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Criminal Appeal No. 129 of 1964, decided on 17th July 1967.

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---Practice and procedure‑Counter cases started over same occurrence‑Simultaneous disposal of both by same Court necessary.

Ss. 141, 147 & 148 read with S. 99‑Unlawful assembly‑No party having exclusive possession and both entitled to cut grass from land‑Both parties anticipating resistance, going fully armed to establish their supremacy upon common right of enjoyment of land‑Fight ensuing resulting in death of one of complainant party and injuries on several others on both sides‑Accused party in circumstances, held, went to land to exercise their right and not to dispossess complainant party Assembly exercising bona fide right‑Not unlawful‑Nor does question of private defence o/' person or property arise, in circumstances.

Ss. 141, 147 & 148 Rloting‑Corrurton object‑Statement of such object in charge‑sheet must agree in essential particulars with common object as establish ed by evidence‑Common object a; stated in charge‑sheet failing-- Conviction for rioting not maintainable‑Each party responsible for Individual acts.

Fitbaran Singh and others v. Emperor A I R 1918 Pat. 148 and Silajit Mahto v. Emperor 36 Cal. 865 ref.

Syed Ali Beparti v. Nibaran Mollah and others P L D 1982 S C 502 fol.

Hafizullah for Appellants.

Abdul Matin Khan Choudhury for the State.

‑Appellants Nos. 1 to 5, namely, Abul Hussain alias Pagal, Abdul Gafur, Ramjan, Jamadar and Tarifulla, have been convicted under section 148 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for nine months and appellants Nos. 6 to 10, namely, Abdus Sattar, Tamij, Plan, Charu and Farazulla have been convicted under section 147 of the Penal Code and sentenced to suffer rigorous imprisonment for six months. The appellant No. 1 Abul Hussain has further been convicted under section 304, Part II of the Pakistan Penal Code and sentenced to suffer rigorous imprison ment for five years and the appellants Nos. 2 to 5, namely, Abdul Gafur, Ramjan, Jamadar and Tarifulla have again been convicted under section 324 of the Pakistan Penal Code, Nos. 2 to 4 having been sentenced to suffer rigorous imprisonment for nine months and No. 5 having been given rigorous imprisonment for one year on that count by the learned Assistant Sessions Judge, 1st Court. Sylhet with a direction that the sentences of appellants Nos. 1 to 5 shall run concurrently.

The facts and circumstances are that Mouzas Raghunathpur and Simulbag are two contiguous villages intervened by the dead Surma river within Sunamganj police station in the district of Sylhet. Simulbag is situated on the west of the intervening Surma river. There is a graveyard in Mouza Raghunathpur covering about 9 kedars of land to the west of the village just close to the houses of the complainant party. Binna Chan (that ching grass) grows on the graveyard which the people of Raghunathpur Mouza appropriate. People of Simulbag have no right to this graveyard. The Chha grass of the graveyard is cut in between Magh and Chaitra and in the other part of the year from Chaitra to Kartic people graze the cattle on it. In Jaistha the Chhan grows upto the waist height.

It is alleged that on the 24th Jaistha, corresponding to 8‑6‑63 at about or 7‑30 a.m. about 20 or 25 people of Mouza Simulbag came and started cutting the Chhan of the graveyard. The deceased Meherbux Ullah along wish P. Ws. Abdul Barik, Monfar Ali, Maharam Ali, Abdul Hakim and Sonafar Ali went to the graveyard and forbade them from cutting grass whereupon accused Abdus Sattar ordered saying "(in Bengali)" "Beat the brother‑in‑law". As soon as the order was passed all the accused who were armed with various weapons started assaulting the members of the complainant party mercilessly. Accused Abul Hussain picked up a Teta Fala from the Chhan grass and struck Meherbux Ullah on his belly. Receiving the injury Meherbux Ullah bent down then accused Abdus Sattar gave him two lathi blows below his loins and as a result Meherbux Ullah fell down. Then accused Ramzan struck P. W. Abdul Barik with a Jetha on his left forearm, accused Abdul Gafur struck him with a Dao on his right waist and accused Jamadar stabbed hire on his belly with a Kuchasala; accused Tarifulla struck Monfar Ali with a panch Katia Attar, accused Khurshed stabbed him on his right leg with a Fal and accused Tamij stabbed him in his right hand with a Fal; accused Iskandar struck P. W. Maharani Ali on his belly with a Kuchasala and accused Palan stabbed him with a Kueh asala on his left thigh; accused Charu struck P. W. Abdul Hakim his right hand with a Kuchasala, accused Abdur Razzaque struck him on his head with a lathi and accused Tamij struck him on his back with a lathi. When the assaults were going on, some one raised cry that Meherbux Ullah had been murdered and at this the accused ran away towards Simulbag.

