‫اﻟﺮﺣﯿﻢ‬ ّ ‫اﻟﺮﺣﻤﻦ‬ ّ ‫ﺑﺴﻢ ﷲ‬

َ ‫ﻠﯽ َرﺳُۡﻮِﻟِہ اۡﻟ‬

‫ﮑِﺮۡﯾِﻢ‬ ٰ ‫ﺼﻠﱢﯽ َﻋ‬
َ ُ‫ﻧَۡﺤَﻤُﺪٗه َو ﻧ‬

UNLAWFUL ASSEMBLIES
AND MAINTENANCE OF
PUBLIC PEACE AND SECURITY

[Justice ® Dr. Munir Ahmad Mughal]

Introduction

An exhaustive and comprehensive

procedure has been prescribed by the
general law of procedure applicable in
Pakistan called the Code of Criminal
Procedure, 1898 in its chapter IX which
consists of sections dealing with:

1
  Assembly to disperse on command of
Magistrate or police.1
 Use of civil force to disperse.2
 Use of Military force.3
 Duty of Officer Commanding troops
required by Magistrate to disperse
assembly.4
 Power of commissioned military
officers to disperse assembly.5
 Power to use military force for public
security and maintenance of law and
order.6
 Protection against prosecution for
acts done under this Chapter (Ch. 9). 7
 Definitions (of four terms, namely,
(a) armed forces, (aa) civil armed
forces, (b) officer and (c) soldier.) 8
1
Section 127 of the Code of Criminal Procedure, 1898.
2
Section 128 of the Code of Criminal Procedure, 1898.
3
Section 129 of the Code of Criminal Procedure, 1898.
4
Section 130 of the Code of Criminal Procedure, 1898.
5
Section 131 of the Code of Criminal Procedure, 1898.
6
Section 131-A of the Code of Criminal Procedure, 1898.
7
Section 132 of the Code of Criminal Procedure, 1898.
8
Section 132-A of the Code of Criminal Procedure, 1898.

2
WHAT IS AN UNLAWFUL
ASSEMBLY?
The words “unlawful assembly” is not
defined in this chapter 9 of the Code of
Criminal Procedure, 1898. It is also not
defined in the definition clause (i.e.,
section 4 of this Code). However, sub-
section (2) of section 4 of this Code
leaves no ambiguity that all words and
expressions used herein defined in the
Pakistan Penal Code, and not
hereinbefore defined, shall be deemed to
have the meanings respectively attributed
to them by that Code.
Unlawful assembly has been defined in
section 141 of the Pakistan Penal Code
in the following words:
“An assembly of five or more persons is
designated as “unlawful assembly” if the

3
common object of the persons
composing such assembly is:
First, to overawe by criminal force or
show of criminal force, the central or any
|Provincial Government or Legislature or
any public servant in the exercise of the
lawful power of such public servant: or
Second, to resist the execution of law, or
any of the legal process; or
Third, to commit any mischief or
criminal trespass, or other offence, or
Fourth, by means of criminal force or
show of criminal force to any person to
take or obtain possession of any property
or to deprive any person of the
employment of a right of way, of the use
of water or other incorporeal right of
which he is in possession or enjoyment,
or to enforce any right or supposed right;
or

4
Fifth, by means of criminal force, or
show of criminal force, to compel any
person to do what he is not legally bound
to do or to omit to do what he is legally
bound to do.
Explanation: An assembly which was not
unlawful when it assembled, may
subsequently become an unlawful
assembly.”

WHAT IS THE ESSENCE OF AN

OFFENCE UNDER SECTION 141
PPC?

In the case cited as AIR 1953 Supreme

Court 364 the honourable Supreme Court
observed that the essence of an offence
under section 141 PPC is the
combination of several persons, united
for committing an offence and that
consensus of purpose is itself an offence

5
distinct from the offence which these
persons agreed and intend to commit. 9

HOW AND WHEN A LAWFUL

ASSEMBLY BECOMES
UNLAWFUL SUBSEQUENTLY?

This has been explained in the

explanation given under section 141
PPC. It is the purpose that makes an
assembly lawful or unlawful. When the
object is common and becomes unlawful
and to be carried out forth with the
assembly becomes unlawful. The
number of the assembly must be five or
more persons.
In the case cited a PLD 1963 Supreme
Court 109 the honourable Supreme Court
observed: Under section 141 PPC, an
assembly may become unlawful at some
9
See also AIR 1987 Supreme Court 826 and 1993 Cr. L.J. 1387 (Supreme Court ).

