1996 PLP 2036 (MLD)

Date of hearing: 19th May 1996. Accused‑respondent Gulab son of Allah Bakhsh was enlarged on bail by Additional Sessions Judge, Usta Muhammad vide order dated 23rd January, 1996, in a crime under section 13‑E of Arms Ordinance, 1965, mainly on the ground that offence charged against him is bailable. During scrutiny of order, in exercise of Suo Moto revisional powers, it was considered that prima facie, observations made by learned Additional Sessions Judge, are not correct, because as far as the Province of Balochistan, is concerned, offence falling within the mischief of section‑13‑E of Arms Ordinance, is not bailable, therefore, notice was issued to accused‑respondent, as well as learned Advocate‑General, to assist the Court. Mr. Azizullah Memon, learned counsel for accused Gulab, conceded that observations of trial Court in this behalf are not correct. However, he stated that accused is entitled to continue on bail in view of third proviso to section 497, Cr.P.C. in terms whereof, if an accused charged for offence entailing punishment of any quantum but less than capital sentence, on spending a period of one year will become entitled for release on bail. Mr. Abdul Karim Yousufzai, learned State Counsel, supported the reference and also subscribed to the contention of learned counsel for accused respondent, conceding that offence under section 13‑E of Arms Ordinance is not bailable. I have heard the parties' counsel at length and also examined carefully relevant provisions of law, on the subject. The West Pakistan Arms Ordinance, 1965, was amended by Act LII of 1973, in pursuance whereof, sentence under section 13 of the principal Ordinance has been enhanced from three years to seven years, whereas prior to this amendment, the Province of Punjab vide an amendment in Criminal Procedure Code, by means of Criminal Procedure (Punjab Amendment) Ordinance, 1971 (Ordinance IX of 1971), amended Schedule II to Act V of 1892 and directed that Heading relating to offences against other laws to the extent that against the second entry in Coulmn V for the words and commas' ' The Arms Act, 1878, section 19' the words and commas ' section 13 of the West Pakistan Arms Ordinance, 1965' be substituted. No such amendment in the Code of Criminal Procedure, was made, as far as the Province of Balochistan is concerned, because the Arms Act, 1878, is still applicable in its Provincially Administered Tribal Areas. Therefore, criteria to determine, whether an offence is bailable or non‑bailable in other laws, remained the same i.e. the offence punishable with three years not exceeding 7 years, shall not be bailable. In this behalf, an identical proposition was examined by the Sindh High Court in a judgment reported in 1990 ALD 477(2), and held that the offences under section 13 of Arms Ordinance, as applicable in Sindh are not bailable. Thus for the above discussion, it is concluded in the Province of Balochistan, offences falling within the mischief of section 13 of Arms Ordinance, 1965, are not bailable. As accused had remained in custody for a period of more than one year, therefore, he is allowed to continue on bail. Reference is answered accordingly. Copy of the judgment be sent to Additional Sessions Judge, Usta Muhammad, for future guidance. N.H.Q./582/Q Order accordingly