1969 P Cr (PLP)

Md. Abdul Huq Mia for Petitioner. Abul Hussain for the Opposite‑Party. Rules were issued in the two cases calling upon the Deputy Commissioner of Mymensingh and the opposite‑party to show cause why the orders of convictions and sentences passed against the respective petitioners should not be set aside.

2. It will be convenient to deal with the two cases separately as the convictions are for different offences and the applications do not raise identical questions of law although some of them are common.

3. The petitioners in this case have been convicted under sections 447 and 144, Pakistan Penal Code and sentenced to pay a fine of Rs. 50 each or in default to suffer rigorous imprisonment for 21 days each under the former section, no separate sentence having been passed under section

144. This application raises only one important point of law, namely whether on the charges laid against the petitioners and the evidence on record the con viction of the petitioners under sections 144 and 447 of the Penal Code are legal.

4. The petitioners were charged under section 144 for being members of an unlawful assembly being armed with deadly weapons and they were charged under section 447 for having committed criminal trespass by erecting huts upon Plot No. 3725 which was in possession of P. W. 1 Kutubuddin.

5. The charge under section 144 of the Penal Code should state the common object of the assembly. The omission to state the common object in the charge does not, however, vitiate a conviction if there is evidence on record to show what the com mon object was. All that can be gathered from the evidence in this case is that the petitioners entered upon the land alleged to have been in possession of the complainant and erected two huts in spite of protest by his brother P. W.

2. It has been sought to be shown that commission of an offence of trespass under section 447 of the Penal Code was the common object of the alleged unlawful assembly. At this stage, it is necessary to consider whether the petitioners actually committed criminal trespass on the land in possession of the complainant. A charge under section 447 should specifically state the intent with which the entry is made, whether intent is to commit an offence or to intimidate, insult or annoy the person in possession of the property. The name of that person should also be stated. The charge under section 447 in the present case does not state the intent which is alleged. This charge is thus bad in law and it vitiates the trial so far as the offence under section 447 of Penal Code is concerned.

6. Another noticeable fact is that the complainant claims to have been in constructive possession of the land and according to the prosecution case the occurrence took place in his absence. This being so, it cannot be said by any stretch of imagination that the intent of the petitioners was to intimidate, insult or annoy the complainant nor is there any material to indicate that the petitioner's intent was to commit an offence. The trial Court has also given no finding as to the petitioner although such a finding is essential. All that the Magistrate stated in this judgment was that there was ample and sufficient evidence in support of the claim of the prosecution that the complainant was in possession of the land and also that the accused persons trespassed upon the land and erected two huts on it. That is not sufficient for convicting the accused under section 447 without recording a finding as to intent.

7. In the circumstances of the case, it must be held that there was no criminal trespass by the petitioners, and that being so, the question of their forming unlawful assembly did not arise.

8. The Rule issued in this case is made absolute. The conviction and the sentence of the petitioners are set aside. The order of stay of realisation of fine is made absolute. Rule made absolute.