6
stage after the time of assembly, but to
establish such a development it would be
necessary to prove a circumstance
applicable to all the persons assembled
which influenced them all in one
direction, namely, that of using criminal
force or committing mischief, criminal
trespass, or other offences or of resisting
the execution of law or legal process.

WHAT IS THE DIFFERENCE

BETWEEN COMMON INTENTION
AND COMMON OBJECT?

In the above cited case the honourable

Supreme Court of Pakistan also made
distinction between the common
intention and common object. It
observed:
“ Where aggressive action of a police
officer produced an instant reaction to

7
himself personally but only in a small
group persons who were in the front of
the assembly, and the case can be made
one of unlawful assembly only if it be
held that although these persons were not
gathered for an unlawful assembly
purpose, as defined in the section, yet in
their reaction to the police officer’s
behaviour, they develop a common
object, namely to commit an offence, A
joint action by a number of persons is not
necessarily an action performed with a
common object. It may be performed on
the spur of the moment as a reaction to
some incident and such a case would fall
more correctly within the rule of
constructive liability laid down in section
34 of the Pakistan Penal Code which is
based on “common intention”, a
condition of mind which is more directly
and approximately connected with the

8
action than is with the formation of
“common object”. This may appear more
clearly where it is recalled that the law
makes specific provision for dispersing
an unlawful assembly. Such an incident
is not applicable to the joint-ness of
action envisaged in section 34 PPC.
Which consist of translation of intention,
common held in to effect. The persons,
who have been held to have joined in a
common assault to the police officer, in
the present case, can be more precisely
held to have acted with common
intention than in furtherance of common
object.”10
The Judicial Committee of the Privy
Council has held in |Mahboob Shah’s
case11 that proof of preconcert is
necessary in order to bring a criminal act
performed by several persons within the
10
PLD 1963 Supreme Court 109.
11
72 IA 148

9
ambit of section 34 PPC, but in a later
case that of Mamand v. Emperor12 it was
clarified that the existence of such pre-
concert should be established even by
proof of acts performed by individuals
after the completion of the main crime.

DISTINCTION BETWEEN
SIMILAR OBJECT AND COMMON
OBJECT?

All members of the assembly must share

the common object.
A common object is not the same object
or similar object.
The same object will become common
object only when it is known to and
shared by all the members having it. The
judicial precedent or authority of this
12
AIR 1946 Privy Council 45.

10
view is available in the case cited as AIR
1951 Nagpur 47 (1).
In a Calcutta case a division bench of
that High Court had observed: “A similar
object is obviously not the same thing as
a common object. Several persons
fishing in a river for their own respective
purposes cannot be said to be animated
by a common object though their objects
may be similar.”13

WHAT IS AN ILLEGAL OBJECT?

The illegal object which the members

have i common must be one of those
specified in the section. If the object does
not fall under either of those clauses it is
not illegal and if the object is not illegal,
their can be no unlawful assembly,
Whatever may have been the number of
13
[(1888) ILR 15 Cal 388 (DB) at p. 402].

11
men meeting or the fear of disorder and
tumult. [9 QBD 308].

WHO CAN COMMAND AN

UNLAWFUL ASSEMBLY TO
DISPERSE?

Section 127 of the Code of Criminal

Procedure, 1898 is the empowering
section. It empowers only any officer
incharge of a police-station may
command an unlawful assembly to
disperse. It is a statutory duty. The word
“may” shows that the exercise of this
power is not mandatory. It is
discretionary.
This authority is given to a Police officer
in charge of a police station.
The police officer is not to exercise it
unless the circumstances mentioned in
the section 127 Cr. P. C. are considered

12
by him as existing. It is a question of fact
which must be proved by independent
evidence.14
The legality of command depends upon
the conduct of the assembly preceding
the command and not on what followed
it.15

WHAT IS THE CONSEQUENCE OF

DISOBEDIENCE OF AN ORDER
UNDER SECTION 127 CR. P. C. ?

|If disobedience is by unlawful assembly

the offence is chargeable under section
145 PPC and if it is an assembly which is
other than an unlawful assembly then the
offence will fall under section 151 PPC.

