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Criminal Appeal No. 192 of 1967, decided on 26th June 1974.

‑‑ Ss. 154 & 155‑Neither ruqqa forming basis of F. I. R. produced before Court nor F. I. R. proved according to law‑‑Non‑production of such ruqqa, held, would not vitiate proceedings.

Rehman and others v. The State P L D 1968 Lah. 464 rel.

‑‑ Proceedings under Martial Law‑Contention that since Martial Law had been lifted, cases under Martial Law should also be deemed to have been withdrawn‑Held, had no force‑Once provisions of Martial Law Regulation contravened trial would be held even if Martial Law is withdrawn.

‑‑‑ Cross‑examination‑Prosecution witness not cross‑examined by accused‑His evidence deemed to be accepted.

F. E. Jaffary for Appellant.

Ch. Muhammad Awan for A.‑G. for the State.

Date of hearing : 26th June 1974.

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 11/12‑2‑1962, employees of Sutlej Rangers noticed eight persons proceeding towards Indian border while they were holding nakabandi near Chandial. The employees of Sutlej Rangers were divided into two groups. One was being headed by Muhammad Aslam Khan (P. W. 2) while the other by Azeem Ullah (P. W., 3) Muhammad Aslam Khan (P. W. 2) challenged those persons, who were proceeding towards Indian border and those persons opened fire at Muhammad Aslam 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 menthal 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 Aslam Khan (P. W. 2) is the material witness in this case. He deposed that a secret information had 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 Ullah 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 menthal were recovered from his possession, Memo. Exh. P. B. was prepared in respect of twelve tins of menthal. Azeem Ullah (P. W. 3) corroborated the statement of Muhammad Aslam 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 Muhammad Aslam Khan (P. W. 2) and twelve tins of menthal 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, A. I. R., 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 Muhammad Aslam 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 investiga tion 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 substantive piece of evidence. It can be used only for the purposes of corroborating the statement of the informant or for contradictions 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 Rehman and others v. The State (P L D 1968 Lah. 464).

I fail to appreciate the contention of the learned counsel for the appel lant that since the Martial Law had been lifted, the case should also be deemed to have been withdrawn. When once the provisions of Martial s Law Regulations were contravend, the trial would be held even if the Martial Law is subsequently is withdrawn.

No independent corroboration was required in this case. Muhammad Aslam Khan (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 menthal from his possession. I have no reason to disbelieve the statements of Muhammad 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 12‑21962, he left village Pada for village Sandke to buy timber for the con struction of his house at Jallo, but on the way, he was apprehended by Muhammad Aslam Khan P. W. and involved falsely in the case. He produced Barkat Ali and Shamas Din in his defence. The statements of the two defence witnesses cannot be relied upon for the reasons that they were introduced at the late stage of the case and the appellant had not named them in his statement made before the trial Court. The appellant had not mentioned in his statement that he had sold his house to Barkat Ali and had gone there to recover the balance. Barkat Ali and Shamas Din contradicted each other. The former stated that the appellant had spent the night with him and both of them had slept at the same place while the latter stated that the appellant had spent the night at the house of his brother Ghulam Muhammad. 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 con victed. The death sentence was provided for the breach of Martial Law Regulation No. 27. The trial Court had 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 of and he was found guilty of smuggling twelve tins of menthal out of Pakistan 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 re‑arrested and committed to jail for serving the remaining period of imprisonment.

Appeal dismissed.

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