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Criminal Revision No. 290 of 1949, decided on 17th January, 1950, against the order of Sessions Judge, Hazara, dated 18th November, 1949:

S.2‑Accused forming un lawful assembly and entering cafes, etc., forcibly to prevent Profile from eating and drinking during Ramazan‑Offence under S. 452, P. P. C.‑‑Accused's action whether justified by Hadis Or Quran.

Where some people who were definitely more than five in number, formed an unlawful assembly, the common object of which was to commit mischief or criminal trespass, or other offence by entering into hotels and restaurants after arming themselves with, sticks and thus having made preparation for causing hurt to the persons who were not observing fast and where the defence pleaded Hadis in justification of the accused's action.

Held that the conviction of accused under section 452, Pakistan Penal Code was well founded.

Nowhere in the Holy Quran has anybody been permitted to take law into his own hands and start first judging a person whether he has done a certain wrong or not, and then inflicting the sentence at once

No one in Islamic Society has got a right to take the law into his own hands, because if everybody is permitted to become himself the judge and then inflict the sentence at the spot, there would be chaos in society.

The prosecution case is that on the 15th of of July, 1949, some people who were definitely more than five in number, formed an unlawful assembly, the common object of which was to commit mischief or criminal trespass, or other offence. It was alleged that these persons entered into the hotel of one Qadardad and other restaurants and hotels in Abbottabad city, after arming themselves with sticks ,and thus having made preparation for, causing hurt to the persons who were not observing fast.

Out of these persons, who were numerous in number, the Police succeeded in. arresting Fateh Khan, son of Azad Khan aged about 34 years, Mirdad, son of Abdullah Khan, aged about 32 years, Zain Khan, son of Qaim Khan, aged about 22 years, Yaqoob, son of Fateh Khan, aged about 40 years, Gul Hassan, son of Hayat Khan, aged about 22 years, Mobahat, son of Ali Mardan, aged about 35 years, and Lal Khan, son of Ali Bahadur, aged about 28 years, all residents of Nawanshehr in Hazara District, as well as Muhammad Yusaf, son of Azad khan, aged about 25 years, of Sheikliul Bandi in the same District.

Sayed Masoom Shah, a Magistrate of Hazara recorded the confessions of all these persons except Muhammad Yousaf. Gul Hassan stated that Fateh Khan had told him that some men were eating meals and drinking tea in the Cafe and that he wanted to beat them. He asked him. to join him, and he agreed. Fateh Khan was at the time accompanied by Yaqoob, Mirdad, Zaina, Lal Khan, Mohabat and some others. He admitted that he entered into a Cafe and belaboured those who were smok ing, eating and drinking tea, and that the utensils were broken in the struggle. He could not say, who were injured, but admitted that he and his party definitely wounded some persons in the hotel. Yaqoob accused stated that he was going for Juma Prayers when he was detained by Mirdad and Fateh Khan, who told him that a warning should be administered to those who were openly defying the month of Ramzan. They, accord ing to him, went to a Cafe. Where after some discussion a fight took place between the defaulters and his party. He said that he only prevented one man from eating in the month of Ramzan and then they all marched in a procession to other Cafes and hotels. Mirdad accused confessed that he and Fateh Khan were sitting at a Saw Mill when they saw persons entering into a Cafe. On inquiry, he was told that the people used to eat and drink in this Cafe. In the meantime, according to him Latif Khan and Gul Hassan also came there, and they then all went to the Cafe. Lal Khan and Mohabat also joined them. They then broke the utensils, in which people were eating and drink ing tea, and they also gave them beating. Afterwards they went to other Hotels. Fateh Khan accused stated in his confession that be and Mirdad were sitting at a Saw Mill when they saw persons going into and coming out of the Cafe through the back door. On inquiry, be was told that its owner Qadardad was openly supplying meals and tea to those who did not observe fast. Yaqoob also arrived and he was informed of the situation. They then collected some other people, and arming themselves with sticks went into Qadardad's Cafe, where they first stopped people from eating and drinking and when they refused to comply with their request they started beating them with sticks.

The confessions of Lal Khan, Mohabat Khan and Zain Khan were also to the same effect as the confessions of the other accused.

Muhammad Yusaf accused did not make a confession and did not admit hawing taken part in this riot.

The Police challaned all these persons under sections 148 and 395 Indian Penal Code.

The learned trial Magistrate, after recording the evidence, came to the conclusion that the accused were proved to be guilty under section 452 Indian Penal Code as well as under section 148 Indian Penal Code. He sentenced them each to two years' rigorous imprisonment on each count. Both the sentences were ordered to run concurrently.

On appeal the learned Sessions Judge, Hazara acquitted Muhammad Yusaf, but maintained the convictions and sentences of the other appellants.

Being aggrieved by this order, Fateh Khan, Mirdad; Zain Khan, Yaqoob, Gul Hassan, Mohabat and Lal Khan have come up on revision to this Court.

The learned counsel, appearing for them, has not denied that the, petitioners took part in the riot. He has also not denied that the petitioners were armed with sticks, and entered into the Cafe of Qadardad and beat him and some other persons sitting there. In fact, all the accused in Court admitted in clear words that what they had stated in their confessions was correct, and that they had collected together in order to give beating to those persons who were eating and drinking openly in Qadardad's and other people's Cafes. The argument of the learned counsel for the petitioners was solely based on Hadis, which is to the following effect:--

"If yon see anybody doing anything against Shariat, you should stop him by your hand, and if you cannot stop him by your hand, should stop him by your tongue, and if you cannot do that either, you should non‑co operate with him".