14
AIR 1922 Lahore 133.
15
AIR 1925 All 165 (DB); AIR 1933 Nagpur 277.

13
WHEN AND HOW THE CIVIL
FORCE IS TO BE USED?

Section 128 Cr. P. C. comes into play

when the command to disperse by an
officer in charge of a police-station is
disobeyed by the unlawful assembly he
may use force and require the assistance
of any male person not being an officer,
soldier, sailor or airman in the armed
forces of Pakistan.
Only male persons from public may be
directed to come and provide forced to
get the compliance of the command.
If there is no success in dispersing , he
may arrest and confine or prosecute
under section 145 PPC.
As to the degree of force required to be
used by an officer incharge of a Police
Station depends upon his action in good
faith. He is competent to command

14
dispersal of unlawful assembly under
section 127 and seeking civil aid under
section 128 and his actions are protected
under section 132 of the Code of
Criminal Procedure, 1898 from being
himself prosecuted in case he can show
good faith in his actions. There is judicial
precedent available in the case cited as
AIR 1921 Cal 697.

WHEN ARMED FORCES MAY BE

CALLED FOR AND BY WHOM?

Section 129 of the Code of Criminal

Procedure, 1898 empowers the police
officer of the highest rank not below an
ASP or a DSP who is present to cause an
unlawful assembly to be dispersed by the
armed forces. This power is again
discretionary and not mandatory. This
power if not available to any police

15
officer. It is restricted to the police
officer of the highest rank not below an
ASP or DSP available there.

WHAT STEPS ARE REQUIRED BY

SECTION 130 CR. P. C.?

1. When unlawful assembly cannot

be dispersed by the police officer in
charge of a police station by civil aid
a requisition is to be made for use of
military force by ASP/DSP or higher
officer whoever is available at that
time.
2. Requisition so made is to be
obeyed by the officer of the armed
forces in quelling disorder. This
obedience is not discretionary.
3. To Obey is mandatory but in
which manner he has the discretion
and again in the matter of how much

16
 force is to be used the law has
prescribed that in doing so he shall
use as little force and do as little
injury to person and property as may
be consistent with dispensing the
assembly and arresting an detaining
such persons.
The relevant provisions of law
authorise the use of force including fire
arms for protecting persons and/ or
property against various forms of
violence and the degree of force which
may be lawfully used depends upon the
situation faced by those who are put in
charge of enforcing a lawful command
and suppressing lawlessness. But the
force to be used must be proportionate
to the circumstances of the case ands to
the end to be obtained.

17
WHAT IS TO BE DONE AND BY
WHOM AND TILL WHAT TIME
WHERE NO POLICE OFFICER OF
THE HIGHEST RANK AND NOT
BELOW ASP OR DSP IS
AVAILABLE?

In such a situation section 131 of the

Code of Criminal Procedure, 1898 comes
into play.

Section 131 reads as under:

131. Powers of Commissioned military
officer to disperse assembly. When
public security is manifestly endangered
by any such assembly, and when no
police officer of the highest rank not
below an ASP or DSP can be
communicated with, any commissioned
officer of the Pakistan Army may
disperse such assembly by military force

18
and may arrest and confine any person
forming part of it, in order to disperse
such assembly or that they may be
punished according to law; but if, while
he is acting under this section, it
becomes practicable for him to
communicate with a police officer not
below the rank of an ASP or DSP , he
should do so, and shall thence forward
obey the instructions of such police
officer as to whether he shall or shall not
continue such action.

UNDER WHICH PROVISION OF

LAW POWER TO USE MILITARY
FORCE FOR PUBLIC SECURITY
AND MAINTENANCE OF LAW
AND ORDER IS AVAILABLE AND
TO WHOM AND TO WHAT
EXTENT?

19
This power is available under section
131A of the Code of Criminal Procedure,
1898.
It is available to the Federal Government
and to the Provincial Government with
the prior approval of the Federal
Government.
The prerequisite are that the Provincial
Government must be satisfied that for
public security and protection of life and
property, public peace and the
maintenance of law and order, it is
necessary to secure the assistance of
armed forces or civil armed forces.

The next step is to get prior approval of

the Federal Government to make a
requisition.
This requisition will go to any officer of
the armed forces or civil armed forces
not below the rank of a JCO or

20
equivalent to render the assistance with
the help of the forces under his
command.

Such assistance shall include the exercise

of powers specified in sections 46 to 49,
53, 54, 55 (a) (c), 58, 61, 64 to 67, 102
and 103 for a particular area defined in
the notification for a limited period of
thirty days extendable to another period
of thirty days, as circumstances warrant.

The condition is that such powers shall

not include the powers of a Magistrate.

JCO is bound to obey the requisition or

direction, as the case may be, and in
doing so may use such force as the
circumstances may require.

21
JCO shall follow the restrictions and
conditions laid down in the Code.

WHAT PROTECTION IS
AVAILABLE AGAINST
PROSECUTION FOR ACT DONE
UNDER CHAPTER 9 OF THE CODE
OF CRIMINAL PROCEDURE, 1898
?

Section 132 of the Code of Criminal

Procedure, 1898 is the relevant section.
Every statement of law in this section
starts with the word “NO”. This serves
the purpose of giving stress.

Section 132 reads as under:

132. Protection against prosecution for
acts done under this Chapter.
No prosecution against any person for an
act purporting to be done under this

22
Chapter shall be instituted in any
Criminal Court, except with the sanction
of the Provincial Government; and
(a) no Magistrate or police officer
acting under this Chapter in good
faith,
(b) no officer acting under section
131 in good faith,
(c) no person doing any act in good
faith ,in compliance with a requisition
under section 128 or section 130 or
section 131A, and
(d) no inferior officer, or soldier, or
sailor or airman in the armed forces
doing any act in obedience to any
order which he was bound to obey,
shall be deemed to have thereby
committed an offence.
Provided that no such prosecution shall
be instituted in any Criminal Court
against any officer or soldier or airman

23
in the armed forces except with the
sanction of the Federal Government.

WHAT IS THE DIFFERENCE

BETWEEN THE PROTECTION
GIVEN BY SECTION 79 of the
Pakistan |Penal Code AND
PROTECTION GIVEN BY
SECTION 132 of the Code of Criminal
Procedure, 1898 ?
Sec. 79 PPC is a substantive general law
on the criminal side in Pakistan while
section 132 Cr. P. C. is a procedural
general law on the criminal side in
Pakistan.

The protection granted by section 79

PPC is a protection against conviction
and applies only when all facts are
known i.e., when the trial is over. On the
other hand section 132 Cr. P. C. operates

24
even before the trial begins. In other
words the protection given by section
132 Cr. P. C. is one against the trial. 16

WHAT IS GOOD FAITH?

These words have not been defined in

the Cr. P. C.
Hence according to Section 4(2) of Cr. P.
C. the definition given in the PPC will be
applicable in the Code in respect of the
words “good faith”. The definition of the
words good faith is given in section 52 of
PPC.

Section 52 PPC states that nothing is said

to be done or believed in “good faith”
which is done or believed without due
care and attention.

16
AIR 1933 Madra 268; AIR 1963 Kerala 7.

25
In the case cited as 1989 SCMR 1366 the
honourable Supreme Court of Pakistan
observed: A thing shall be deemed to be
done in “good faith” where it is in fact
done honestly, whether it is done
negligently or not.

WHAT IS PURPORTING TO BE
DONE?

Where an offence is purported to have

been committed in official capacity there
must be reasonable connection between
the act complained of and the duty of
the officer as a public servant, so that, if
questioned the officer can reasonably
profess to have done the act in exercise
or in purported exercise of his official
duty. The act complained of may have
exceeded the limit of the official duty,
but it still remains to be in exercise or

26
purported exercise of his official duty, if
the connection between the act and the
official duty is a reasonable one and not
merely a fanciful one, that is, that the
official position should not be used as a
mere cloak to defend the act complained
of. 17

Bibliography
1. Constitution of the Islamic
Republic of Pakistan, 1973.
2. Pakistan Penal Code, 1860.
3. Code of Criminal Procedure,
1898.
4. All India Reporters
5. PLD
6. SCMR
7. Criminal Law Journal.

17
PLD 1964 Supreme Court 266; PLD 1960 Supreme Court 53.

27
8. Criminal Trial, [Justice ® Dr.
Munir Ahmad Mughal], Muneeb
Book House, Lahore, 2011

28