P L D 2002 Lahore 36 (PLP)

Altaf Hussain Bhutta for Petitioner. Muhammad Qasim Khan, Asstt. A.G. with Javed Iqbal for the State. Date of hearing: 29th October, 2001 Possession of illicit weapons by citizens may be hazardous to good health and security of a society and their use a menace but at the same time an illicit utilization of a law for curbing such a peril may be no less harmful 4 to the legal regime of the same society as well as to the Constitutional rights of its citizens. The 'inalienable right' of the citizens to be dealt with in accordance with law enshrined in Article 4 of the Constitution and the Fundamental Right embodied in Article 9 of the Constitution guaranteeing that no person shall be deprived of his liberty save in accordance with law presupposes that while dealing with a citizen the State shall invoke the correct law and a citizen's liberty shall not be snatched away or curtailed by the State by using or utilizing a law against him which in fact has no application against such a citizen. Unthoughtful, or may be callously deliberate use of one such law against the citizens is the subject‑matter of the present order. Illicit use of that law by the State against its citizens is so A widespread these days and arbitrary deprivation of the citizen's liberty by invocation of that law is so rampant that it is not possible for this Court to ignore the same on the larger consideration of public policy or, when confronted with a legal challenge in that regard, to look the other way: After all it is this Court's Constitutional obligation to preserve, protect and defend the Constitutional and legal rights of the citizens and as far as possible or practicable this Court would not be failing in that commitment and duty. In this regard I am guided by the observations made by the honourable Supreme Court of Pakistan in the case of Government of Sindh through the Chief Secretary and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283.

2. The contentious legal issue involved in this case has arisen out of facts which are relatively very simple. Muhammad Ishfaq alias Pappu petitioner is an accused person in case F.I.R. No. 198 registered at Police Station Chowk Azam, District Layyah on 14‑7‑2001 for an offence under section 7 of the Surrender of Illicit Arms Act, 1991 and the allegation levelled by the prosecution is that at about 6‑40 a.m. on 14‑7‑2001 the petitioner had been apprehended by Riaz Ahmad, Inspector C.I.A. Staff, Layyah and his raiding party in the area of Chak No. 471/T.D.A. while in possession of a 30 bore pistol for which the petitioner could not produce a valid licence. After his arrest in that connection the petitioner successively applied for his bail before the Judicial Magistrate, Layyah and the Sessions Judge, Layyah but his applications in that regard were dismissed on 28‑7‑2001 and 9‑8‑2001 respectively. Hence, the present petition before this Court for the petitioner's post‑arrest bail.

3. In support of this petition it has been argued by the learned counsel for the petitioner that the petitioner has been falsely implicated in this case on account of mala fide on the part of the complainant; no independent witness from the public had been associated with the alleged recovery from the petitioner, physical custody of the petitioner is no longer required for the purposes of investigation; and bail cannot be refused by way of premature punishment. It has also been forcefully argued on behalf of the petitioner that the prosecution is not possessed of any independent evidence or material whatsoever to the effect that the petitioner was also in possession of the weapon in question on or before June 20, 2001 which was the target date fixed and notified by the Federal Government for the purposes of the provisions of sections 4 and 5 of the Surrender of Illicit Arms Act, 1991 and in the absence of such an evidence or material the petitioner cannot be convicted and punished under section 7 of that Act for a violation of the provisions of section 4 or 5 of the said Act. Thus, according to the learned counsel for the petitioner, at worst the case against the petitioner attracts an offence under section 13 of the Pakistan Arms Ordinance, 1965 which offence is bailable.

