A.N. GROVER, J.

(1) HAZARA Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under S. 148 of the Indian Penal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22/07/1964. Hazara Singh and Bhajan Singh were also charged under S. 307, Indian Penal Code, while the other four were charged under S. 307, read with S. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder.

(2) HAZARA Singh and Bhajan Singh were further tried on a charge under S. 25 of the Indian Arms Act. The learned Sessions Judge found that all the six persons were proceeding towards Pakistan in order to smuggle six bags containing 40 kg. of cardamom each. Hazara Singh and Bhajan Singh were armed with a rifle and a pistol respectively and when challenged by the police party they fired shots from their weapons at the police party in their attempt to murder them in pursuance of the common object of them all and as such they were guilty of an offence under S. 148 of the Indian Penal Code. They were convicted and sentenced to one years rigbrous imprisonment on that count. Hazara Singh and Bhajan Singh were found guilty of the offence under S. 307 of the Indian Penal Code while their co-accused were found guilty of the offence under S. 307 and 149, Indian Penal Code, and each one of them was sentenced to rigorous imprisonment for a period of five years and payment of a fine of Rs. 500.00. The sentences were to run concurrently. Bhajan Singh and Hazara Singh were further found guilty of the illegal possession of firearms under S. 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each.

(3) ON appeals to the High court the conviction of the aforesaid persons was upheld but the sentences of Bachan Singh, Jarnail Singh, Baj Singh and Balwant Singh were reduced to three years rigorous imprisonment. All the convicted persons have filed appeals to this court (Cr. As. No. 139-141 of 1968) by special leave. These shall stand disposed of by this judgment.

(4) THE prosecution story was that Inderjit Singh P. W. 1 who was posted as Deputy Superintendent of Police P. A. P. Border, Khem Karan, had received information on 21/07/1964, that a party of smugglers would be smuggling some goods to Pakistan during the night. He organised a raiding party consisting of Sub-Inspectors Ajit Singh P. W. 15, Agya Ram P. W. 12, A. S. Is. Darshan Singh, Nand Singh and Mulakh Raj, Head Constables Surjit Singh P. W. 3 and Ajaib Singh P. W. 13. The entire raiding party was divided into four groups. Each group was headed by one of the officers including Inderjit Singh D. S. P. At about midnight the police party noticed some persons coming from the side of village Lakhna by the Katcha path with some mares. The path led to Pakistan. It was a moonlit night but was cloudy at that time. It is unnecessary to go into the details which will be presently noticed of how the firing of the shots took place by the accused persons and how they were identified and arrested. Four of them were taken into custody at the spot but Hazara Singh and Bhajan Singh escaped on their mares. They were arrested later and on their disclosure a rifle and a revolver were recovered. No one was injured and although some empty cartridges were found but no attempt was made to find the bullets which are alleged to have been fired by the party of the appellants.

(5) THE evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh