Law:

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SALEEM AKHTAR, J.--This appeal arises from the judgment passed by the Special Court (Suppression of Terrorist Activities) Karachi, whereby the appellant has been convicted under section 13B(b) of the Pakistan Arms Ordinance 1965 and sentenced to four years' rigorous imprisonment and a fine of Rs.1,000 and in default of payment to suffer further R.1. for six months. The facts are that on 27-10-1988 a police party was patrolling near Wahaj Memorial Hospital when it received information that two persons armed with fire-arms were moving about in the area. The police party apprehended the appellant and from a cloth bag which he was holding recovered a sten gun which was loaded with magazine containing four live rounds of sten gun. The recovery was made in the presence of Ghulam Sarwar and Muhammad lqbal at about 5-30 p.m. and the F.1.R. was lodged by the SIP Bahadur Ali at Jauharabad Police Station at about 18.55 hrs. The investigating officer obtained the finger-prints of the appellant which were sent alongwith the sten gun to the Finger Print Expert Abdul Rauf who confirmed that the finger-prints found on the sten gun are the prints of left thumb impression of the appellant. After completing the investigation the case was challaned before the Court on 7-11-1988. The learned trial Court convicted the appellant by judgment, dated 17-1-1989. 1n appeal filed by the appellant the case was remanded with the direction that the accused may be asked specific question with regard to his willingness to examine himself as his own witness under section 340(2) , Cr.P.C. and if he is willing to do so then his evidence may be recorded accordingly. However, in case he declines then the matter may be reheard on the basis of evidence already recorded. The learned trial Court complying with the direction of the High Court has passed the impugned judgment. It may be mentioned that the appellant had refused to give any statement on oath.

The prosecution had examined four witnesses. S.I. Bahadur Ali P.W.2 was incharge of special investigation team of the Central District. On 27-10-1988 while on patrol duty alongwith police party at about 5-30 P.M. on receiving information they apprehended the appellant and another person in presence of two mashirs at Yasinabad Chowrangi. The appellant was carrying a bag which contained sten gun loaded with magazine containing four live cartridges. A mashirnama was prepared (Exh3A) which was signed by Ghulam Sarwar and Muhammad Iqbal, the mashirs. The sten gun was put in cloth bag and sealed and sent to the police station. He then came and lodged the F.I.R. and obtained the finger-prints of the appellant. In cross-examination he stated that he picked up the mashirs from the locality on the spot who were found there. P.W.3 Muhammad Iqbal who was a mashir for the recovery has stated that after visiting his friend in the hospital while he was coming out at about 5-00 p.m. a police officer called him near Yasinabad Chowrangi where two persons including the appellant were arrested. From the cloth bag in possession of the appellant sten gun with four live cartridges in the magazine were recovered. A mashirnama was prepared and the gun was sealed in the bag. He resided 5 to 7 miles away from Wahaj Hospital. He also confirmed that the other mashir had also signed the mashirnama. The prosecution, however, examined only one mashir. Abdul Rauf P.W.4 who is a Finger Print Expert testified that the finger-print of the appellant on Exh.3D was identical with the ringer print on the transparency lifted from the sten gun and such certificate was issued by him (Exh.3D-1). The appellant in his statement under section 342, Cr.P.C. denied that the sten gun or the magazine were recovered from his possession. He stated that the police had taken his finger and thumb-impression on Exh.3-D. He further stated that he was arrested on 17 10-1988 and not on 27-10-1988 and nothing was recovered from him. One Muhammad Rafiq was examined as a defence witness who stated that the appellant was known to him for 7/8 years. On 27-10-1988 at about 9 o'clock in the morning he saw the appellant being taken away on a scooter by two policemen. In cross-examination he stated that it was by chance that he happened to go on a panshop on the day of incident. He is a resident of New Karachi and Federal `B' Area is 8 / 9 miles away from New Karachi. One Naeem Ahmad was examined as a Court witness. He is an Inspector in Police and stated that he had examined the sten gun in this case and found that it contained a finger-print. He had lifted that finger-print and prepared a transparency Exh.3D-2/A. Then the transparency and the sten gun were handed over to DSP Abdul Rauf who examined the finger-print and transparency.