The injured persons were then taken to Sunamganj Hospital and a Doctor at Sunamganj extracted the pointed iron portion of the Teta Fala stuck to the belly of deceased Meherbux Ullah and the Panch Katia Attar struck to the body of P. W. Monfar Ali.

A First Information Report was accordingly lodged by P. W. 1 Shamuz Ali with the police at Sunamganj police station. The local police took up investigation, seized the alamata, examined the witnesses and submitted charge sheet, in the case.

The condition of injured Meherbux Ullah having been found precarious in the Hospital a requisition was sent for a Magis trate to record his dying declaration and accordingly his dying declaration was recorded by a first class Magistrate in presence of the Doctor in the Sunamganj Hospital. The injured Meherbux Ullah died in the Hospital 7 days after the occurrence.

A preliminary enquiry having been completed by a first class Magistrate at Sunamganj the accused appellants along with others were committed to the Court of Sessions to meet the various charges under sections 148/324/304/304/109, P. P. C. as indicated earlier.

The defence denied the whole alleged occurrence. The case of the defence, briefly, was that on the day previous to the occurrence two heads of cattle belonging to the complainant party were caught by accused Fazar and Azhar and on the date of occurrence when they were taking those cattle to the pond, the complainant party consisting of about 30 or 40 people all of a sudden chased the said accused Fazar and Azhar to the courtyard of accused Sattar and there they assaulted accused Abul Hussain, Fazarulla, Ramjan, Jamadar and Sattar and on the latter defending themselves they further assaulted and injured them with Dao, Kuchasala and other such weapons. The defence alleged that the prosecution case is entirely false and that the complainant party themselves have reaped some Chhan grass and trampled the Chhan grass around the graveyard to make a show of a place of occurrence there. The accused also asserted that in the line of the defence set up above, accused Abdus Sattar started a complaint case before the Sub‑Divisional Magistrate, Sunamganj on I0‑6‑63 against the complainant party on the same occurrence but the counter case has been stayed pending the disposal of the present case.

The trial was held with the aid of three assessors. The assessors found accused Abul Hussain and Abdus Sattar guilty under section 148 and the others guilty under section 147 of the Penal Code. They also found accused Abul Hussain alias Pagal guilty under section 304, Part Ii of the Pakistan Penal Code and the other accused not guilty under section 324 of the Pakistan Penal Code.

17 P. Ws. and 1 D. W. were examined in the case and the learned Judge on appraisal of the evidence convicted and sentenced the appellants as stated above.

Defence has challenged the place and manner of occurrence as alleged by the prosecution. They also have brought a counter case as is evident from the complaint petition Exh. A. It is well settled that the two counter‑cases started over the same occurrence should be disposed of simultaneously by the same Court but curiously enough the counter‑case started by accused Abdus Sattar on 10‑6‑63 has been stayed pending the disposal of the present case. What has happened with the counter‑case thereafter is not known to us and the learned Advocate appearing for the accused appellants could not give any information about the same. Trial of the present case having been concluded long ago it may be presumed that the counter‑case has already been disposed of in the mean time and it is no more pending in Court in any form.

P. W. 1 Shamuz Ali is the informant and he has proved the prosecution case recorded in the F. 1. R. Exh. 1. He is a man of Mouza Raghunathpur. He has stated that there is a graveyard in Raghunathpur covering about 9 keders of land to the west of the village just contiguous to the houses of the complainant party. Chhan grass (thatching grass) grows on this graveyard and the people of Raghunathpur appropriate it. People of Mouza Simulbag situated on the west of Raghunathpur intervened by the dead Surma River have no right to this grave yard. The Chhan of the graveyard is cut in between Magh and Chaitra and in the other part of the year from Chaitra to Kartic people graze cattle on it. In Jaisiha the Chhan grows up to the waist height, On the date of occurrence at about 7 or 7‑30 a.m. all the accused persons came there armed and started cutting the Chhan grass from the graveyard. He (the witness) in the company of the deceased Mehar Buxulla and P. Ws. Abdul Barik, Moharam Ali, Monafar Ali and Abdul Hakim went there and forbade them from cutting grass to which accused Abdus Sattar passed orders and all the accused who were armed with various weapons assaulted mercilessly the members of the complainant party who were unarmed.

