P L D 1964 Dacca 480 (PLP)

It would be seen that, to say the very least, the aforesaid evidence is equivocal and ambiguous. The word "respective" in the aforesaid evidence as recorded by the learned Assistant Sessions Judge has no meaning. It can possibly be read as `respectively'. In these circumstances, the proper construction of the words of P. W. 8 Rupchand, as taken down by the learned Assistant Sessions Judge, should mean that the accused Mahim and Isab began to assault Sukchand, respectively with lathi and fala handle. It may also possibly mean that Mahim and Isab assaulted Sukchand respectively on the head and body. The former con struction is in consonance with the rest of evidence in this case, in the sense that Mahim had a lathi with him and that Isab had struck with a fala handle. None of the witnesses has stated that Mahim had dealt a lathi blow on the head of the deceased Sukchand ; on the contrary, P. W. 11 Ejaruddin has definitely stated that accused Isab dealt a blow on Sukchand with fala handle. Furthermore, it appears from the transcript of evidence as taken down by the learned Assistant Sessions Judge that Mahim dealt a tathi blow on the blow (sic) given by Isab. It is not possible to read the evidence in any other sense. In this background, even if it is held that the evidence of P. W. 8 Rupchand can be con strued in two different manners, the construction which is favourable to the appellant ought to prevail. This exhausts the evidence in this case with regard to the charge against the appellant ought to prevail. This exhausts the evidence under section 304 of the Pakistan Penal Code. On such evidence it is impossible to maintain his conviction under the aforesaid section. I would, therefore, set aside the conviction of appellant Mahim Mondal under section 304 of the Pakistan Penal Code as well as the sentence of rigorous imprisonment for five years imposed on him thereunder. This appellant Mahim Mondal is, therefore, acquitted of the said charge.

15. I would now turn to the conviction of appellant Mahim Mondal as well as all other accused who are before me, in connec tion with the aforesaid revision case, on the point on which my learned brothers have differed, namely, their conviction for rioting either under section 148 or under section 147 of the Pakistan Penal Code. In this connection the most important question to consider is, who possessed the aforesaid plot of land, namely, C. S. Plot No. 48, as stated above. The evidence in this behalf which stares one in the face is Exh. 3 which was seized from the custody of one of the accused persons. This is the earliest document that has been produced in this case relating to the possession of the said plot; Exh. 3 is C. S. Khatian No. 165 of Mouza Jageswar. It shows that the disputed land was recorded in the name of Umir Mondal, father of the accused Isab Mondal and Mahim Mondal in occupancy right under the joie right of one Sashidhar Mondal. Under the Bengal Tenancy Act this document raises a legal presumption that the land was possessed by Umir Mondal, father of accused Isab and Mahim Mondal. There is also a legal presumption of the correctness of the entry in C. S. Khatian No.

165. It is significant that the right of the father P. W. 4 Subodh Chandra Mondal, under whom the complainant claims title, has been recorded a jote right, and Umir Mondal, father of Isab:andjMahim, has been recorded to be in possession of the land in occupancy right under the joie of Sashidhar Mondal father of P. W. 4 Subodh Chandra Mondal. The said Sashidar Mondal had a superior right in respect of the said plot of land, but Umir Mondal was in possession of the said plot m occupancy right.

16. Thereafter comes a very suspicious document, namely, Exh. 1, the kabala, by which the complainant and his brothers claim the disputed land. The transferor is P. W. 4 Subodh Chandra Mondal. The said document (Exh. 1) is dated 19th August 1959, and it came into existence a few months before the occurrence which has led to the present prosecution. The learned Assistant Sessions Judge has noticed some of the features of this kabala, Exh. 1, which render it a very suspicious document. I need not repeat them here and would only add that the prominent features of Exh. 1 disclose that it is, to say the very least, a document, the genuineness of which is highly debatable.

17. The next document is Exh. 4 which is a certified copy of a revisional settlement under the East Bengal State Acquisition and Tenancy Act, 1950, which has not yet been finally published. A copy of this has been obtained by P. W. 4 Subodh Chandra Mondal and it bears the date 11th dune 1959. I have already noticed that this record is not a final publication of the survey made under the East Bengal State Acquisition and Tenancy Act, 1950. Another interesting feature of this document is that the interest of Chandra Mondal has been noted as Madhyaswathwa which signifies "intermediate interest." In any event, an objection was taken by the accused persons against such a record and it is the case' of the accused persons that an appeal is till pending in respect of the same. A suggestion was given in this behalf to P. W. 4 Subodh Chandra Mondal who denied it. But, according to the fact and circumstances of the case, the suggestion is a probable one. In any event, the document not being a final publication, the learned Assistant Sessions Judge was right in observing that no presumption of law as to the possession of the disputed land in favour of the predecessors‑in‑interest of the com plainant would arise in this case.

