Agarwala, J.

[1] Eight persons Dwarka, Bhuiya Din, Inderpal, Ram Gopal, Mahadin, Gharibe, Chhanga and Sarju have appealed against their conviction under Section 402, I. P. C. and a sentence of two years' rigorous imprisonment. Of these Inderpal, Ram Gopal, Sarju, Chhanga and Dwarka were further convicted under Section 19(f), Arms Act and sentenced to rigorous imprisonment for one year and they have appealed against their conviction under that section as well. The charge under Section 19(f), Arms Act was tried by a jury, which returned a verdict of guilty.

[2] The prosecution case was that Mohammad Alam, Sub-Inspector, belonging to the investigation squad of the C.I.D., Lucknow, had gone in the morning of 7-10-1951, to Mohanlalganj for investigation of a case under Section 457, I. P. C. At about 6 p.m. he received information that some bad characters had assembled near the railway station. Immediately he went up along with a police party consisting of three Sub-Inspectors, 4 constables and three or four other people of the town. The railway station is at a distance of about two furlongs from the police station and in between the two, about a furlong and a half from the police station, there is an old dilapidated building called the 'Bardasht Khana'. As the party approached the Bardasht Khana, they heard whispering sound. The police party surrounded the place and challenged the inmates.

About 18 or 20 persons came out and fled in various directions. Eight of them were, however, arrested by the police party and these were the appellants. From the possession of Ram Gopal one country made pistol and some cartridges were recovered and from the possession of Inderpal also a country made pistol and some cartridges were recovered. Prom the possession of Sarju, Chhanga and Dwarka some cartridges were recovered. The police prosecuted the appellants on the allegation that they had collected at that place with the intention of committing a dacoity.

[3] The appellants denied the commission of the offences and gave various places as the place of their arrest, but admitted that all of them were arrested in the afternoon of the same day.

[4] In proof of the prosecution case five persons were produced: Babu, Narain and Sarda Bux Singh, Sub-Inspector Mohammad Alam and Sub-Inspector Mohammad Faruq.

[5] I have heard learned counsel in support of their appeals and gone through the record. It was urged that besides the two Sub-Inspectors, the other three witnesses were not at all independent witnesses. They were, as one could call them, 'police witnesses', because they had been previously convicted of some offence. Babu had been bound over under Section 110, Cr. P. C. Some discrepancies in the statements of these witnesses were also pointed out to me. It was further alleged that the first information report was not produced in this case.

To my mind none of these arguments has any validity in the present case. The arrest was made by a police party, because of a confidential information received by them that some bad characters had assembled. This was not an information of the commission of an offence and, therefore, it was not necessary that it should have been recorded under Section 154, Criminal P. C. When the persons were arrested and were found to be in possession of fire-arms, the case made out against them was one under Section 402, Penal Code. When the information was received in the first instance, it was merely a case under Section 109, Cr. P. C. In such a contingency the first information report was written out by the Sub-Inspector on his return after arresting them. This was tendered by the prosecution in evidence but it was not brought on the record because it was considered inadmissible.

[6] It was said that independent witnesses should have been taken by the police for the search of the persons of the appellants and that the witnesses Babu, Narain and Sarda Bux not being independent, the search was invalid. So far as the search of th