2002 PLP 1187 (MLD)

Heard.

2. As a result of the case bearing F.I.R. No. 117 of 2001 dated 5‑9‑2001 under sections 7‑A/20/91, Arms Ordinance, Police Station Bunglow Acha, Tehsil Rojhan, District Rajanpur, Baddal petitioner stands involved in the allegation that on 5‑9‑2001 when he was apprehended in the presence of Ali Baig and Akbar private witnesses by a police party. Kalashnikov an illicit arm having ten bullets therein was recovered from his possession. So, at the instance of Abdul Sattar, S.‑I. The abovesaid case was registered.

3. Learned counsel for the petitioner argued that both the recover witnesses have sworn their affidavits declaring therein the innocence the petitioner; that section 7(a) of the said Ordinance is not attracted and that actually the provisions of section 13 of Arms Ordinance XX of 1965 are attracted; that the recovered weapon was not sealed in presence of the witnesses at the spot so that it could be sent to the expert for determination as to whether it was actually a fire‑arm; that the petitioner has been involved in `this false case due .to enmity and that he is not previous convict, therefore, it is a case of further inquiry, which have been opposed by the learned State Counsel who after perusing the register of F.I..Rs. brought by the police employee submitted that challan has been sent in the Court and that the punishment provided for the offence even under the Arms Ordinance is uptil seven years, therefore, it is not a fit case for bail.

4. There is a negligence on the part of the State that simple register F.I.R. has been brought, anyhow, it looks from the contents of the F.I.R. that the alleged kalashnikov was taken into possession through a memo. but it was not sealed nor it is mentioned that this kalashnikov is to be sent to the expert for its determination as an arm. So, long such an article is declared to bean arm by an expert it cannot be argued that the article in question is a fire‑arm or an illicit arm as defined in the Arms Ordinance XX of 1965 and Surrender of Illicit Arms Act, 1991. Therefore, even at bail stage the report of expert is essential for examination and if the report of the expert as documentary evidence is not produced at the stage of trial it may be believed that the prosecution is not in a position to prove its case. Mere appearance of an article cannot determine it to be an arm because the pistol made of plastic is a toy and if this is the position then neither the provisions of Arms Ordinance nor of Acts as mentioned above would attract because no one can be convicted of keeping a toy like pistol or kalashnikov.

5. The perusal of the register of F.I.Rs. reveals that there is reference of section 7(a) of Illicit Arms Ordinance (XXI of 1991) in Column No.4 and same has been written by the learned counsel who drafted this petition whereas the exact provision is Surrender of Illicit Arms Act, (XXI of 1991), therefore, in case of mistakes at all stages the correction is allowed.

6. The point for examination is as to w ether the provisions of Surrender of Illicit of Arms Act, 1991 are attracted or this case would under section 13 of the Arms Ordinance No. XX of 1965. It is obvious from the provision of section 4 of the Surrender of Illicit Arms Act, 1991 that the offence is constituted where the person in possession of any illicit arms does not surrender such arms till such time as is notified by the Federal Government. It is quite astonishing that the cases are being registered under the above-said provision of law but no Notification is being produced, the consequence of which, is not only the grant of bail but there can be a dent in the prosecution case at the stage of trial because it can be argued that the prosecution failed to prove that the illicit arms was in possession of the person concerned prior to the specified date and actually when no Notification would be produced this provision of law would go along-with wand within a moment.

7. In fact in absence of Notification this provision of law is being applied by the Police because under section 7(a) there is no other punishment except imprisonment for life and forfeiture of property both movable and immovable while under section 7(b) the punishment shall not be less than ten years and under section 7(c) the maximum punishment is up to 14 years and it shall not be less than three years However, the prosecution case is under section 7, clause (a) which deals with the sub‑clauses (1) to (3) of clause (a) of section 2 and if for the sake of arguments the kalashnikov is taken as an automatic weapon then clause (4) of section 2 would attract and the punishment provided under section 7(b) would be passed whereas under sections 13 and 13(a) of Pakistan Arms Ordinance of 1965 is imprisonment for life or with rigorous imprisonment for a term which is not less than seven years. Meaning thereby there is leniency in the punishment under this Ordinance and perhaps despite its correct application as being a general law is being avoided with mala fide intention. Even otherwise if the lower limit of punishment is up to seven years then it may be argued that the offences punishable with death or imprisonment for life or imprisonment for ten years would fall in the prohibitory clause of section 497, Cr.P.C. 7‑A. Petitioner is in the Jail and the orders, dated 6‑11‑2001 and 8‑9‑2001, passed by the learned Additional Sessions Judge and the Judicial Magistrate respectively do not disclose the recording of the prosecution evidence after submission of the challan and there is a reference in the order, dated 8‑9‑2001, that two private witnesses deposed at the bail stage that their thumb‑impressions were obtained on a blank paper, therefore, in view of above ,circumstances, it is a case of further inquiry. 7‑B. As a consequence of it Baddal petitioner is admitted to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial court.

8. While accepting the bail bonds a learned trial Court shall again remind the petitioner about the next date, on which, he would be appearing in the Court so that his absence could be avoided and that the petitioner shall continue appearing before the learned trial Court on each and every date of hearing till the disposal of the case. This petition is thereby accepted. H.B.T. /B‑85/L. Bail granted.