This appeal is directed against the judgment of Additional Sessions Judge, Lahore, dated 31-3-1967, whereby the learned Additional Sessions Judge convicted Kala appellant under section 27 read with Martial Law Regulation No. 40 and sentenced him to undergo rigorous imprisonment for one year.
2. The brief facts are that on the night between 11/12-7--1962, employees of Sutlej Rangers noticed eight persons proceeding towards Indian border while they were holding Nakabandl near Chandial. The employees of Sutlej Rangers were divided into two groups. One was being headed by Mohammad Aslant Khan (P. W. 2) while the other by Azeem Ullah (P. W. 3). Mohammad Aslam Khan (P. W. 2) challenged those persons, who were proceeding towards Indian border and those persons opened fire at Mohammad Aslant Khan and his companions, who also returned the fires. Seven of these persons succeeded in running away but the appellant was apprehended at the spot. Twelve tins of menthol were recovered from his possession vide memo. Exh. P. B. The appellant was challaned after investigation.
3. The prosecution examined three witnesses in support of the case. Muhammad Aslant Khan (P. W.
2) is the material witness in this case. He deposed that a secret information tied been received that some persons were busy in smuggling goods out of Pakistan to India. He was busy in Nakabandi near village Chandial alongwith other employees of Sutlej Rangers. Azeem tillah was incharge of the other group. The spot was at a distance of six furlongs from Indian border. Gul Wali Constable noticed eight persons including the appellant going towards Indian. Border. A challenge was thrown but those eight persons started firing. The witness further stated that he and his companions also returned the fires in self---defence. Seven persons made good their escape while the appellant was apprehended at the spot and twelve tins of menthol were recovered from his posses--sion. Memo. Exh. P. B., was prepared in respect of twelve tins of menthol. Azeem Ullah (P. W. 3) corroborated the statement of Mohammad Aslant Khan (P. W. 2) by stating that on hearing the exchange of fires, he rushed towards the spot and when he reached at the spot, he found the appellant in the custody of Mohammad Aslam Khan (P. W. 2) and twelve tins of menthol had been recovered from his possession. He further stated that he wrote ruqqa and sent it at Police Station, Barki, for the registration of the case. Nabi Bakhsh, Sub-Inspector (P. W. 1) investigated the case and challaned the appellant.
4. The learned counsel for the appellant urged the following points:--
(i) That original ruqqa sent by Azeem Ullah (P. W. 3) to Police Station, Barki, was not produced in Court and the case of the appellant was badly prejudiced. Formal F. I. R. Was also not produced in Court and instead, its copy was produced. AIR 1922 Pat. 535 was referred.
(ii) That the Martial Law had been withdrawn and thus, the case shall be deemed to have been withdrawn.
(iii) That no independent witness was produced in support of the state--ments of Mohammad Aslant Khan and Azeem Ullah.
5. I do not find any force in -either of the contentions raised by the learned counsel for the appellant. Azeem Ullah (P. W. 3) had sent ruqqa at the Police Station for, registration of the case.
The case was registered on the basis of that ruqqa. It was first information report. The investigation commenced on the receipt of that ruqqa. Absence of the F. I. R. Deprives the accused of his right to cross-examine the first informant on its basis. Trial would not be vitiated for the reason that the first information report was not proved in accordance with law. Copy of the F. I. R., containing neither signatures nor thumb-impression of the informant cannot be taken into consideration. F. I. R. Is not a substantative piece of evidence. I can be used only for the purpose of corroborating the statement of the informant or for contradiction purposes. Although it was the duty of the prosecution to produce original ruqqa of Azeem Ullah in Court, its non-production would not vitiate the proceedings. In support of my view, I refer case titled Rahman and others v. The State (PLD 1968 Lah. 464 I fail to appreciate tic contention oaf the learned counsel for the appellant that since the Martial haw had been lifted, the case should also be deemed to have been withdrawn. When once the provisions of Martial Law Regulations were contravened, the trial would held even if the Martial Law is subsequ--entry withdrawn.
No independent corroboration was required in this case. Mohammad Aslam than (P. W. 2) was a disinterested person. He had no grudge or grouse against the appellant He apprehended the appellant at the spot and recovered twelve tins of menthol from his possession. I have no reason to disbelieve the statements of Mohammad Aslam Khan (P. W. 2) and Azeem Ullah (P. W. 3). The statements of these two witnesses were not seriously challenged in cross-examination. Where an accused does not cross-examine the prosecution witness, he shall be deemed to have accepted his evidence.
The appellant denied the prosecution allegations. He explained that he had gone to his native village Pada in order to recover Rs. 100, which was the balance of the sale price of his house and on the morning of 12-2-62, he left village Pada for village Sandke to put timber fear the construction of his house at Julio, but can the way, ire was apprehended by Mohammad Aslam Khan P. W. And involved falsely in the case. He produced Barkat A.I and Shanras lain in his defence. The statements of the two defence witnesses cannot be relief upon for the reasons that they were introduced at the late stage of the case and the appellant bad not named them in his statement made before the trial Court. The appellant had not mentioned in his statements` that he lead sold his house to Barkat A.I and had gone there to recover the balance. Barkat A.I and Shamas Din contradicted each other. The former stated that the appellant had spent tare night with him and both of them had slepton the same place while the latter stated that the appellant had spent the night at the house of his brother Ghulam Mohammad. No reliance can be placed on the statements of the two defence witnesses.
6. The case stood proved against the appellant and he was rightly convicted. The death sentence was provided for the breach of Martial Law Regulation No. 27. The trial Court read taken a very lenient view and had awarded only a sentence of one year. The appellant did not deserve any leniency in the matter of sentence as the allegations were of serious nature and he was found guilty of smuggling tins of menthol out of Pakistan h to India. I do not feel inclined to reduce the sentence of the appellant for the reason that the appellant faced the trial for a period of five years and his appeal remained pending for a period of about seven years.
7. With these observations I dismiss the appeal of Kala and maintain the impugned judgment. The appellant was released on bail. He shall be to arrested and committed to jail for serving the remaining period of imprisonment.