P L D 1959 (W (PLP)

Anis Yousuf for Appellant. A. H. Kureishi for Respondent. Date of hearing : 24th June 1959. This is an application in revision by Khadirn Hussain Shat against the conviction and sentence of 6 months imprisonment passed on him by the IInd Additional Sessions Judge, Sukkur by his judgment in appeal dated 6‑3‑

59. This appeal had bail filed by 7 persons along with Khadim Hussain against the judgment and sentence passed by the Sub‑Judge and F. C. Al., Rohri.

2. Seven persons including the applicant Khadim Hussain were prosecuted for offences under sections 323, 426, 147 and 148 P. P. C. On 20th October, 1957, there seems to have been a quarrel between the applicant Khadim Hussain and his companion Warial on the one hand and Gulan, Yakoob, Habibullah, and Imambux on the other near the shop of one Phaganmal in the bazar of Pirjo Goth. It appears that Khadim Hussain thought that he had been badly dealt with and therefore he collected a number of his friends and they all marched to the otak of Imambux where Imambux and a few other persons were sitting. Imambux having been warned by his son Azizullah that the party of Khadim Hussain was coming to thrash him, all these persons got inside the house of Imambux and locked it. It was alleged by the prosecution that Khadim Hussain's party gave hatchet and stick blows to the door of the house but it did not yield and that Imambux and others who had got on the roof threw stones from there as a result of which Khadim Hussain's party withdrew.

3. The learned trial Magistrate acquitted all the accused persons of offences under section 323 and 426 P. P. C., and convicted them under section 147 and 148 P. P. C. On appeal having been filed the learned IInd Additional Sessions Judge, though he was not satisfied with the finding of the Magistrate with regard to the absence of mischief and damage, remained content with maintaining the conviction of Khadim Hussain under section 147 P. P. C., while acquitting all the other 6 appellants. He held that the presence of Khadim Hussain was conclusively proved. That there was an unlawful assembly though he was not able to hold that the persons found guilty by the Magistrate had been satisfactorily identified. He observed that there was darkness and confusion at the time of the occurrence and it might be that the witnesses had made a mistake with regard to the identity of other appellants. He was however in no doubt that more than 5 persons were members of that unlawful assembly which included Khadim Hussain.

4. Mr. Anis Yousuf , the learned counsel for the applicants, has raised a short point and it is this. He says that the alleged object of this unlawful assembly was to cause hurt or mischief as provided by clause (3) of section 141 P. P. C., but he says that the accused were acquitted of the offences under sections 323 and 426 by the learned Magistrate and there was no appeal against this by the State. That being so, the conviction under section 147 is bad. He further contends that the common intention had not been proved. Now, with regard to the question of common intention, there is the finding of both the Courts that this band of 7 persons had gone to the otak of Imambux for the purposes of causing hurt and mischief. That finding is supported by evidence and I have even otherwise no doubt as regards the correctness of it. With regard to the other contention that the offence under section 147 has not been established, I agree with the learned counsel that that is so. In order that an offence under section 147 is established, force or violence has to be used by a member of the unlawful assembly in prosecution of they common object. In this case the learned Magistrate acquitted the accused of offences under sections 323 and 426 which must amount to this that actual force or violence was not used by any member of this unlawful assembly. Brut that does not conclude the matter. It has been established beyond reasonable doubt that there was an unlawful assembly with the common object stated above and that Khadim Hussain was a member of that unlawful assembly. That being so he was clearly guilty of an offence under section 143 P. P. C. I therefore alter the conviction of Khadirn Hussain from 147 to 143 P. P. C. The sentence of 6 months was awarded by the learned Sessions Judge under section 147 P. P. C., which is a much graver offence than that under section

143. In this case the applicant has already been in jail for about 9 weeks. His appeal was dismissed by the learned Sessions Judge and he was remanded to custody on 6‑3‑

59. The bail was ordered by this Court on 27‑4‑59, but Mr. Anis Yousuf states that security was furnished actually on 13‑5‑59 on which date the applicant was released. Having regard to the fact that I have altered the conviction from section 147 to Section 143 I feel that the ends of justice will be sufficiently met by reducing the sentence of the applicant from 6 months to the period already undergone. The applicant is on bail. His bail bond should be cancelled. With this modification the revision is dismissed. K. B. A./A. H.???????????????????????????????????????????????????????????????????????????????????? Order accordingly.