This evidence of P. W. 1 has been substantially corroborated by P. W. 2 Abdul Barik, P. W. 3 Monfar Ali, P. W. 4 Maharani Ali and P. W. 5 Abdul Hakim who were victims of the occurrence. P. W. 6 Sonafor Ali, P. W. 8 Hashid Ullah, P. W. 9 Siddique Ah, P. W. 10 Abdur Rahman and P. W. 15 Md. Watir Ali also saw the occurrence and supported the prosecution case. The occurrence has thus been proved by sufficient evidence.

The eye‑witnesses, referred to above, have been subjected to severe cross‑examination by the defence but they stood the test quite well. Though there are some inconsistencies here and there on minor details, their evidence is otherwise uniform on salient points and there is nothing on record to disbelieve their evidence or to impeach the veracity of these witnesses. It is their consistent case that the occurrence took place in the graveyard over cutting of Chhan grass and it has been established by the convincing evidence of the P. Ws. The Investigating Officer, P. W. 17 who visited the place of occurrence found the Chhan cut in a haphazard way. Though, due to heavy rain, he could not get marks of blood there still he found marks of struggle, some brickbats and small bamboo pieces on the spot. He also noticed signs of trampling over the standing Chhan grass in the graveyard due to passing of people over them. In this connection, the defence suggestion that the occurrence took place in the courtyard of Abdus Sattar over taking of heads of cattle to the pound by Azahar and Fazarulla, has been stoutly denied by the witnesses. There is not an iota of evidence on record to support the defence plea. The claim of the accused that the occurrence took place in the courtyard of accused Abdus Sattar and not in graveyard has not at all been substantiated, D. W. 1 is a formal witness in the case. The petition of complainant, Exh. A was filed before the Sub‑Divisional Officer, Sunamganj on the third day of occurrence. We, therefore, hold that the occurrence took place in the graveyard as alleged by the prosecution.

P. W. 1 has deposed to the effect that as soon as the com plainant party prohibited the accused to cut the Chhan grass, the accused persons brought out various sorts of weapons from the thatch filed and at the order of accused Abdus Sattar, accused Abul Hussain alias Pagal inflicted a thrust on the belly of deceased Meher Bux Ullah with a Teta Fala (a kind of fish spear) and accused Sattar gave him two lathi blows below his loins. Then accused Ramzan struck P. W. Abdul Barik with a Jatha (a kind of spear) on his left forearm, accused Abdul Gafur struck hi with a Dao on his right wrist and accused Jamadar stabbed him with a Kocha Sola (many pronged fish spear) on his belly below the chest. Accused Tarifulla struck P. W. Monfar Ali with Pack Katia Attor (five pronged spear), accused Khurshed Ali stabbed him with a Phal (a kind of spear) on his right leg and accused Tamiz stabbed him with a Phala on his right hand. Accused Iskandar struck P. W. Maharam Ali with a Kocha Sola on the belly and accused palan stabbed him with a Kocha Sola on his left thumb. Accused Charu struck P. W. Abdul Hakim on his right hand with a Kocha Sola, accused Abdur Razzaque struck him on his hand with a lathi and accused Wahedullah struck him on his back with a lathi. The injured witnesses P. Ws. 2, 3, 4 and 5 have corroborated P. W. I in this respect. P. Ws. 6, 8, 9, 10 and 15 also have corroborated him. The evidence of Doctor P. W. 16 who examined the accused Meher Bux Ullah and the injured Abdul Barik, Monfar Ali, Maharam Ali and Abdul Hakim on 8‑6‑63 supports the prosecution case.

P. Ws. 1, 2, 3, 4, 5, 6, 8, 9, 10 and 15 have categorically stated that accused Abul Hussain alias Pagal struck deceased Meher Bux Ullah on his belly with a Teta Phal (a kind of fish spear), the pointed iron portion of which was stuck to his belly and subsequently removed by operation at Sunamganj Hospital. The evidence of the P. Ws. is consistent on the point. There is no reason to disbelieve their evidence.

The Doctor P. W. 16 who held post‑mortem examination on the dead body of Meher Bux Ullah on 16‑6‑63 found amongst others one punctured wound on the epigastric region 2/3" x 1" x inch above abdominal cavity and opined that the death was due to shock and haemorrhage as a result of the injury which was ante‑mortem and homicidal in nature. The Doctor has also admitted that one Tetha which perforated the stomach of Meher Bux Ullah was removed in the Hospital by operation under general anaesthesia.