In the book called Ashaaul Lamaat 1913 Edition, the trans lator has added that by stopping a person by your hand means 'beating and dragging him and breaking and tearing the thing.

On the basis of this Hadis, the learned counsel for the peti tioners has argued that the petitioners were perfectly justified in taking the law into their own hands, entering into the Cafe of Qadardad and beating him and other persons, who were eating and drinking openly there, and thus defying the holy month of Ramzan. '

No one can possibly doubt the soundness of the principle laid down in this Hadis. It is in fact the right of every person to stop every body else whom he finds doing something wrong, but it is not possible for me to agree with the addition made by the translator that by the words "You should stop him by your hand" it is meant to beat or belabour any person. To permit an individual to become violent against a person, who is doing some thing wrong would be against the very spirit of the following words in the Holy Quran:‑--

"It is part of the Mercy of God that thou dost deal gently with them. Wert thou severe or harsh‑hearted, they would have broken away from thee so pass over (their faults) and ask for God's forgiveness for them". (Sura III Al‑i‑Imran).

Nowhere in the Holy Quran has anybody been permitted to take the law into his own hands and start first judging a person whether he has done a certain wrong or not, and then inflicting the sentence at once.

As regards fasting, declared orders of God in the Holy Book are contained in Sura II (Baqara), which are to the following effect :‑

"Fasting for a fixed number of days; but if any of you is ill, or on journey, the prescribed number (should be made up) from days later. For those who can do it (with hardship), is a ransom, the feeding of one that is indigent. But he that will give more of his own free will it is better for him. And if ye fast, it is a better for you, if ye only knew".

It is obvious from the above quotations from the Holy Book that a person is permitted to break the fast if he is ill, or if he is on journey. If anybody finds any person eating, it is for him to first see whether me person who is eating is not absolved from fasting, and if he finds that is not, then he has got to refer the matter to the person to authority, who should go into the question and make proper inquiries, and then if there is punishment provided in the Holy Book to award the punishment to that person. Refer ence to an authority has been 'imperatively laid down in the Holy Book at various places. The special provision, however, is to the following effect :‑

"When there comes to them some matter touching (Public) safety or fear, they divulge it. If they had only referred to the Apostle or to those charged with authority among them. The proper investigators would have tested it for them (direct)".

Although this passage is used on a particular occasion, yet there is no doubt that the principle laid down in this passage is of general application. To my mind it 'is obvious from this passage as well as from other provisions in the Holy Quran to the effect that no person can be punished in a case until there are witnesses to prove that he has committed that offence that reference has got to be duly made to the authority. No person is allowed to take the law into his own hands and inflict punishment on the person, whom he believes to have committed some sin. The evidence procured upon the record clearly shows chat the petitioners and their other companions entered into Qadardad's Cafe, and without making any investi gation, even if it be believed that there were some persons who were eating and drinking in the month of Ramzan, whether the persons whom they assaulted were justified in breaking the fast or not, started beating them and breaking the utensils and throwing away other articles. There is no evidence that Qadardad in any case, who received numerous injuries, was not observing the fast, or was eating at the time when he was belaboured. According to the commands of God laid down in the Holy Quran the petitioners had no right to enter into the Cafe. Entry into another person's house is forbidden without the per mission of the owner of that house in Sura XXIV.

It will be significant to note that where God provides punish ment for different offences, he has provided no punishment for those persons, who either do not observe fast or do not offer prayers. The punishment in the Holy Quran is only provided in those cases, in which there is a violation of other people's right. He has definitely reserved the punishment of the offences which amount .to the violation of Divine limits to himself. Even if the Hadis quoted above be taken to mean what the learned translator has put it in his book, still I am of the opinion that the petitioners had no justification in beating anybody in Qadar dad's Cafe, because there is no reliable evidence on the record produced by the petitioner, that anybody was in fact eating or drinking in that Cafe.

Consequently, I am of the view that the conviction of the petitioners under section 452 Indian Penal Code is well founded and is hereby maintained. No one in the Islamic society has got a right to take the law into his own hands, because if everybody is permitted to become himself the judge and then inflict the sentence at the spot, there would be a chaos in the Society. I am, therefore, of the view that the petitioners committed an offence, which is a violation of the people's right, and the sentence awarded to them, if at all, errs on the side of leniency.

As regards their conviction under section 148 Indian Penal Code,,; the learned Advocate General has conceded that this section has wrongly beer' applied. Section 148 Indian Penal Code punishes the persons guilty of rioting only when they are armed with a deadly weapon, or with anything which when used as a weapon of offence is likely to cause death. In the present case the prosecution alleged that these persons were armed with sticks,' and; thus, the offence would more ' properly fall under section 147, Indian Penal Code. I, therefore, alter the conviction of the petitioners from that under section 148 Indian Penal Code to one under section 147, Indian 'Penal Code and reduce the sentence to one years' rigorous impisonment each, which run concurrently with the sentence under section 452 Indian Penal Code.

The petition is accepted to the extent. mentioned above; in all other respects it fails and is hereby dismissed.

Orders Announced. Conviction altered.

A. H.

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