D.P. Gupta, J.
1. This appeal has been filed against the order passed by the learned Additional Sessions Judge, Sri Ganganagar convicting the appellant Akhtar Ali under Section 3 read with Section 14 of the Foreigners Act, 1946, and also under Rule 3/6 of the Indian Passport Rules, 1950. Akhtar Ali was sentenced to undergo three years 'rigorous imprisonment under Section 3/14 of the Foreigners Act, while a sentence of three months' rigorous imprisonment and a fine of Rs. 100/- was imposed upon him for the contravention of Rules 3/6 of the Indian Passport Rules and it was also ordered that in the absence of payment of fine, he shah undergo, further rigorous imprisonment for for. 20 days. It may be mentioned here that along with Akhtar Ali, another person Mohammed Shafi, was also similarly convicted and sentenced for committing offence under the I foreigners Act and Indian Passport Rules. However, the present appeal has been filed by Akhtar Ali alone.
2. The prosecution case in brief is that on the night intervening between August 15 and 16, 1975, a party of Company A of the 11th Border Security Force laid an ambush near the Indian border adjoining poles 318/1 and 318/2. At about 12.45 p.m. Tejsingh and Mansingh, who were members of the ambush party, saw live, persons coming from towards Pakistan and when-the intruders were about 20 or 25 steps away, the aforesaid two army personnel made an alarm and gave the sign of 'thumb'. Thereupon, one of the five persons who were coming from across the border opened fire and the army' personnel, who were members of the ambush party, also fired back in self defence, as a result of which, one of the intruders was killed. Out of the remaining four persons, two were seen running away towards Pakistan while the other two were apprehended and arrested on the spot. A first information report was lodged at the police station Sri Karanpur on August 16, 1975 and after investigation, a challan was filed against the two arrested persons, Akhtar,' Ali and Mohammed Shafi in the court of the Additional Sessions Judges Sri Ganganagar. Charges were framed against the aforesaid two accused persons under Section 307/34 IPC and Section 3/14 of the foreigners Act and also under Rule 3/6 of the Indian Passport Rules. As the accused persons denied' having committed 'any offence, they were tried by the learned Additional Sessions Judge. Seven witnesses were examined on behalf of the prosecution and thereafter the accused persons were examined under Section 313, Cr.P.C. The case of Akhtar Ali appellant was that he 'was mat arrested at the Indian Border but that he was staying in the town of Sri Raranpur on 18-8-75 in connection with his 'gur' business with Bishambhar 'Bania' and that while he was. walking in the town, he was falsely implicated by the police. The Other accused Mohammed Shafi admitted that he was a resident of Pakistan and his case, was that lie entered India because he lost his way. The learned Sessions Judge accepted the prosecution story in respect of the fact that the two accused persons were found, entering into India from towards Pakistan border and that they had committed contravention of the provisions of the Foreigners Act and the Indian Passport Rules. But in respect of the commission of offence under, Section 307/34 I.P.C., the appellant was given benefit of doubt and was acquitted.
3. Learned Counsel for the appellant has argued that the appellant was a resident of a place within India, namely village Rasulpur Dabheri of Muzaffarnagar district in the State of Uttar Pradesh and as he was an Indian. National, there was no question of his committing an offence tinder Section 3/14 of the Foreigners Act. Before the learned Sessions judge, two voters lists in Urdu, purporting to be copies of voters list relating to village Rasulpur Dabheri were produced on behalf of the appellant in order to prove that the appellant was an Indian national and a resident of the aforesaid village. However, the learned Sessions Judge did not take into consideration the aforesaid two lists on the ground that they were not certified by any competent authority. Similarly, a certified copy of Khatauni was also produced before the learned Additional Sessions judge but he, held that it was insufficient to prove that the appellant was an Indian national. Under Section 9 of the Foreigners Act, the burden Mas cast upon the appellant to prove that he was an Indian national and as he failed to produce any cogent evidence of his being resident of village Rasulpur within India, the learned Sessions Judge came to the conclusion that the appellant was a Pakistani and therefore a Foreigner.
4. In this appeal, the appellant has produced a copy of the voters list of the year 1968 in respect of village Rasulpur Dabheri relating to Legislative Assembly Khatoli constituency No. 407. The copy of the voters list has been certified to be true copy of behalf of Gram Panchayat Rasulpur Dabheri. Similarly, another copy of voters list of the year 1973 relating to the same village has also been produced. After the appeal was part heard for some time, learned Counsel for the appellant, submitted an application under Section 391, CrPC, praying that certain important documentary evidence which the appellant has been able to collect may also be allowed to be produced, besides the two voters' lists which had already been produced by him at the time of the admission of the appeal. The documents which are now sought to be produced in evidence include a passport issued by the Assistant Secretary to the Government of Uttar Pradesh, Home Police (C) Department, Lucknow, in the name of Akhtar Ali of village Rasnlpur Dabheri of District Muzaffarnagar. Another document which is now sought to be produced is a post office savings bank pass book in the name of Akhtar son of Aslam resident, of village Rasnlpur Dabheri, District Muzaffarnagar. The two voters lists, which arc sought to be produced pertaining to the 1968 and 1973 Assembly elections to Kharoli constituency of Uttar Pradesh, as also the passport and the savings bank pass book may have important bearing on the question as to whether the appellant is a national of India. The learned Additional Sessions Judge had earlier declined to take into consideration the Urdu copies of the voters lists produced before him on the ground that the) were not certified to be true-copies by same competent authority. The Hindi copies of the voters' lists which have now-been produced before this Court as well as the passport and the savings bank pass-book are relevant to the question involved in the present case and it would be in the interest of justice to admit such documents in evidence. In the circumstances of the case, it would be proper to remand the matter back to the Sessions Judge, Sriganganagar, with the direction that he may permit the appellant Akhtar Ali to tender such of the documents hi evidence which have been produced by the appellant in this Court and he may also take such other evidence as he may think proper in the circumstances of the ease arid there-' after he should redecide the case afresh, so far as Akhtar Ali appellant is concerned.
5. The appeal is allowed, the order passed by the learned Additional Sessions judge, Sriganganagar, dated July 16, 1976 is set aside so far as it relates to Akhtar Ali appellant and the case is remanded to the learned Sessions judge, Sriganganagar, with the aforesaid directions. The documents produced by the appellant in this appeal shall also be remitted to the learned Sessions judge, Sriganganagar along with the record of the trial court, so as to facilitate their being tendered into evidence by the appellant before the Sessions Court. The record of the case may be sent back immediately.