The evidence of the Doctor further showed that a requisition was sent for a Magistrate to record the dying declaration of deceased Meher Bux Ullah and a first class Magistrate came to the Hospital and recorded the dying declaration of the deceased at about 7‑30 p. m. on 8‑6‑63 in his presence. P. W. 13 Mr. M. L. Brua who recorded the dying statement of the deceased proved the dying declaration Exh. 3 and stated that the deponent Meher Bux Ullah was in his full senses at the time of the same. The deceased in his dying declaration has named accused Abul Hussain as having struck him with a Teta and accused Abdus. Sattar as having assaulted him with a lathi. There is plenty of evidence on record to corroborate the dying declaration Exh. 3 proved in the case. The dying statement of deceased Meher Bux Ullah is true and genuine. The evidence of the eye‑witnesses coupled with the dying declaration has thus proved the charge against the accused Abul Hussain alias Pagal beyond all reason able doubt and we maintain his conviction under section 304, Part II of the Pakistan Penal Code.

Regarding the charges under section 324 of the Penal Code against accused Ramjan, Abdul Gafur alias Gafur, Jamadar and Tarifullah, it is sufficient to say that there is overwhelming evidence on record to prove those charges. The evidence of the eye‑witnesses is uniform as to the respective charges under section 324 of the Code levelled against each of the individual accused.

P. W. 2 Abul Barik has categorically stated that accused Ramzan struck on his left hand with Jatha, accused Gafur gave him a Dao blow on his right hand and accused Jamadar stabbed him on his chest with a Koch Sola. This evidence of P. W. 2 has been corroborated by P. Ws. 1, 5, 6, 8, 9, 10 and 15. P. W. 16 Dr. Shafiul Islam who examined injured Abdul Barik (P: W. 2) found one incised wound, one perforated wound and two punctured wounds on his body. The evidence of the eye‑witnesses coupled with the evidence of the Doctor P. W. 16 has thus proved the separate charges under section 324 of the Pakistan Penal Code against the individual accused beyond all reasonable doubt. Even excluding the evidence of some of the P. Ws. above, due to certain minor omissions either before the Investigating Officer or in the Committing Court there remains the consistent evidence of P. Ws. 1, 2, 5, 8 and 9 against accused Ramjan; P. Ws. 1, 2, 8 and 9 against accused Gafur; P. Ws. 1, 2, 8 and 9 against accused Jamadar and there is no reason to disbelieve their evidence.

Similarly there is also sufficient evidence against accused Tarifulla in respect of the charge under section 324 of the Pakistan Penal Code. P. W. 3 Monfar Ali, a victim of the occurrence has deposed to the effect that accused Tarifulla injured him on his right leg with a five pronged Attar which was stuck to his leg and removed subsequently by the Doctor in Sunamganj Hospital. This evidence of P. W. 3 has been corroborated by P. Ws. 1, 5, 6, 8, 9, 10 and 15. The Doctor P. W. 16 found punctured wound on the right leg of the victim. Here also excluding the evidence of some of the P. Ws. due to minor omissions or contradictions here and there, we get the consistent evidence of P. Ws. 1, 3, 8 and 10 against accused Tarifulla and find nothing on record to discard their evidence.

The respective charges under section 324 of the P. P. C. against accused Ramjan, Gafur, Jamadar and Tarifulla have thus been satisfactorily proved and they have been rightly convicted under section 324 of the P. P. C.

The next question for consideration is whether the 10 appellants before us formed an unlawful assembly with the common object of assaulting deceased Meher Bux Ullah and the other P. Ws. and whether they or any of them committed assault on the deceased and the others of the complainant party in prosecution of their common object.

The occurrence took place over cutting of Chhan grass in the graveyard of Raghunathpur. It transpires from the evidence of P. Ws. 1 and 10 that the graveyard in question is the common property of all the villagers of Raghunathpur and that each of the villagers has a right to appropriate the Chhan grass grown on it and graze cattle over there during the months from Kartic to Chaitra. The evidence of P. W. 1 further shows that accused Iskandar, Khurshed, Wahedulla and Ramjan ar6 men of Raghu nathpur and that the houses of accused Charu, Abul Hussain, Jamadar and Sattar are along the east bank of the dead Surma River. This being the majority of the accused persons, it seems, have come from Mouza Raghunathpur and they have go right in the graveyard to cut the Chhan grass. There is nothing on record to show that the complainant party was to exclusive possession of the graveyard. The accused party thus seem to have gone to the graveyard to exercise their right and not to dispossess the complainant party. The assembly which was exercising a bona fide right was not then unlawful.

