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Criminal Revision No. 132 of 1951, decided on 26th July, 1951

, Ss. 71, 148, 324‑Separate sentences for offences under Ss. 148 and 324 legal.

Since the amendment of the Criminal Procedure Code in 1923 by which the word "distinct" was deleted from section 35 of the Criminal Procedure Code, separate sentences for rioting and for hurt or grievous hurt, even where the common object of the unlawful assembly is to commit assault, are legal.

Fatiar Bap v. The King‑Emperor 31 C W N 691 ; Aftan Khan and others v. Israfil Khan 54 C W N 2 D R 311= P L R 1 Dacca 10 ref.

, Ss. 147, 352, 379‑Common object of entire assembly theft‑Common object of only four of the members of assembly also assault‑Assembly not riotous.

The common object of the entire assembly was theft, and if assault was a separate object of four of the members of the assembly only and was committed by them in prosecution of that object, it could not render the unlawful assembly riotous.

Meser Ali and K. Hossain, for Petitioners.

Sultanuddin Ahmed, Deputy Legal Remembrancer, for the Crown.

---This Rule was obtained by the petitioners calling on the District Magistrate of Faridpur to show cause why their convictions and sentences should not be set aside.

The petitioners entered into the disputed land when the complainant, who had grown paddy therein, was cutting it with his labourers, and protested. The complainant did not pay heed to the protest. The petitioners Nos. 1 to 4 then struck three of the complainant's men with katra and teta causing bleeding injuries. Then all the petitioners went away with the paddy in three boats of the complainant.

On the basis of these facts, the petitioner No. 1 has been convicted and sentenced to consecutive terms of imprisonment under section 148 and 326 of the Pakistan Penal Code and has been further convicted and sentenced under section 379 of the Code to pay a fine of Rs. 60 in default to rigorous imprison ment for a further period of one month. Petitioners Nos. 2 to 4 have been convicted and concurrently sentenced to rigorous im prisonment under sections 148, 324 and 379 of the Pakistan Penal Code. Petitioners Nos. 5 to 11 have been convicted and concurrently sentenced to rigorous imprisonment for a term of one month each under sections 147 and 379 of the Pakistan Penal Code.

Mr. Meser Ali, the learned counsel for petitioners, con tends that separate sentences for rioting and other offences are hit by section 71 of the Penal Code. His argument is that it is illegal to pass separate sentences for rioting and for the offence which is stated to be the common object of the unlawful assembly. This is an old question and is covered by precedents. In Fatiar Bap v. The King‑Emperor 31 C W N 661, it has been held that since the amendment of the Criminal Procedure Code in 1923 by which the word "distinct" was deleted from section 35 of the Criminal Procedure Code, separate sentences for rioting and for hurt or grievous hurt, even where the common object of the unlawful assembly is to commit assault, are legal. The same view has been taken in this Court in the case of Aftan Khan and others v. Israfil Khan 54 C W N 2 D R 311‑P L R 1 Dacca 10, to which I was a party. This contention of Mr. Meser Ali, the learned counsel for the petitioners, has, therefore, no substance.

But in view of the manner in which the charges were framed, we think that conviction under section 147 and 148 should not be sustained. In the charge under section 147 against the petitioners Nos. 5 to 7 the common object was stated to have been theft, while in the charge under section 148 of the Penal Code against the petitioners Nos. 1 to 4 the common object has been stated to have been assault and theft. One possible implication. of these two charges is that the assault was separate and distinct object of only four members of the assembly, namely, petitioners Nos. 1 to 4, and was beyond the contemplation of others. The common object of the entire assembly was theft, and if assault was a separate object of the four of the members of the assembly only and was committed by them in prosecution of that object, it could not render the unlawful assembly riotous.

In these circumstances, we set aside the sentences under sections 147 and 148 of the Pakistan Penal Code and after the convictions from those sections to sections 143 and 144 of the Code, respectively. We do not think that in the interest of justice any sentence is called for under these sections. The convictions and sentences under sections 326, 324 and 379 of the Pakistan Penal Code are upheld. The petitioners will now surrender to their bail and serve out the remainder of their sentences or pay the fine, as the case may be. The Rule is disposed of in these terms.

---‑I agree.

A. H. Order accordingly

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