18. Three dakhilas have been produced on behalf of the complainant which have been marked as Exhs. 2, 2 (a) and 2 (b). These are rent‑receipts which shows certain rents paid by P. W. 4 Subodh Chandra Mondal, to officers under the East Bengal State Acquisition and Tenancy Act, 1950. The said receipts are pro visional and they do not necessarily establish Subodh's possession of the disputed land. Subodh could easily pay the rents without actually being in possession of the said suit land only with a view to create some evidence in his favour. The oral evidence in the case has been fully discussed by the learned Assistant Sessions Judge, who has found it difficult to place any reliance on the same. As I am in agreement with the assessment of the evidence by the learned Assistant Sessions Judge, I need not repeat what has already been stated by him. I would, however, like to point out that with regard to acts of possession by the complainant and his men or their predecessors‑in‑interest, the evidence is not only discrepant, but also highly improbable. I have no manner of doubt in my mind that the evidence adduced by the prosecution witnesses with regard to the possession of the disputed land by the complainant is not true. This being the position, the learned Assistant Sessions Judge has expressed the opinion that the claim of the accused to the possession of the land cannot be lightly brushed aside. My learned brothers Asir and Salahuddin Ahmed, JJ., are also of the same view, and I am, generally speaking, in substantial agreement with the view held by them ; but on an assessment of the entire evidence in the case, circum stantial and otherwise, I am of opinion that the possession of the accused persons in respect of the disputed land has been fully established, and I hold that they are in such possession.

19. I now turn to the crucial question of this case, namely, can the accused be held guilty of committing rioting within the mischief of either section 147 or 148 of the Penal Code? In order that they may be held to come within the mischief of either of B the aforesaid two sections, it is imperative that they must, under the circumstances of the case, constitute an unlawful assembly within the meaning of section 141 of the Pakistan Penal Code. The provisions of the said section 141, in so far as they are relevant for the purpose of this case, may be quoted as follows "An assembly of five or more persons is designated an `unlawful assembly' if the common object of the persons com posing that assembly is‑ First ....... Second . . . . . . . Third...... Fourth.‑By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of the use of water or other incorporeal right under which he is in possession or enjoyment or to enforce any right or supposed right." Undoubtedly, there has been a use of force by the accused persons in this case. The question is : Has such force been used for obtaining possession of any property or to enforce any right or( supposed right under the circumstances of the case ? In this connection it must be borne in mind that I have already held that the evidence in this case establish the possession of the accused persons in respect of the disputed land. Can it be said that they had gone to obtain possession of the property which had already been in their possession or that they had gone to enforce a right or supposed right? Were they maintaining, defending or pro tecting a right or were they enforcing it? Obviously, there is distinction between "enforcing a right" and "maintaining of protecting a right." On the view that I take of the evidence in this case, it is the complainant and his men who had launched an invasion upon the piece of land possessed by the accused. The accused had gone to the land to defend and protect their posses sion and not to enforce a right within the mischief of section 141 of the Penal Code. This section has no application to a case where a person in lawful possession of any property uses force in order to maintain such possession. Such a party, in the circum stances aforesaid, is not enforcing a right but preventing a wrong. In support of the view I have taken, I may discuss the follow ing cases.