4. The learned Assistant Advocate‑General appearing for the State has opposed this petition tooth and nail and has maintained that the recent spread of illicit arms in the society with its resultant adverse effects on the law and order situation requires curbing of the same with an iron hand so as to root out this menace and to minimize its effects on the society. According to the learned Assistant Advocate‑General the complainant of this case, who is a serving police official, had no ostensible motivation for falsely implicating the petitioner in a case of this nature and there in no reason why he and the other police officials who had witnessed the alleged recovery from the petitioner may not be prima facie believed at this stage for the purposes of the present petition. It has also been argued by him that an offence under section 7 of the Surrender of Illicit Arms Act, 1991 is non‑bailable and the same attracts the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. It has, however, been conceded by the learned Assistant Advocate‑General that there is no independent evidence or material available on the record of investigation of this case for even alleging that the petitioner was also in possession of the relevant weapon on or before the target date of June 20, 2001 fixed and notified by the Federal Government for the purposes of the provisions of sections 4 and 5 of the Surrender of Illicit Arms Act, 1991. Having made that concession the learned Assistant Advocate‑General has hastened to add that failure to show any contravention of the provisions of section 4 or 5 of the Surrender of Illicit Arms Act, 1991 does not mean that the said Act is not applicable to the case against the petitioner as the petitioner had failed to surrender illicit arms which fact, independently of any contravention of the provisions of section 4 or 5 of the said Act, attracts a punishment provided under section 7 of that Act, Thus, according to the learned Assistant Advocate‑General, the punishments provided under section 7 of the said Act are attracted not only to cases of failure to surrender illicit arms by the target date, if possessed before such date, but also to cases where possession of illicit arms is acquired subsequent to the target date but such illicit arms are not surrendered. To put it simply, the learned Assistant Advocate‑General has maintained that possession of illicit arms and failure to surrender the same even if such possession was acquired after the target date, is now to be treated as an offence under the Surrender of Illicit Arms Act, 1991 which is punishable under section 7 of the said Act has the effect of superseding the provisions of the Pakistan Arms Ordinance, 1965 vis‑a‑vis such possession and its punishment.

5. Having heard the learned counsel for the petitioner and the learned Assistant Advocate‑General at some length and having gone through her record of this case with their assistance I feel it imperative to recapitulate the various provisions of the relevant laws around which the legal controversy in this case‑ revolves.

6. The Pakistan Arms Ordinance, 1965 [Ordinance XX of 1965] is presently the general law in vogue in the country which, according to its Preamble, was introduced "to consolidate the law relating to the sale, transport, bearing or possession of arms, ammunition or military stores". Chapter II of the said Ordinance deals with sale and repair of arms, ammunition or military stores, Chapter III covers the field of their transport, Chapter IV regulates the matters pertaining to going armed or possessing arms, etc., Chapter V provides for licences and Chapter VI caters for the penalties including punishment with imprisonment for various terms. Although this law is a complete and comprehensive Code on the subject yet section 25 thereof goes on to provide that "Nothing in this Ordinance shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Ordinance or the rules or from being liable under such other law to any higher punishment or penalty than that provided by this Ordinance: Provided that no person shall be punished twice for the same offence".

7. It appears that in the year 1991 the Federal Government felt dissatisfied with the effectiveness of the Pakistan Arms Ordinance, 1965 vis a‑vis possession of unlicensed arms by the citizens and, therefore, the Surrender of Illicit Arms Act, 1991 [Act No. XXI of 1991] was enacted in the country on December 2, 1991. According to the Preamble of the said Act the new law was being enacted because it was felt "expedient in the public interest to provide for the surrender of illicit arms, improvement and control of law and order situation and for matters connected therewith or incidental thereto". As provided by section 1 of this Act this new law was to extend to the whole of Pakistan and it was to come in force in such areas and on such date as the Federal Government may, on recommendation of the respective Provincial Government, by notification in the official Gazette appoint: and different dates may be so appointed in respect of different areas. Section 2 of this Act had defined "illicit arms" to include various types of weapons mentioned in clauses (a), (i) to (v) of subsection (1) "which are held or possessed in contravention of the provisions of, amongst others, the Pakistan Arms Ordinance, 1965. According to section 3 of this Act "The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any person from any proceedings which may be instituted against him under such law". Sections 4 and 5 are the meat or gravemen of this Act and they are reproduced here for facility of reference "

4. Surrender of illicit arms.‑‑‑(1) All persons in possession or control, of any illicit arms shall surrender such arms within such time as is notified by the Federal Government to the Deputy Commissioner, Assistant Commissioner or officer‑in‑charge of a police station within whose jurisdiction such persons ordinarily reside or to such other authority as may be specified by the Federal Government by notification in the official Gazette. (2) The authority receiving any illicit arms shall issue a receipt for the same.

