evidence in the case. The alleged mal‑practices and mal‑distribution consisted of (1) the preparation of a faulty priority list in which many actually needy persons had been left out and (2) the withdrawal of excess rations by some ration‑cardholders.

7. The accused persons were the President, Vice‑President and the Secretary of the Union Food Committee. The only reason that the learned Magistrate gave for finding them guilty was that the Secretary of the Committee had apparently not taken all the members of the Committee into confidence in preparing the priority lists but at the same time he himself noticed that there was some truth in the defence contention that the list was prepared in a hurry under duress in respect of a very big Union which was to a very large extent subject to erosion by a river and consequent shifting of the population from place to place. The impossibility of avoiding a certain amount of confusion was, therefore, accepted by the Magistrate. Nevertheless, he convicted the accused person.

8. The learned Sessions Judge, in my opinion, rightly considered that these factors should have been taken to go in favour of the defence rather than of the prosecution. The learned Sessions Judge has also analysed the evidence in the case and has come to the conclusion that the evidence adduced on the side of the prosecution does not disclose that any offence has been committed by the accused persons and, hence it would be extremely dangerous to convict them on such evidence.

9. Keeping these reasons in view, I feel that this is a case in which I would not interfere against the orders of acquittal even though such acquittals have been made by the Sessions Judge without jurisdiction. In the result, therefore, these rules are discharged. K. B. A. Rules discharged.