20. In the case of Pachkauri and another v. Queen‑Empress (I L R 24 Cal. 686), the facts are as follows : The accused, receiving information that the complainant's party were about to take forcible possession of a plot of land, which was found by the Court to be in possession of the accused, collected a large number of men, some of whom were armed, and went through the village to the land in question. While they were engaged in ploughing, the complainant's party came up (some of them being armed) and interfered with the ploughing. A fight ensued, in the course of which one of the complainant's party was grievously wounded and he died sub sequently, and two of the accused's party were hurt. It was held by the Division Bench of the Calcutta High Court, consisting of Ghose and Gordon, JJ., that "if the accused were rightfully in possession of the land and found it necessary to protect themselves from aggression on the part of another body of men, they were justified in taking such precautions as they thought were required and using such force or violence as was necessary to prevent the aggression." It was further held that, under the aforesaid circum stances, they could not rightly be held to be members of an unlawful assembly. In the judgment that was delivered by the Court, the following observations have been made (at pages 698‑699 of the report) "He (Sessions Judge) stems to hold, if we understand him rightly, that there was an unlawful assembly on the part of the complainant, as also on the part of the accused, each party attempting to enforce some right, or supposed right in the property. But we fail to see how that position can be maintained so far as the party of the accused were concerned if, as we hold, and as we take it, the learned Sessions Judge has in effect held, that the latter had been in possession of the property for five or six years together, and was in lawful possession of it up to the date of occurrence. We are unable to say that the accused were upon that date endeavoring to enforce a right, or supposed right, within the meaning of section 143 of the Penal Code .. . . . . It seems to us that, if the party of the accused were rightfully in possession of the land on the date in question, and if they found it necessary to protect themselves from aggression on the part of the complainant's party, they were justified in taking such precautions as they thought were required, and we think that in doing so they could not rightly be held to be members of unlawful assembly." The aforesaid observations have been quoted with approval by Mookerjee, J., in the case of Paresh Nath Sircar v. Emperor (I L R 33 Cal. 295, 305), in the following terms "The present case appears to me to be rather within the rule that if persons are rightfully in possession of land and find it necessary to protect themselves from aggression, they are justified in taking precaution and using such force as is necessary to prevent the aggression

21. In the case of Emperor v. Muhammad Idris and others (A I R 1933 Oudh 279), Raza, J., (at page 280 of the report) observed as follows "The appellant's learned counsel has referred to clause (4), section 141, I. P. C. and laid some stress on the expression 'to enforce any right or supposed right' used in that clause. It has been definitely found that Muhammad Ismail and his son ldris were in peaceful possession of the groves in dispute. This being the case, the distinction, between 'enforcing a right' and `maintaining a right' should be borne in mind. The common object of an assembly is unlawful only when it is to enforce a right or supposed right but not when, possibly beyond doubt, it is to maintain a right and to prevent another from enforcing his right or supposed right. Where certain persons were merely acting in maintenance of an existing peaceful possession, no matter whether the possession was with or without title, they cannot be said to have been enforcing any right or supposed right, and, therefore, cannot be held to form an unlawful assembly within the meaning of section 141, clause (4), I. P. C. See Sarabdawan Singh v. Emperor A I R 1914 Oudh 222, section 147, I. P. C., cannot apply to a case where a person in lawful possession of any property proposes to use force in order to maintain his possession, for in such a case, his object is to prevent a trespass. He is not enforcing a right but pre venting a wrong."

22. In the case of Inderjit and others v. Emperor (26 Cr L J 43), a large number of authorities on this point have been considered and it was held that "the fourth clause of section 141 of the Penal Code has no application to a case where a person in lawful posses sion of any property proposes to use force m order to maintain his possession. The clause ‑speaks of taking or obtaining possession of any property: It does not speak of maintaining possession or resisting an attempt by another to take possession. It has no application to a party who uses force to defend property in his possession. Such a person is not "enforcing a right", but "preventing a wrong". It was, therefore held that a party which assembled on a piece of land in their possession, for the sole purpose of preventing a trespass, does not constitute an unlawful assembly within the meaning of section 141 of the Penal Code, and that if such trespass is committed and the party thus assembled proceeds to resist or prevent it and, in doing so, use force, it cannot be held to be guilty of rioting.

23. The case of Ramnandan Prosad Singh and others v. Emperor (17 C W N 1132), was decided by a strong Bench of the Calcutta High Court consisting of Mr. Justice Syed Hassan Imam and Mr. Justice E. P. Chapman and the Bench had the benefit of hearing the arguments of eminent lawyers like Mr. Jackson assisted by Mr. Dasarathi Sanyal, and Mr. S. P. Sinha (Lord Sinha) as he then was. The Court, in the judgment delivered by it, observed thus "The phrase `to enforce a right' can only apply when the party claiming the right has not possession over the subject of the right and therein lies the distinction between the `enforcing right' and `maintaining a right.' A party in possession is entitled to resist and repel an aggression and his action in so doing would be in the maintenance of his right." I need hardly discuss any other authority (and there are a large number of such authorities) on this point because I am clear in my mind as to the distinction between enforcing a right and maintaining or protecting it. Thus on this ground alone the conviction of the accused in the case before me, either under section 147 or 148 of the Pakistan Penal Code, cannot sustained as they cannot be held, on the facts of this case, to be member of an unlawful assembly.