5. Surrender of arms, etc. by persons on visit abroad.‑‑‑A person on a lawful visit abroad at the commencement of this Act shall, within the time notified under section 4 of his return to Pakistan, through an authorised route or port of entry, surrender and deposit all illicit arms in his possession or control to one of the authorities specified in section 4. " Section 7 of this Act has provided various punishments for "whoever contravenes the provisions of section 4 or section 5 or fails to surrender illicit arms" and the punishments mentioned in this section are strikingly heavier and longer than those provided 'under Chapter VI of the Pakistan Arms Ordinance, 1965 for violation or contravention of the provisions of the said Ordinance. The provisions of section 8 of the Act of 1991 are also relevant for the present purposes and they are also reproduced herewith: "

8. Indemnity‑‑‑A person surrendering or depositing illicit arms under section 4 or section 5 shall stand indemnified against any legal or penal action for having previously possessed such illicit arms: Provided that any person who had committed any offence with such arms shall not be exempted from criminal liability for such offence," For the purposes of the provisions o sections and of this Act the Federal Government had in May, 2001 fixed and notified June 20. 2001 to be the target date for the Province of the Punjab on or before which illicit arms could be surrendered or deposited before the relevant authorities so as to claim indemnity provided by the provisions of section 8 thereof.

8. A careful scrutiny of the relevant provisions of the Pakistan Arms Ordinance, 1965 and the Surrender of Illicit Arms provision's 1991 leaves not ambiguity in my mind and it has appeared to be quite clear to me that the Pakistan Arms Ordinance, 1965 is still general law of the land providing for possession of unlicensed weapons and its punishment. As against that, the Surrender of Illicit Arms Act, 1991 is a special law catering only for the special and peculiar circumstances mentioned therein, i.e. affording an opportunity for surrendering of illicit arms within a grace period and for avoiding punishment for possession of such illicit arms by taking advantage of the indemnity: provided during that grace period. To my mind possession of unlicensed weapons still remains punishable under the Pakistani Arms Ordinance, 1965 and it is only those who had failed to surrender illicit arms during the grace period who can be caught within the net spread by the Surrender of Illicit Arms Act, 1991. The heavier and longer punishments provided by the Act of 1991 thus make a lot of sense inasmuch as possession of such weapons is culpable but stubborn and obstinate failure to surrender the same, despite provision of a grace period and indemnity is more culpable as the same reflects upon desperate character of the offender. When looked at from this angle the provisions of the Surrender of Illicit Arms Act, 1991 do not appear in any manner, to be overlapping or superseding in their effect vis‑a‑vis the provisions of the Pakistan Arms Ordinance, 1965. In fact the provisions of the Act of 1991 are in addition to and not in derogation of the provisions of the Ordinance of 1965 as the Act of 1991 creates ant: constitutes an offence distinct from those catered for by the Ordinance of 1965. Such an interpretation not only harmonizes the two statutes and fosters their co‑existence but the same also fits into the scheme of the Legislature contemplated in the provisions of section 25 of the Pakistan Arms Ordinance, 1965 and section 3 of the Surrender of Illicit Arms Act, 1991. The law of interpretation of statutes loathes inferring redundancy of an existing statute or a statutory provision. The interpretation given above avoids such a redundancy, canvassed by the learned Assistant Advocate- General regarding the relevant provisions of the Ordinance of 1965 and, thus abegs acceptance.

