P L D 1957 (W (PLP)

BACHAL, J.

The appellants have been convicted by the learned Additional Sessions Judge, Jacobabad, appellants Nazroo, Attal and Habib under section 148, P. P. C. and the rest under section 147, P. P. C. and all the appellants under sections 302, P. P. C., 326, P. P. C., and 323, P. P. C:, read with section 149, P. P. C. and were sentenced each to 6 months R. I. under section 148, P. P. C. 3 months R. I. under section 147, P. P. C. and transportation for life under section 302, P. P. C., 5 years R. I. under' section 326,. P. P. C. and 1 month R. I. under section 323, P. P. C. 'read with section 149, P. P. C. In addition' the appellants Attal and Nazroo were each sentenced- to one year R. I. under section 19-E, Arms Act. The sentences were ordered to run concurrently. The, question of enhancement of sentence is also before us. The incident is alleged to have- taken place on the 26th May 1955, at Bipa.hari time at Kacho near well Massu Saghar in Taluka Kashemore. Sahibdino Sher, a member of a nomad tribe, went to the police station Ghotki 8 miles from the scene. I-its first information report was recorded at 9 P.M. to the effect that he was originally resident of village Peroz Shar, Taluka Ubauro where they had their flock of sheep. About 3 months after, he, his nephew Malhan and Ghousbux and cousins Bero, Mehrab, Suhrab, Janib and Murid came with their flock of sheep and resided in Kacha near village Ubauro. Lakhan Shar who resided in Kacha at the well of Masu Saghar came to them about 7 days before the incident and invited all of them at the Khairat (charity feast) of his father on 2'6th May 1955. On that day, he, Malhan Ghousbux, Bero, Mehrab, Suhrab, Janib and Murid went together at noon time to Lakhan Shar's house for the Khairat. When other Shars of Beradiri were going after taking meals they were also leaving after taking meals. At Bipahari time the appellants and Sanjar who are related to them and were inimical to them because of dispute over matrimonial affairs suddenly came upon them. At the instigation of Makhno who had a lathi, Nazroo and Attal, took out their pistols from the fold of their trousers and fired Mehrab and Ghousbux who fell down. Mehrab died after Sanjar struck him hatchet blow. Habib struck Bero with hatchet on the arm. Nazroo and Attal struck Malhan, with hatchets and Makhano struck Murid with a lathi. The appellants ran away in the forest with their weapons. The motive disclosed was dispute over matrimonial affairs. Sahibdino gave his evidence as stated in the first report. In addition he amplified the motive. He states that Sukhio his cousin had lodged report with the police against the appellants and Sanjar absconding accused for having beat him and snatched the cows that he was taking to the pond. The case was compounded on Sanjar's daughter being given in marriage. But the appellants said that they should dissolve the marriage or they would kill them. Bero and Malhan struck the appellants with lathis. The evidence of Ghousbux. Malhan Bero, Murid and Lakhan was to the same effect. The appellants were not invited by Lakhan. They denied that saw Sanjar at the Khairat and assaulted him and a fight ensued between them and Sanjar and his relations. The medical evidence shows that Mehrab had an injury 10" x 6" x 1J" on the head caused by a hatchet and an injury on the chest caused by a pistol. Death was due to shock and heamorrhage resulting from the injury on the head causing fracture of the skull and cutting of the brain. Grievous hurt with hatchet and fire arm was caused to Ghousbux and grievous hurt with hatchet to Malhan and Bero and simple hurt with lathi to Murid. Appellants Habib and Nazroo were arrested at Kashemore on the 31st May 1955. The appellant Attal was also arrested on that day and appellant Makhno was arrested on the 1st June. All the four appellants had simple injuries with lathis. The version of the appellants teas bare denial of the prosecution case. Their explanation for the injuries was that the police had beat them but no question was put to any police officer in this respect. Attal stated that his brother was declared Karo with Mehrab's wife for which Wadero had got Sang (girl) from them. Thus they admitted the motive that they had to give a girl in exchange. The learned judge accepted the prosecution version as cogent and true. We see no reason to disagree and in fact we agree with the estimate of the oral evidence arrived at by the learned Judge as regards the guilt of the appellants. The appellants were arrested on the 31st May 1955 and the case was committed on 4th April 1956 and they were convicted on 17th December 1956. They have been under-trial prisoners for about 2 years and two months in jail after conviction. The Government have not appealed for enhancing the sentence. By reason of this delay we do riot see any reason for enhancing the sentence. The result is that the conviction of the appellants are maintained. The learned judge has passed separate sentences for b rioting and hurt which were not legal. The Calcutta High in Nilmon's case (16 Cal. 442), held that separate sentences passed upon the persons for rioting and grievous hurt were not legal where it was found that such persons individually did not commit any act which amounted to voluntarily causing hurt but were guilty of that offence under section 149, P. P. C. This view was upheld by their Lordships of the Privy Council Barendra Kumar Ghosh's case (52 Cal. 197). Though separate convic tions can be recorded for the offences of rioting and hurt, separate sentences should not have been passed. The appellants are accordingly sentenced to transpor tation for life under section 302, P. P. C., 5 years R. I. under section 326, P. P. C. and one month R, I. under section 323, read with section 149, P. P. C. The appellants Attal and Nazroo are in addition sentenced to one year R.1. under section 19-E, Arms Act. The sentences are to run con currently. With this modification the appeal is dismissed. The notice for enhancement of sentence is discharged. K. B. A. Appeals dismissed with certain modification.