24. The next question is, are the accused protected by a right of private defence as claimed by them. In this connection it is useful to quote section 97 of the Penal Code which runs thus "Every person has right, subject to the restrictions contained in section 99, to defend‑ First.‑His own body, and the body of any other person, against any offence affecting the human body : Secondly.‑‑The property, whether movable or immovable, of ' himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft robbery, mischief or criminal trespass," Thus, if the accused persons were in possession of the disputed land, can the complainant and his men be held to have committed a criminal trespass in respect of the said land `: Section 441 of the Penal Code defines "criminal trespass" as follows "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property . . . is said to commit criminal trespass." Having regard to the finding, at which I have arrived, it must be held that the act of the complainant and his men in going into the land possessed by the accused and in ploughing the same, wash nothing but a naked aggression and an unjustified invasion upon the said land. They had undoubtedly trespassed into the land of the accused. We have now to see whether they did so with a view to annoy the accused. The inevitable consequence of such an invasion would be, to say the least, to cause annoyance to persons who possessed the land. The complainant's party, must, therefore, be taken to have intended the natural and inevitable consequence of their act. It must be held that, apart from an assertion of a right, causing annoyance to the accused was one of the dominant intention of the complainant and his men in committing an act of unwarranted aggression upon the land possessed by the accused. In the light of the facts and circum stances of this case, I have no manner of doubt that they (the complainant and his men) have committed criminal trespass in respect of the land of the accused. The view that I have taken upon the facts of this case does not militate against the decision of the Privy Council in the case of Sinnasamy Selvanayagam v, The King (PLD 1950 PC 119), which, on appeal, had gone to the Board from Ceylon. This is a case in which the appellant and, before him, his ancestors had held, for a long time, the property in question, as tenants. It was contended that the appellant, at the relevant time, had lost title to the said property and that his continuance amounted to a criminal trespass. Sir John Beaumount, who delivered the opinion of the Board, has observed (at page 123 of the report) as follows : "The appellant, when in the witness‑box, was not asked whether he intended to annoy Rajapakse; nor were any questions put to him to suggest that he was on bad terms with Rajapakse, who was merely carrying out the orders of his superiors. The Courts in Ceylon thought that an intention to annoy Rajapakse must be inferred because such annoyance would be the natural consequence of the appellant's refusal to quit, and that the appellant must have appreciated this. Their Lordships are not prepared to hold that the appellant, in refusing to give up his two rooms, thereby no doubt increasing the difficulties of the Superintendent, intended to induce, or contemplated that he would induce, in the mind of the Superintendent an emotion so inappropriate to a Government officer, and so unprofitable, as annoyance ; but even if the appellant did anticipate that Rajapakse would be annoyed, it is perfectly clear from his evidence that his dominant intention was to remain on the estate where he and his family had lived for generations and not to find himself homeless. Entry upon land, made under a bona fide claim of right, however ill‑founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate, constituted no more than a subsidiary intent. Their Lordships are not in agreement with the contrary view which Mr. Justice Wood. Renton seems to have entertained in Supaiya v. Poonlah 14 N L R

