MOHAMMAD HASNAIN Vs. REX

JUDGEMENT

(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 1918, under Section MS, 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 4o' s 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 I9dl, 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. liar Shankar Singh, reached Budauli on 12th 3uly 1941 and tried to bring about some settlement. Apparently this was not successful. On 13th July 19J1, at abont 11 P. M., Ibtihajuddin started construction on the land with the aid of four petromax lamps and about 20 or 80 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 construe tion, 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, (hat the appellants and his companions retreated towards Jafer Mebdi's house and the two appellants went up 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, and 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 pro-section, that he arrived and declared the complainant and his party an unlawful assembly, that one Tafazzul Itasul ordered an assault on the appellants' party and that the appellants' party was severely injured and in solf-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 complain-ant 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 con-vacated. I have heard the learned Counsel and am satisfied that the appeal must be allowed.