P (PLP)

ELLIS , J.‑In this case a rule was issued on the District Magistrate of Sylhet to show cause why the conviction and sen tences passed on certain petitioners should not be set aside. In all some 29 persons were placed on trial before Mr. Hafiz Ahmed, Magistrate of the 1st Class, Sonamganj, all of them on a charge under section 147 of the Pakistan Penal Code, three of them on a charge under section 324 of the Code, and four of them on a separate charge under section 324 of the Code. They were all convicted under section 147 of the Code and of their number certain were find Rs..100 each, or to suffer rigorous imprisonment for six weeks. Two of their number were, how ever, sentenced to rigorous imprisonment for three weeks in addi tion to fines imposed upon them. Seven persons who stood charged with specific offence, under section 324 of the Code were also fined Rs. 150 each. On the petitioners preferring an appeal before the Sessions Judge, Sylhet, the learned Sessions judge maintained the conviction under section 324 of the Code and the sentences imposed thereunder on seven of the petitioners. The learned Sessions judge, however, altered the conviction of the remaining petitioners under section 147 of the Code to one under section 323 of the Code, and reduced the fines imposed upon them from Rs. 100 to Rs. 50 in the case of each of them. Thereafter the petitioners approached this Court in the exercise of its criminal revisional jurisdiction. The application of those petitioners, who were convicted under section 324 and fined Rs. 150 each, was rejected. The present rule was issued on behalf of those persons whose conviction under section 147 of the Pakistan Penal Code was altered to one under section 323 of the Code. We have heard Mr. Hye, who has appeared before us in support of the rule and has argued that the learned Sessions judge has no right in law to alter the conviction under section 147 of the Code to one under section 323 of the Code, as no specific charge was ever framed against these petitioners under 'section 323 of the Code. It is quite clear from the very definitions of two sections, namely, 147 and 323 of the Pakistan Penal Code that they cannot be regarded as offences ejusdem generies. The test to be applied a to whether an accused person charged under one section can be convicted under another section is whether he had notice of the offence of which he is to be convicted, and so was not prejudiced by his conviction. In applying this test to the facts of the present case, we cannot but hold that the petitioners were prejudiced. From a reference to the records of the trial Court it appears that the petitioners were charged with being members of an unlawful assembly, the common object of which was to seal away the paddy seedlings of the complainant. If the common object of the assembly had been to assault the complainant and other members of his party and if the evidence established that the petitioners did so beat them, the matter might have been different, and it might have been possible to argue that the alteration of the conviction from section 147 o: the Code to section 323 of the Code was not illegal, because section 323 of the Code may then be held to be covered by the common object of the assembly. However, when the charge of the offence recites that the common object of tile assembly was not to assault any body at all, but merely to steal. away the paddy seedlings of the complainant, we do not think it could possibly be urged that the alteration of the section from section 147 of the Code to section 323 of the Code is legal or has not prejudiced these petitioners. In these circumstances the rule is made absolute. The con viction of the petitioners under section 323 of the Pakistan Penal Code as recorded against them by the learned Sessions Judge is set aside and the fines imposed upon them under section 323 of the Code are also set aside, and we direct that if the fines have been paid by them, they shall be refunded. AHMAD J.‑I agree. K. M. A. Petition accepted.