475. They prefer the view of Dalton, A. C. J., in Wijeymanna v. Kandlah 35 N L R

244. The case of Forbes v. Rangasamy 41 N L R 294, on which the Courts in Ceylon relied is distinguishable, because in that case the accused did not give evidence as to his real intention and the Court thought that his conduct had been defiant." I may state here that the law with regard to criminal trespass as defined in the Ceylon Penal Code is the same as stated in section 441 of our Code. It would thus appear that, according to the Privy Council, the facts and circumstances of the aforesaid case did not justify an inference that the appellant intended to annoy a Government servant. This has been clearly stated in the following terms "Their Lordships are not prepared to hold that the appellant in refusing to give up his two rooms . . . . intended to induce, or contemplated that he would induce, in the mind of the Superintendent an emotion so inappropriate to a Government officer and so unprofitable as annoyance." It was, therefore, affirmatively held that the necessary intention was not proved ; and it is clear that, on such a view, there was an end to the prosecution case against the appellant. Their Lord ships of the Privy Council, however, go on to observe that even if it could be held by some process of ratiocination, that the appellant did anticipate that Rajapakse would be annoyed, it was perfectly clear from the evidence given by the appellant that the "dominant intention" was to remain on the estate where he and his family had lived for generations. This means that there can be no doubt that the real intention of the appellant was to continue to remain in a place where his family and ancestors had lived, so that he may not render himself homeless. This being his intention, as stated by him in the unchallenged evidence, which he had given, it could not be held that he intended to annoy the officer in question. Even if he was conscious of the fact that his act might annoy the officer, it had such a remote connection with his real purpose that he could not be taken to have intended to cause any annoyance. If any intention to annoy the said officer could, at all, be imputed to the appellant, it would be, under the circumstances of the case, at best mere subsidiary intention upon which a charge of criminal trespass could not be sustained. It is interesting to note that the Judicial Committee of the Privy Council did not express any dissent from the law which was laid down in the case of Forbes v. Rangasamy, in which, on similar facts, it was held by the Courts in Ceylon, that a person must be taken to have intended the natural and probable consequences of his act. Referring to the aforesaid case, the Board observed thus "The case of Forbes v. Rangasamy, on which the Courts in Ceylon relied is distinguishable because in that case the accused did not give evidence as to his real intention and the Court thought that his conduct had been defiant. There can, therefore, be no manner of doubt that in assessing the facts of the case before the Judicial Committee, the fact which dominated its mind was the unchallenged evidence led by the appellant that his intention was merely to continue to live in a land where his family and ancestors had lived, so that he and the rest of his family might not be rendered homeless. In Forbes's case, the accused did not give any such evidence and the conclusion reached therein was different from what was held in this case. This case, therefore, does not spell any qualification into the well -settled legal principle that a man is taken to have intended the natural and probable consequences of his act. On the facts of the case before it, the Board held that the intention to cause annoy ance to anybody was negatived by the unchallenged evidence of the appellant. The Board further proceeded to say that there could be no doubt that the real and dominant intention was to continue to live in the premises occupied by the members of the appellant's family, and, before them, by their ancestors. It has not been laid down that there cannot be more than one dominant or primary intention behind an act.

25. Without going into further metaphysical abstractions it may be pointed out that the guiding principle is that the Courts will look fairly and squarely into the facts of each case to decide a point like this. It is sufficient for me to state that, in the context of the facts of the case before me, one of the main intentions which prompted the act of aggressions committed by the party of the complainant was to cause annoyance to accused, although the immediate objective was to bolster up a false claim of right. The gist of the matter is the offensive manner in which the aggression was committed in the present case. Therefore, in this case, the presumption that the complainant and his men intended to annoy must prevail.

26. My conclusion would have been different if I held that the complainant had gone into the disputed land in assertion of a bona fide claim of right. Such assertion must be bona ;fide to take the act out of the mischief of criminal law. On the facts of this case, I have no hesitation to hold that the complainant has set up a mere colourable pretence to some sort of right in order to commit an act of aggression which would inevitably cause annoyance to the accused. In these circumstances, the intention to cause annoyance cannot be described as a mere subsidiary intention in committing the invasion upon the land possessed by the accused.

27. From what 1 have stated above, the conclusion is irresistible that the accused in this ease were protected by a right of private defence. I have only to add that I am in complete agreement with the statement of the law as to the right of private defence, as stated by Salahuddin Ahmad, J. Reference has been made in the opinion given by my learned brother Asir, J., to the provision of section 99 of the Penal Code which runs as follows ". . . There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities . . . ." In relation to a right of defending one's property, the protection o1 public authorities must, of necessity, refer to protection against the offences mentioned in section 97 of the said Code with a view to preventing the same.; but when such an offence or offences has or have already been committed, there is no question of seeking any protection against an act which is a fait accompli. In the case before me, had the accused come to know that the com plainant‑party intended to invade upon their land and if there had been a reasonable margin of time to take recourse to the protection of law, the accused would have been bound to seek it ; but when the complainant‑party had already trespassed into the land possessed by them, there would be no time to seek the pro tection as mentioned in section 99 of the Penal Code. The pro tection, of necessity, must be a protection against an invasion of the kind contemplated by the aforesaid section 97 of the Penal Code at a time when there is merely an apprehension of such an invasion ; secondly, it cannot be held, having regard to the distance of the Police Station from the place of occurrence, that while there was an aggression being committed on the land posses sed by the accused, they had sufficient time to take resort to the protection of law.

