1. SH. RIAZ AHMAD, J.--- The appellant was tried by a Judge, Special Court constituted under the Suppression of Terrorist Activities Act, 1975 on the charge under section 13/XX/65 of the Arms Ordinance.
2. Vide judgment, dated 16th of June, 1991, the learned Judge found the appellant guilty on the aforesaid charge and accordingly, the appellant was convicted and sentenced to undergo rigorous imprisonment for a term of three years. He was given benefit of section 382-B, 'Cr.P.C.
3. Aggrieved by his conviction, the appellant has preferred this appeal which shall be disposed of through this judgment.
4. The brief facts giving rise to the prosecution case are that on 4th of August, 1988, a police encounter took place, about which, a report was sent to the Police Station Eminabad. On the receipt of the said complaint, the police party reached the spot and one again another encounter took place but with the help of the police officials, the appellant was encircled and arrested and stengun P.1 was recovered which was taken into possession vide memo. Exh.PA. Attested by Muhammad Akram (H.C.) P.W.1 and Zakar Hussain, A.S.I. P.W.2. Jamal Din Constable was given up as unnecessary. The police party who encircled and apprehended the appellant consisted of above-- mentioned two police officials alongwith other police officials but at the trial, only Zakar Hussain, A.S.I., P.W.2 and Muhammad Akram P.W.1 attesting witnesses of the recovery were produced by the prosecution.
5. The complaint with regard to this case was written by Zakar Hussain A.S.I., P.W.2 and it was sent to the police station where formal F.I.R. Exh.P.D. Was drawn by Talib Hussain, A.S.I. P.W.3.
6. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the evidence on the record.
7. The recovery in this case has been proved by the testimony of Zakar Hussain P.W.2 and Muhammad Akram P.W.1. They were cross-examined at length but their testimony could not be shaken. The Court also summoned Fire-arm Expert Mazhar Ali C.W.1 who deposed that the weapon recovered was automatic stengun falling within the mischief of Amendment introduced under the Arms Ordinance and triable by the Court constituted under the Suppression of Terrorist Activities Act, 1975.
8. The learned counsel for the appellant has criticized the prosecution evidence and stated that it consisted of the testimony of police witnesses, therefore, the same should not be relied upon. The learned counsel has next contended that when the weapon had been recovered from the appellant, four or five persons had come to the spot and, therefore, it was incumbent upon the prosecution to have made them to join the recovery. It is further submitted that no weapon was recovered from the spot and, therefore, the arrest and the recovery are doubtful. It is further contended that in a case registered under section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the appellant has been acquitted and therefore, the acquittal of the appellant falsifies the prosecution case. It is also contended by the learned counsel that violation of section 103, Cr.P.C. Has taken place and, therefore, the recovery is not genuine.
9. After having heard the learned counsel, we are of the view that all the contentions raised by the learned counsel are devoid of substance. As far as the non-production of witnesses from the public is concerned, the record reveals that 4/5 persons were gathered at the spot after the recovery. The weapon was recovered in an encounter and, therefore, how could they be made to join the recovery and further more, the prosecution is not bound to produce all the witnesses. As far as the violation of section 103, Cr.P.C. Is concerned, the contention has no force because the recovery was not made in pursuance of the search and it was made at the spot and the police officials had no animosity with the appellant so as to falsely implicate him to face trial on the aforesaid charge.
10. As far as the acquittal of the appellant in a case of Harabah registered under section 17, Offence Against Property (Enforcement of Hudood) Ordinance, 1979 is concerned, we are afraid, we cannot go into the contents of the judgment passed in that case. We can only take note of the fact that appellant was acquitted in a particular case and the acquittal in the aforesaid case would not shake the foundation of the present case registered against the appellant under the Arms Ordinance.
11. The evidence produced in this case inspires confidence and we have no manner of doubt that the recovery was not genuine in this case.
12. Lastly, the learned counsel contends that the appellant has undergone about 15 months and, therefore, in this case, the sentence already undergone would meet the ends of justice. We have considered this aspect of the case but we are afraid that it is not the case of that type in which the sentence requires reduction. Hence we do not find any merit in this appeal and the same is hereby dismissed. However, we reiterate that the appellant will be entitled to the benefit of section 382-B, Cr.P.C.