William Comer Petheram, C.J. and Rampini, J.
1. On the 17th of April last the Deputy Magistrate of Barrisal framed a charge against five persons, by which he charged them with having committed rioting on the 27th of March at Naratham, by forming an unlawful assembly, and assaulting Faisuddi and Mofizuddi, by throwing brickbats in prosecution of that common object. Witnesses were called and examined for the prosecution on the 17th and 18th, for the defence on the 25th, and on the 30th the Deputy Magistrate gave his judgment, by which he convicted four out of the five accused, and sentenced them to four months' rigorous imprisonment, and to execute bonds to keep the peace for one year. The judgment is long, rather rambling, and undoubtedly, does not, as it should have done, find what was the common object which made the assembly, of which the prisoners were members, an unlawful one, and after reading it carefully several times, I am by no means sure that I understand now what he thinks the common object was, and I must add that for this reason the judgment is extremely defective. The prisoners appealed to the Judge, who on the 12th of May gave his judgment affirming the conviction and sentences, and I am compelled to say that his judgment is even more defective than that of the Deputy Magistrate, as he not only does not himself find what was the common object of the assembly, but throws doubts on what the Deputy Magistrate may have intended as a finding on the question. In this state of things Mr. Apcar has applied to as for a rule to show cause why the conviction and sentence should not be set aside by this Court, under the powers created by Section 439 of the Code of Criminal Procedure, on the ground that the charge does not specify any common object, and that neither of the judgments finds that any common object existed, or what it was, if it did exist. We think that we ought not to grant a rule for such a purpose, unless we should be prepared, on the materials on which we grant it, to make it absolute, or, in other words, to acquit the prisoners, if no cause were shown against it, and we certainly should not be prepared to acquit these persons, merely in consequence of the defects which I have pointed out in the charge, and in both the judgments; because it must be evident that notwithstanding them there may be ample material, in the evidence on this record, on which we should ourselves he prepared to convict the prisoners of the offence of rioting, and to inflict the same punishment, which has been inflicted upon them by the Deputy Magistrate. We accordingly invited Mr. Apcar to place the evidence before us with the object of showing us that, upon it, the prisoners ought not to be convicted of rioting. He has done so, to some extent, and we have ourselves since examined it, and so far from thinking that we ought to acquit the prisoners, we think that there is ample evidence here, which we see no reason to disbelieve, that they were members of an assembly, the common object of which was to prevent, by force, traders from resorting to the new hat, that the assembly in pursuance of that object did make an attack upon the complainant, who was going to the new hat, and afterwards engaged in a battle with the partizans of the owners of the new hat who came up to assist him, and moreover that two of the accused actually took part in the first assault on the complainant, and that they all took part in the fight which followed.
2. This being the state of the evidence, we think that notwithstanding the defects in the charge, and in the judgments, which are very grave, and which call for a distinct expression of disapproval on our part, there is no necessity in the interests of justice for our interference, and there will be no rule.