1. The appellants, Syed Mohammad Hasnain and his son-in-law, Syed Jafer Mehdi, were convicted by Mr., R.C. Verma, Sessions Judge, Bara Banki, on 20th April 1948, under Section 143, Penal Code, and sentenced each to: rigorous imprisonment for six months.
2. It would appear that in the village of Rudauli in Bara Banki district resides one Ibtihajuddin. The appellants are his next-door neighbours. In front of their houses is a plot of land about 40' x 25' which has been the bone of contention between the parties. One party after another sought permission from the Notified Area for constructions on the land. Eventually on 10th June 1941, Ibtihajuddin obtained permission from the Notified Area. The appellant, Syed Mohammad Hasnain, who is a retired Sub-Inspector of Police, was not satisfied and sent complaints to the District Magistrate and the Sub-Divisional Magistrate. The Tahsildar, Mr. Har Shankar Singh, reached Rudauli on 12th July 1941 and tried to bring about some settlement. Apparently this was not successful. On 13th July 1941, at about 11 P.M., Ibtihajuddia started construction on the land with the aid of four petromax lamps and about 20 or 30 men. His case was that the two appellants armed with guns and the tahsildar armed with a revolver and about 20 other men armed with lathis appeared on the scene and the tahsildar fired into the air and they tried to stop him and they asked him not to make constructions but he refused, that one Bajrang Bahadur, a servant of the zamindar of the land, arrived and asked; the tahsildar not to interfere with the construction, that this man was handled roughly by Syed Mohammad Hasnain and that Syed Mohammad Hasnain then ordered an assault upon the complainant, his labourers and masons and in order to save themselves he and his men used force in self-defence, that the appellants and his companions retreated towards Jafer Mehdi's house and the two appellants went up to the roof and from there fired on the complainant and his party killing one Bashir. The police hearing of this trouble, promptly arrived on the scene and later the complainant and some of his party men were prosecuted and convicted for offences under Sections 148 and 332, Penal Code, find they were eventually acquitted by the Chief Court. The defence of the two appellants was that the land in dispute belonged to them, that the complainant and his party men tried to demolish his door opening on the disputed land and also his wall and entered his house, removed some furniture and destroyed it, that he sent for the tahsildar, who was staying there, for protection, that he arrived and declared the complainant and his party an unlawful assembly, 'that one Tafazzul Rasul ordered an assault on the appellants party and that the appellants' party was severely injured and in self-defence and for maintenance of peace the tahsildar ordered firing and then Bashir was killed. The learned trial Judge has not believed the prosecution story as given and has held that the two appellants had nothing to do with the firing and that they did not commit any act whatever, but 'they certainly formed an unlawful assembly the common object of which was to compel by show of criminal force (calling of a Magistrate and police), the complainant to omit to do what he was legally entitled to do, viz., to enclose the disputed land.'
Accordingly he convicted the two appellants under Section 143 only and sentenced them to rigorous imprisonment for six months.
3. It has now been contended that from the Finding of the learned Judge himself it is clear that nothing illegal was done by the appellants and they could not possibly form an unlawful assembly and have, therefore, been wrongly convicted. I have heard the learned Counsel and am (satisfied that the appeal must be allowed.
4. The learned Judge has clearly held:
I, therefore, hold that the firing was resorted to by the tahsildar and, under his order, by the head constable and not by the accused.
Only Chhuttan, on the side of the complainant, received a scratch. On the other hand, on the side of the accused, no fewer than 14 persons received 28 injuries. I am, therefore, not prepared to believe that the attack with lathis was opened by the accused and their party. Solitary scratch received by Chhuttan could be due to something other than a lathi blow. I am, therefore, not satisfied that the accused or their party indulged in any lathi attack at all. The lathi attack was opened by Ibtihajuddin's men, because they found unlawful obstruction to the lawful work they were engaged upon, or perhaps because Bajrang Bahadur was roughly .handled by Mohammad Hasnain.
Admittedly 12 persons (the two accused and 10 non-police men) received injuries on the side of the accused. They certainly formed an unlawful assembly the common object of which was to compel by show of criminal force (calling of a Magistrate and police), the complainant, to omit to do what he was legally entitled to do, viz., to enclose the disputed land.
The tahsildar and the constables cannot, by any Stretch of imagination, be regarded as part of unlawful assembly, because the tahsildar was acting in the bona fide belief that he should prevent a breach of peace, and he resorted to firing only when the complainant's party opened an attack.
No act is, no doubt, proved against any member of the accused's party, but merely being a member of an unlawful assembly is per se an offence under Section 142, Penal Code, and the accused having been members, rather, the leaders, of the unlawful assembly, are punish-able under Section 143, Penal Code.
5. Now it will be seen from the above passage from the judgment of the learned trial Judge that according to him the appellants formed an unlawful assembly because their common object was to compel the complainant by show of criminal force to omit to do what he was legally entitled to do. The learned Judge has himself pointed out that the criminal force, in his opinion, was 'calling of a Magistrate and police.' This is inconsistent with what he says in the succeeding paragraph because he clearly holds there that these two persons, the head constable and the tahsildar, cannot be said to be a part of an unlawful assembly. The very fact that the appellants sought protection of the authorities would show that they were not acting in any illegal or unlawful manner when they sought their assistance. The force used or the show- of force made by the tahsildar Magistrate cannot be deemed by any stretch of imagination to be the force used or show of force made by the appellants. Under these circumstances it is impossible to say that the appellants and others who were with them had any common object to compel the complainant and his party by criminal force or show of criminal force to omit to do what they were legally entitled to do. It is also noteworthy that the learned Judge has nowhere given the finding that the appellants and others who shared the common object were five or more in number. In one paragraph of his judgment, he says that 12 persons including the two accused and 10 non-police men were injured. But this statement is obviously inaccurate as in another part of the same judgment he has said that 14 persons on the side of the appellants received injuries. I find that the two appellants and only two of their servants received injuries and the other persons who received injuries were in fact the tahsildar and his peon, the head constable and 7 other constables. So it would appear that if there were any people -to support the two appellants they were only two of their servants to do so. Certainly four persons could not form an unlawful assembly. Under the circumstances there was no unlawful assembly within the meaning of Section 141, Penal Code, and the conviction under Section 143, Penal Code is, therefore, illegal. Accordingly I allow the appeal, set aside the convictions and sentences and direct that the appellants need not surrender to their bail.