JUDGMENT

Mir Ahmad, J C - According to Rule 10, N.-W.P.P. Entertainment Duty Rules, 1938, cinema tickets which were sold and recovered on 15th January 1944 in the Capitol Cinema should have been destroyed on 16th January 1944. Excise Sub-Inspector Khan Bahadur Khan, however, discovered on 17th January 1944 that they were lying in the office. L. Ishar Dass Sahni, the proprietor of the Capitol Cinema, was therefore sent up under Section 8(2), N.-W.F.P. Entertainment Duty Act (11 of 1937). He was tried and convicted on the summary side by Capt. Howson, City Magistrate, Peshawar, who is also District Excise Officer. The Magistrate fined him Rs. 500. The convict presented an appeal to the Sessions Court at Peshawar. One of the points taken by his counsel before the Additional Sessions Judge was that the City Magistrate being the District Excise Officer could not try the case under Section 556, Criminal P. C. This plea and the other legal pleas put forward by the appellant did not find favour with the Judge, who dismissed the appeal. The convict has come up on revision to this Court. As there was a mention in the judgment of the trial Court that the accused had been warned several times previously, I directed that the files relating to those cases should be put up to me. The departmental file relating to complaints against the proprietors of cinemas in Peshawar District has been put up to me by the Excise Department. On p. 61 of this file is the report made by Khan Bahadur Khan regarding the discovery of tickets on 17th January 1944 in Capitol Cinema. The District Inspector of Excise has made the following observations on this report:

An excellent piece of detection. The offence is really serious, because it shows that there is a possibility of re-sale of tickets. May a regular complaint be lodged as usual?

2. This endorsement is marked to the District Excise Officer. On this the remarks of the Dis-trict Excise Officer run thus: "I should say yes definitely." I was not sure of the initials under this order. I therefore sent for Khan Bahadur Khan, Excise Sub-Inspector. He told me that it was the signature of Capt. Howson, the City Magistrate, who tried the accused later on. On the margin there is a note that the accused was fined Rs. 500 by the City Magistrate, Peshawar. Now Section 556, Criminal P.C., runs as under:

No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

3. The illustration to that section is given below:

A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise laws. A is disqualified from trying this case as a Magistrate.

4. It is obvious from the illustration that by virtue of this section Capt. Howson, the District Excise Officer, could not try the case when he himself had directed that the accused should be prosecuted. There is plenty of authority to support this proposition. It was incumbent on Capt. Howson to obtain the previous permission of the Court to which an appeal lay from his Court before he tried the case. There is nothing to show that he had done so. . I accept the petition and set aside the conviction and sentThe trial is, therefore, vitiated and the conviction cannot standence. The fine, if paid, should be refunded.