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Criminal Revision No. 241 of 1950, decided on 28th July 1950.

S. 35‑Offences under sections 143, 379 and 427,. Penal Code‑Separate sentences for each offence held legal even when common object of unlawful assembly was to commit assault.

Under section 35 of the Code of Criminal Procedure, from which, as amended in 1923, the word "distinct" before the word offences has been deleted, separate sentences for rioting and causing hurt and grievous hurt were legal even when the common object of the unlawful assembly was to commit assault.

41 Cal. L. J. 563 and 31. Cal. W. N. 691 ref. to.

A. K. Fazlul Huq, for Petitioners.

D. C. Roy, for Opposite Party.

‑Revision No. 241 of 1950. In this case a rule was issued on the District Magistrate of Dacca to show cause why the sentences imposed on the five petitioners by Mr. A. Salam, a Magistrate of the 1st Class at Manikganj, on the 8th of January 1,948, should not be modified.

The petitioners were tried by the learned Magistrate on charges under sections 143,'447, 379 and 427 of the Pakistan Penal Code. They were sentenced on their convictions to rigorous imprisonment for two months each under section 143 of the Code, to a fine of Rs. 100 each under section 379 of the Code and to a fine of Rs. :00 each under section 427 of the Code. No separate sentence was passed under section 447 of the Code.

Mr. Fazlul Huq has appeared before us in this matter and has argued that the sentences are cumulative and illegal. He has claimed that the petitioners have not only been sentenced for being members of an unlawful assembly but they have also been sentenced for each of the common objects of that unlawful assembly.

Mr. Fazlul Huq has been opposed by Mr. Dinesh Chandra Roy who has relied on two rulings, the case of Kanchan Molla v. The King‑Emperor 41 C. L. J. 563, and the case of Fatiar Bap v. The King‑Emperor 3 1 C. W. N. 691. The first case of Kanchan Molla v. The King‑Emperor 41 C. L. J. 563, is the one which distinguishes the previous rulings which were all passed prior to the amendment of the Code of 1898 in the year 1923, and their Lordships Newbould and B. B: Ghose, JJ., held that, after the amendment of the Code,) separate sentences can be passed under section 35 of the Criminal Procedure Code as amended read with section 71 of the Indian Penal Code for an offence of house breaking at night with intent to commit theft under section 457 of the Indian Penal Code, and of theft of ornaments, etc., from that house under section 380 of the Indian Penal Code, the sentences of imprison ment running one after another. That ruling was followed by the ruling in the case of Fatiar Bap v. The King‑Emperor 31 C. W. N. 691 which is exactly on all fours with the present case. Their Lordships Duval and Mitter, JJ., held in the case of Fatiar Bap v. The King‑Emperor that under section 35 of the Code of Criminal Procedure, from which, as amended in 1923, the word "distinct" before the word offences has been deleted, separate sentences for rioting and causing hurt and grievous hurt were legal even when the common object of the unlawful assembly was to commit assault. The principles of law laid down in Fatiar Bap's case, so far as we know, have been consistently followed ever since.

It follows, therefore, that it cannot be urged before us that the sentences imposed by the learned Magistrate in this case are illegal.

The rule is accordingly discharged, the convictions and sentences are maintained and the petitioners will now pay the fines required of them or in default undergo the additional terms of imprisonment imposed in lieu thereof.

Revision No. 286 of 1950.‑In this case a rule was issued on the District Magistrate of Dacca to show cause why an order under section 522 (3) of the Code of Criminal Procedure passed by Mr. H. Ali, the Additional Sessions Judge of Dacca, on the 25th of, May 1950, should not be set aside.

Mr. Fazlul Huq has appeared in support of the rule. Mr. D. C. Roy has appeared to oppose it.

In our opinion the rule must be made absolute. Mr. Roy admits that there is no express finding in terms of section 522, of the Code of Criminal Procedure in the Court below. There is no finding that the opposite party actually was dispossessed from the land or that he was dispossessed by criminal force or by show of criminal force. In the absence of any positive finding the order under section 522 of the Code cannot be maintained:

This rule is accordingly made absolute and the offending order is set aside.

.‑I agree.

K. M. A. Rule made absolute.

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