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Revision No. 616 of 1967, decided on 16th December 1968.

S. 147‑Riotitrg‑Accused charged with common object to forcibly occupy disputed land and dispossess complainant therefrom‑Trial Court, after discussing evidence, holding accused guilty of forming unlawful assembly with common object of causing hurt to complainant‑Such accusation never put to accused and accused not getting opportunity to meet same Accused held, prejudiced in trial‑‑‑Conviction not maintainable.

Tamizuddin Master and others v. Asimuddin A I R 1946 Cal. 305 and Aklu Mian and others v. Emperor A I R 1928 Pat. 405 ref.

Abdus Salam with Abdul Baset Mazumdar for Petitioners.

J. H. Khan for the State.

The accused petitioners were convicted under section 147, P. P. C. and sentenced to pay fine of Rs. 100 each in default to rigorous imprisonment for one month each. The petitioners Nos. 4 and 6 were further convicted under section 323, P. P. C. to pay a tine of Rs. 50 each, in default to rigorous imprisonment for 15 days each. The petitioner No. 5 was further convicted under section 324, P. P. C. to pay fine of Rs. 100 in default to rigorous imprisonment for one month.

The prosecution case, in short, is that on the date of occurrence, the accused persons forming an unlawful assembly, armed with various weapons, entered into the land of the com plainant in Plot No. 257 of Mouza Gazaria P. S. Tejgaon and ploughed up the same where chillis were transplanted by the complainant. A protest having been raised, accused Shaheb Ali pushed Shahajahan down, accused Akbar Ali dealt a karta blow on his left thigh and accused Mofizuddin dealt him two dao blows on his head. The other accused assaulted the complainant with lathis. On these allegations the accused petitioners were put on trial before the learned Magistrate to meet the various charges levelled against them.

The plea of the accused was one of innocence. They asserted that they had been falsely implicated in the case out of grudge.

Six witnesses for the prosecution and none for the defence were examined in the case. The learned Magistrate on appraisal of the evidence convicted and sentenced the accused petitioners as above stated. The accused preferred an appeal before the Sessions Judge, Dacca against the said order of conviction and sentence. The learned Additional Sessions Judge 2^nd Court, Dacca by his judgment dated 14‑6‑67 dismissed the appeal and affirmed the order of conviction and sentence. The petitioners being aggrieved thereby moved this Court and obtained the present Rule.

Mr. Abdus Salam, the learned Advocate appearing for the petitioners has contended that the common object charged against the accused under section 147, P. P. C. being one and the common object found by the two Courts below being another and the original common object stated in the charge having thus failed and the new common object now found not being put to the accused, the charge under section 147, P. P. C. has not been established and as such the conviction and sentence. of the accused petitioners thereunder are bad in law. In support of this contention the learned Advocate has referred to the case of Tamizuddin Master and others v. Asimuddin (A I R 1946 Cal 305) and also the case of Aklu Mian and others v. Emperor (A I R 1928 Pat. 405).

The charge as framed against the accused under section 147, P. P. C. runs as follows :‑

"That you on or about the 12th day of Poush, 1369 B. S. corresponding to 28‑12‑62 at village Babu Jaiga under P. S. Tejgaon Dacca were a member of an unlawful assembly, and, in prosecution of the common object of such assembly, to forcibly occupying the disputed land and dispossessing the com plainant committed the offence of rioting and thereby committee an offence punishable under section 147 of the Pakistan Penal Code and within my cognizance. And I hereby direct that you be tried by the said Court on the said charge."

It is apparent from the above charge that the common object of the unlawful assembly was to forcibly occupy the disputed land and disposses the complainant therefrom. But the trial Court after discussing the evidence has come to the finding at page 5 of his judgment that the accused persons formed an unlawful assembly having common object to cause hurt to both the complainant and his son Shahjahan by means of sharp cutting instrument shurki, dao and blunt weapons like lathi. The learned Additional Sessions Judge has in this connection observed as follows :‑

"To my mind it was not illegal on the part of the learned Magistrate after analysis of the evidence to come to the con clusion that the common object of the assembly of the accused persons were to cause voluntary hurt, though they might have been charged for a common object of forcibly occupying the; disputed land and dispossessing the complainant."

It is clear from the above that the common object charged, was one and the common object found by the Courts below was another. The new common object now found on evidence by the two Courts below was never put to the accused and the accused did not get opportunity to meet this new accusations now discovered. The common object now established, not having been put to the accused they can rightly complain that they have been prejudiced in this trial. The grievance of the learned: Advocate has thus considerable force.

In the case of Tamizuddin Master mad others v. Asinmiddin Henderson, J., observed as follows :‑

The prosecution case was that it was in the possession of the complainant and accordingly the common object set out in the charge was to dispossess Asimuddin, the complainant. The learned Sessions Judge was not satisfied that the disputed land was in possession of the complainant. He, however, upheld the conviction on his own finding that there was a common object of causing hurt to members of the complainant's party. It is impossible to uphold this order. The petitioners had to meet a certain case set out in the charge. It is impossible to substitute a totally different common object put forward for the first time in the judgment of the appellate Court. If such a charge had been framed I have no doubt that the petitioners world have had no difficulty in showing that they had no common intention of hearing the complainant's party as such . . . . . . The Rule is accordingly made absolute."

Similar view was also taken in the case reported in A I R 1928 Pat. 405. The learned Advocate appearing for the opposite‑party could not give any reply to the question raised above nor could cite any case‑law to controvert the above proposition of law.

I do not find any reason to differ with the view expressed above. Me accused petitioners did not get opportunity in the trial to meet the new common object proved against them. If this new common object would have been stated in the charge they could certainly give reasons showing that they did not form any milawful assembly with the common object of assaulting the complainant and his son. In this view of the matter, I hold that the accused have been prejudiced in the trial and that the common object charged in the case has not been proved and as such the conviction of the accused petitioners under section 147, P.P.C. is not maintainable.

The learned Advocate has next submitted that there being no evidence to prove the amicable partition and the accused having challenged the story of amicable partition and claiming the right of private defence of property in the case, the conviction of the petitioners Nos. 4, 5 and 6 under section 323 or 324, P. P. C. is had in law. This contention of the learned Advocate has no substance. The evidence of P. Ws. 1, 3, 4 and 5 have satisfactori ly established that the disputed land was in possession of the complainant and he got the same by amicable partition among three brothers. Both the Courts below have considered this aspect of the case and come to independent findings on facts. There is no room now to take a different view on the point. The evidence being uniform the question of right of private defence, as raised by the learned Advocate, does not hold good. The accused petitioners Nos. 4, 5 and 6 have, therefore, been rightly convicted and sentenced under sections 323 and 324, P. P. C.

In view of the discussions made above, the conviction and sentence of the accused petitioners under section 147, P. P. C. are set w4de but the conviction and sentence of the petitioners Nos. 4 and 6 under section 323 and the petitioner No. 5 under section 324, P. P. C. are upheld.

The Rule is thus disposed of.

Rule disposed

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