It is true that the accused persons were variously armed and they went upon the graveyard in a large body armed with deadly weapons, prepared in anticipation of a fight but they went there to retain their possession right, that is, to maintain their common right of enjoyment and not to enforce a right or a supposed right Cutting of Chhan grass in exercise of bona fide right was the motive of the accused persons and dispossession or assault was not/ their object.

In this view of the matter, let us see how far the charge under section 148 of the Penal Code framed by the learned Judge and the conviction under sections 147 and 148 of the Pakistan Penal Code against the accused persons can be sus tained. The common object set out in the charge is to assault the deceased Meher Bux Ullah and others of the complainant party but the common object established by the facts as discussed above, appears to be one of cutting of Chhan grass in the graveyard in ex ercise of right. The common object given in the charge has not thus been substantially made out. In order to sustain a conviction in a case of unlawful assembly the rule is that the common object stated in the charge must agree in essential particulars with the common object established in the evidence. Where the alleged common object of unlawful assembly fails, the accused persons cannot be convicted under sections 147 and 148 of the Pakistan Penal Code. They can however be convicted if in dividual acts of illegality can be proved against each of them individually. This view receives support from two decisions, one being the case of Fitbaran Singh and others v. Emperor (A I R 1918 Pat. 148) and the other, the case of Silajit Mahto v. Emperor (36 Cal. 865). The conviction of the accused persons under sections 147 and 148 of the Pakistan Penal Code, cannot, therefore, be maintained.

It appears from the evidence on records that the actual trouble in the instant case was started when the complainant party raised objection to the accused cutting the Chhan grass from the common graveyard. The evidence of P. W. 16 Doctor Shafiul Islam shows that four members of the accused party also received injuries in the encounter and the injuries on some of them were of serious type. This means that the complainant party was equally armed and they also used force whereupon the accused persons counteracted it and consequently a fight ensued. So from the facts and circumstances of the case it follows that on the date of occurrence both the parties went to the graveyard to establish their supremacy upon the common right of enjoyment and for that purpose each party anticipating resistance from the other armed themselves fully to have a trial of their strength Hence in the circumstances such as those of the present case, no question of right of private defence of person or property would arise and the common object stated in the charge having failed, each party would be held responsible for his individual acts. In this connection we may profitably refer to the case of Syed Ali Beparti v. Nibaran Mollah and others (P L D 1962 S C 502) wherein it ha been observed as follows:‑

"There is sufficient and satisfactory evidence that there was dispute between the parties over the plot which adjoins Ahmad Bepari's land to the south, Syed Ali Bepari (P. W. 1) claimed this southern plot and also filed documents in support of his claim. On the other hand, the accused Abu Mollah filed certain papers in support of his claim. There is, however, no satisfactory evidence that either party was in exclusive or undisturbed possession of this land. A legitimate conclusion, therefore, could be drawn that on the morning of 15th November, both parties went to enforce there right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property. From the state of relations between the parties. It is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. We think it is reasonable to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter. Hence in the circumstances such as those of the present case no question of right of private defence would arise and, the common object stated in the charge having failed, each person would be held responsible for his individual acts."

The principles of law enunciated therein rightly apply to the facts of the present case and we respectfully follow the same.

For the reasons, stated above, the conviction and sentence of appellants Nos. 1 to 5, viz. Abul Hussain alias Pagal, Abul Gafur, Ramjan, Jamadar and Tarifulla under section 148 of the Pakistan Penal Code and that of appellants Nos. 6 to 10, viz. Abdus Sattar, Tamij, Palan, Charu and Farazulla under section 147 of the Pakistan Penal Code are set aside. The conviction and sentence of appellant No. 1 Abul Hussain alias Pagal under section 304, Part II of the Pakistan Penal Code and that of appellants Nos. 2 to 5, viz. Abdul Gafur, Ramjan, Jamadar and Tarifulla under section 324 of the Pakistan Penal Code are confirmed.

Appellants Nos. 2 to 5, namely, Abdul Gafur, Ramjan, Jamadar and Tarifulla are directed to surrender forthwith to their bail bonds and serve out the rest of their sentence under section 324 of the Pakistan Penal Code. The bail bonds of appellants Nos. 6 to 10, namely, Abdus Sattar, Tamij, Palan, Charu and Farazulla who are on bail are herewith cancelled.

The appeal is disposed of accordingly.

‑I agree.

Appeal partly allowed.

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