28. My learned brother Asir has taken the view that a right of private defence with regard to property would arise only when there is a serious loss or a threat to such loss in respect of the said property. In the opinion given by him, he has observed as follows "From the trend of the decisions discussed above it appears that in a case where criminal trespass in relation to an immov able property in the nature of a vacant arable land is said to have given rise to an occasion for the exercise of the right of private defence, there must be a reasonable apprehension of danger or serious or irreparable lass to such property, and unless it can be shown that there was no time in the circum stances disclosed to seek the protection of public authorities for putting a stop to the annoying activities leading to such criminal trespass, it should be held that the person claiming the right of private defence has failed to make out a case for the same under section 97 of the Penal Code."

29. But, none of the decisions which have been referred to by my learned brother Asir, J., supports the contention that a right of private defence of property arises only when a serious loss has ensued or would ensue in respect of the said property and not otherwise. In the cases which he has discussed, the right of private defence was justified on the ground that such a right was exercised with a view to prevent grave and irreparable loss. These cases are, however, no authorities for the converse proposition that such a right can be exercised only when there is a reasonable apprehension of "a serious or irreparable loss" to the property in question with regard to a property, section 97 of the Penal Code provides that whenever any of the offences specified in that section is committed or is about to be committed, a person to whom the property belongs has a right to defend against the commission of such offence or offences. In the case before me, the criminal trespass committed by the party of the complainant has not caused any irreparable damage to the land possessed by the accused, but nonetheless, it amounted to a criminal trespass. If the men of the complainant‑party were guilty of such a criminal trespass, then the accused had undoubtedly a right of defence against such a trespass, even though such trespass has not caused any loss, far less a serious loss, to the property in question.

30. In connection with the right of private defence claimed by the accused, my learned brother Asir has observed "If they claimed to get the protection of the said exception as provided in section 97 of the Penal Code the burden lay on them and the law entitles the Court to presume the absence of such circumstances unless proved." It is true that whenever an accused claims the protection of an exception to criminal liability, it is for him to establish such circumstances which will entitle him to claim such protection and, to this extent, it is correct to say that the burden lies on him ; but, with very great respect, there is neither any authority nor any principle in respect of the proposition that the Court is entitled to presume the absence of such circumstances if the accused has either failed to prove or has not proved such circum stances. There is no such presumption of "absence of such circumstances." In criminal law the onus of establishing all the ingredients, which would make a criminal offence, lies always on h the prosecution, and this burden never shifts upon the accused. On the contrary, there are authoritative decisions to the effect that, even in a case where an accused has failed to prove circumstances, which would entitle him to claim an exception, he may otherwise succeed in shaking the prosecution case, and that Court would thus be called upon to consider evidence and circumstances of the case and to give the accused the benefit of any doubt which he may raise against the prosecution case in his attempt to prove circumstances upon which he might have claimed an exception to criminal liability. See Woolmington v. The Director of Public Prosecutions (1935 A C 462), which is a decision of the House of Lords, Parbhoo and others v. Emperor (A I R 1941 All. 402), a decision of a Full Bench of the Allahabad High Court; Safdar Ali v. The Crown (PLD 1953 5 FC 93) and Muhammad Aslam v. The Crown (P L D 1953 FC 115).

31. In accordance with the conclusion at which I have arrived, the conviction of Isab under section 323 of the Penal Code must be set aside. Upon a similar consideration I have also refrained from altering the conviction of appellant Mahim Mondal from one under section 304 into that under section 323 of the said Code.

32. The result, therefore, is that the appeal is allowed and the rule is made absolute. The conviction of the appellant, Mahim Mondal, under section 304, Part II of the Penal Code; as well as the sentence of five years' rigorous imprisonment passed on him on that count, are set aside. The conviction of the appellant as well as all the accused persons under section 148 of the Code as also that of the accused Isab Mondal under section 323, and the sentences passed thereunder are also set aside. It is directed that the appellant Mahim Mondal be set at liberty forth with and so also the other accused persons, if not already released from jail. The bail bonds, if any, furnished by the said accused persons, are hereby cancelled. S. Q, Appeal allowed. Rule made absolute.