1969 P Cr (PLP)

Habibar Rahman Serang and others v. The State P L D 1960 Dacca 213 rel. B. N. Chowdhury for Petitioner (in Revision Case No. 273). A. K. M. N. Islam for Petitioner (in Revision Case No. 294 of 1967). Md. Matiur Rahman for Petitioner (in Revision Case No. 373 of 1967). These three revisional applications raise common questions of law, and for this reason, they have been heard together.

2. The petitioner in Revision Case No. 273 of 1967 was tried along with 49 others; the petitioner in Revision Case No. 294 of 1967 was put on his trial along with 49 others; the petitioner in Revision Case No. 373 of 1967 was tried along with 46 others on the report of one Sub‑Inspector of Police alleging that on 7‑6‑66 they formed an unlawful assembly at Abdul Ghani Road and tried to cause disturbance of public peace whereupon Mr. M. Isa, P. S. P., Deputy Director, Bureau of Anti‑Corruption, Dacca ordered them to disperse and that they disregarded that order and continued in the assemblies. The trials were held by Mr. A. Rahman, Magistrate, 1st Class, Dacca in the Ramana Thana premises on 8‑6‑

66. All the petitioners are said to have pleaded guilty. On acceptance of such plea the Magistrate convicted them under section 151 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for one month each. In appeal the learned Sessions Judge reduced the sentence to a fine of Rs. 30 each, or in default to simple imprisonment for 7 days each.

3. The first point canvassed on behalf of the petitioners is that the accusations as put to the petitioners under section 242 of the Criminal Procedure Code do not constitute an offence under section 151 of the Penal Code. The accusation run thus :‑ "On 7‑6‑66 last at 2 p.m. you formed an unlawful assembly along with others at the Abdul Ghani Road and thereby caused breach of peace and although Mr. M. Isa, P. S. P., Deputy Director, B. A. C. resisted your such action, you continued to be members of an unlawful assembly and thereby committed an offence under section 151 of the Pakistan Penal Code."

4. Section 151 of the Penal Code provides for punishment of any person who knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully comman ded to disperse. The explanation to this section makes it plain that if the assembly is unlawful within the meaning of section 141, the offender will be punished under section 145 and not under section

151. The essential ingredient of offences under sections 151 and 145 is that the accused is lawfully commanded to disperse after he joins or continues in an assembly of 5 or more persons or in an unlawful assembly as the case may be. If a person was not lawfully commanded to disperse he does not come within the mischief of section 151 or section

145. In the accusations in these cases it was not stated that Mr. M. Isa com manded the petitioners to disperse. Offering resistance is distinct from commanding to disperse. Thus the accusations, as they are, do not constitute an offence under section 151 of the Penal Code. For the same reason they do not also constitute an offence under section

145. If the petitioners formed an unlawful assembly then they could be punished under section

143. Unlawful assembly is defined in section 141 of the Code. The allegations against the petitioners and the accusations do not, however, reveal that the petitioners formed an unlawful assembly.

5. Another point urged on behalf of the petitioners is that in the present case trial was not held in the Court house but in thana premises and this caused miscarriage of justice and thus vitiated the trial. A Magistrate can in his discretion hold trial at any place other than the Court house but in that case, it is essential that he should pass a formal order declaring the place where the trial would be held. Unless a formal order is passed declaring that the trial would be held in any specified place, the accused persons are likely to be prejudiced inasmuch as, in that case they are deprived of the opportunity of having recourse to higher authority of redress if they feel aggrieved by such order. In this connection, the case reported in The King v. U Khemein (A I R 1940 Rang. 72) may be referred to.

6. Section 412 of the Criminal Procedure Code is a bar to an appeal where the accused person has pleaded guilty except as to the extent or legality of the sentence. The question that arises is whether the bar is absolute or whether a Court of appeal or the High Court in exercise of its revisional power can go into the question of legality of conviction. So far as the Court of appeal is concerned, section 412 makes it manifestly clear that there shall be no appeal except as regards the extent or legality of the sentence, or in other words, there can be no appeal against the conviction. The powers of the High Court are, however, wide enough to consider the legality of the conviction as well while exercising its revisional jurisdiction under section 439, Cr. P. C. This is clear from the very language of section 412 which lays down in an unambiguous language that there shall be no appeal except as to the extent or legality o the sentence. The section does not restrict the powers of the High Court to consider the legality of the conviction in exercise of its revisional power. This view is supported by the case of Krishna Chandra Singha v. Emperor (A I R 1943 Pat. 313) in which it was held that where in a particular case the powers of an appellate Court are restricted by section 412 the powers of the High Court in revision are not similarly restricted. The powers of the High Court in deal ing with the revision application are as ample as if an appeal on the merits has been entertain-able by the Sessions Judge and had been dismissed. It was held in the case of Emperor v. Nana Shahhu Sonavan and another (A I R 1943 Bom. 209) that an accused person who pleads guilty before a Magistrate and is convicted can contend in his application for revision that his conviction is illegal.

7. Another argument advanced is that in these cases the petitioners denied having pleaded guilty and that provision of section 243 of the Criminal Procedure Code has not been complied with. That section provides "inter alia" that if the accused admits that he has committed the offence of which he is an accused, his admission shall be recorded as nearly as possible in the words used by him. It has been submitted that the alleged admissions of the petitioners were not recorded as clearly as possible in their language. The record shows that a large number of accused persons, 144 in all, were put on their trial before the learned Magistrate and the accusations read out to the petitioners and the answers given by them appeared in carbon copy. It is understandable that the accusations were exactly the same in each case, but it is difficult to see how the answer would be in uniform and identical language. It appears that every accused stated "guilty, pleaded pardons" which may "I am guilty, I plead for pardon's. Considering drat the trial was held by the Magistrate in the thana premises, where all the accused appear to have been rounded up and a drift not only of the accusations but also of answers of the individual accused was made and this was copied with the rise of carbon paper. This lends credence to the contention of the petitioners that they did not actually plead guilty but were asked to sign the papers which they had to do in the thana premises in what may be termed a mass trial. In this connection reference may be made to the case of Habibur Rahman Serang and others v. The State (P L D 1960 Dacca 514) where it was held that a conviction without taking of any evidence purporting to be based on a plea of guilty cannot be sustained when the accused denied having pleaded guilty and the said plea, is not found recorded in accordance with the provisions of section 243 of the Code of Criminal Procedure which provides for recording of the admission of the accused as nearly as possible in the words of the accused. This is a salutary provision to enable not only the trying Court but also the superior Court to know that the accused actually guilty to the offence charged. In the instant case, the provisions of section 243 was not complied with and for this reason also the conviction of the petitioners is unsustainable.

8. In the result, the Rules are made absolute. The conviction and sentence in each case are set aside.

9. The stay orders relating to payment of fines are made absolute. Rules made absolute. Convictions set aside.