P L D 2002 Peshawar 82 (PLP)

SHAH JEHAN KHAN, J.‑‑The petitioner being charged under section 7 of the Surrender of Illicit Arms Act, 1991 vide F.I.R. No.332 of 2001 dated 6‑7‑2001 registered at Police Station Thall, District Kohat was refused the concession of bail by the forums below, therefore, the instant petition for the said relief.

2. The contents of F.I.R. reveal that the complainant A.S.‑I. accompanied by police contingents was on Gasht when he received an information that a suspect armed person is present near the house of Shadi Khan for commission of sore cognizable offence. He alongwith police contingents attracted to the house of Shadi Khan where a person armed with a Kalashnikov No.TK 6776K with a fixed charger containing 30 live rounds was found present. He was disarmed who disclosed his name Wazir Bat Khan who was formally arrested and the instant case was registered against him.

3. We heard the learned counsel for the petitioner and the State Counsel. The bail was refused to the petitioner mainly on the ground that punishment provided for the alleged offence is up to imprisonment for life ' and thus his case was found falling under the prohibitory limb of section 497(1) of the Cr.P.C. .‑

4. It is an admitted fact that no evidence whatsoever was collected during investigation that the petitioner was present at the place wherefrom he was arrested for commission of some coginizable offence. It is also an admitted fact that the petitioner is neither a hardened criminal or desperate person nor ever charged for a criminal offence as per police record. Section 7 of the S.I.A.A. 1991 provides different punishments for keeping in possession illicit arms. When the illicit ,arms recovered fall under sub clauses (i) to (iii) of clause (a) of section 2, of the S.I.A.A. 1991, the punishment provided is imprisonment for life and forfeiture of property both movable and immovable but if the illicit arms are falling within the definition of sub‑clause (iv) of clause (a) of section 2, the offender would be liable to imprisonment for life or the imprisonment for a term which shall not be less than ten years having regard to the antecedents of the accused. If the illicit arms are falling within the definition of sub‑clause (v) of clause (a) of section 2 of the Act (ibid), the offender would be liable to imprisonment to the extent up to 14 years but not less than three years having regard to the antecedents of the accused. The case against the petitioner from whom a Kalashnikov has been allegedly recovered would fall under sub‑clause (v) of clause (a) of section 2 which reads as under:‑‑ "Rifles, carbines‑muskets, shotguns, revolvers, pistols and appliances the object of which is the silencing of fire‑arms and all other fire‑arms not included in sub‑clause.

5. Sub‑clause (iv) of clause (a) of section 2 reads as follows.;‑‑ "Fire‑arms comprising automatic weapons (other than machine guns) including sub‑machine guns, automatic rifles and machine pistols." Kalashnikov has not been used in sub‑clause (iv) of clause (a) of section 2 and machine guns have been excluded from the definition of automatic fire arms, hence the kalashnikov would fall in the residuary part of sub‑clause (v) of clause (a) of section 2 which is punishable to the extent of 14 years but not less than three years having regard to the antecedents of the accused.

6. In the instant case keeping in view the previous conduct/antecedents of the accused being involved for mere possession of kalashnikov if he is found guilty at the trial he could be awarded punishment for three years or B more but not the maximum punishment provided under sub‑clause (v) of clause (a) of section

2. In these circumstances we found the case of the petitioner not. falling within the prohibitory limb of section 497(1), Cr.P.C. and the petitioner is undisputedly not required any more for investigation. We, therefore, allow the concession of bail to the petitioner by accepting this petition. The petitioner is to be released on bail on furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate. These are the reasons for our short order of the day. N.H.Q./470/P Bail allowed.