9. The essence of the offence contemplated by and made punishable under section 7 of the Surrender of Illicit Arms Act, 1991 is contravention of the provisions of section 4 or 5 of that Act and the language used in the said provisions unmistakably points out that a person has to be in possession of the relevant illicit arms on or before the target date before he can be penalized for failing to surrender the same. It is only such a failure to surrender illicit arms after failing to avail of the grace period and indemnity that has been made culpable and punishable by the provisions of sections 4, 5 and 7 of that Act. This interpretation has already been accepted and acted upon by the Supreme Appellate Court in the cases of Hakim Inayat Ullah Khan v. The State 1993 PCr.LJ 1010 and Sh. Muhammad Qaisar v. The State 1994 PCr.LJ 88 and by this Court in the case of Shaukat Ali v. The State 1994 PCr.LJ 2527. Thus, the words "or fails to surrender illicit arms" figuring in section 7 of that Act after the words "Whoever contravenes the provisions of section 4 or section 5" do not have an independent meaning or connotation and the said words cannot be lifted out of the context so as to create or constitute an independent offence or to infer or attribute an overlapping or, superseding effect to the same vis‑a‑vis the relevant provisions of the Pakistan Arms Ordinance, 1965, as argued by the learned Assistant Advocate‑General. In this context it cannot be lost sight of that according to section 3 of the Act of 1991: "The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force‑‑‑‑". Even otherwise if the purpose of adding the words "or fails to surrender illicit arms" in section 7 of the Act of 1991 was to cater for a situation other than that contemplated by a violation of the provisions of section 4 or 5 of that Act then it cannot be easily or readily accepted that by adding the said words the Legislature had intended to indirectly amend the relevant provisions of the Ordinance of 1965 and to provide for heavier and longer punishments for violations of the Ordinance of 1965. If the Legislature wanted to achieve that result then there was nothing to stop the Legislature from suitably amending the Ordinance of 1965 itself in that regard so as to achieve the desired objective. Thus, the argument of the learned Assistant Advocate‑General advancing a concept of such an indirect nay perverted manner of legislation cannot be accepted except with a grain or salt.

10. The observations made above lead to an irresistible conclusion that what is made punishable under section 7 of the Surrender of Illicit Arms Act, 1991 is failure to surrender illicit arms after the target date fixed and notified by the Federal Government for the purposes of the provisions of sections 4 and 5 of that Act if such illicit arms were in possession of a person on or before that target date and he had failed to avail of the grace period and the indemnity in that regard. Thus, in order to invoke section 7 of that Act against any person the State/prosecution must have evidence or material in its possession to allege and establish that the said person had the relevant illicit arms in his possession on or before the target date and that he had failed to surrender the same despite the grace period and an indemnity having been offered to him in that regard. In the present case, as already observed above, the learned Assistant Advocate‑General has conceded that the prosecution has no such independent material or evidence available on its record. Thus, in view of this admitted position, it can safely be concluded that prima facie reasonable grounds do not exist to believe in the petitioner's involvement in the offence allegedly committed by him and there are sufficient grounds for p further inquiry into his guilt within the purview of sub‑section (2) of section 497, Cr.P.C. In the circumstances of this case at worst the petitioner may be saddled with the responsibility of committing an offence under section 13 of the Pakistan Arms Ordinance, 1965 which offence is bailable. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. Before parting with this order it may be observed that during their recent campaign to recover illicit arms and to rid the society of this menace the Federal and Provincial Governments had undertaken a massive and concerted operation in that regard throughout the country and during such operation thousands of illicit arms were claimed to have been recovered. In all such cases of recovery criminal cases were registered against the offenders and in almost all of these cases, or at least in most of such cases coming up before this Court, it is section 7 of the Surrender of Illicit Arms Act, 1991 that has been invoked against the offender and not section 13 of the Pakistan Arms Ordinance, 1965. This has probably been done because the former offence is non‑bailable and carries a heavier and longer punishment than the latter which is bailable and carries a relatively lighter punishment. However, in most of these cases scant attention has been paid to the fact that the prosecution is possessed of virtually no independent evidence or material to allege or establish that the offender was also in possession of the illicit arms on or before the target date and that he had failed to surrender the same by the target date and had not availed of the grace period and the indemnity. Given the said state of affairs the result of all those cases may not be different from the present one. If that be so then the responsibility for putting the citizens in all such cases to more hardship than was legally due and for depriving them of their liberty where the material against them disclosed only a bailable offence in which case bail is to be claimed by them as of right, shall have to be borne by the State which, in its zeal to eradicate lawlessness, would be perceived to have itself added to the lawlessness by invoking and utilizing a wrong law for a short‑term advantage. It may be remembered in this context that it is by now a cliche or a hackneyed truism that one may laugh at the law but the law will have the last laugh. M.B.A./M‑854/L Bail granted.