1991 PLP 6 (MLD)

Date of hearing: 31st July, 1990. Petitioner was apprehended on 5-7-1990 on the allegation of transporting six Kalashnikovs, one rifle of prohibited bore, 1260 bullets and magazine etc. The said arms and ammunition was found concealed in the cavities of Vehicle No.QAD-4145. F.I.R. No.39/90 under section 13-E, Arms Ordinance and section 156(189) of Customs Act was registered with Kuchlak Police Station. It is the case of prosecution that said ammunition was being smuggled from across the borders towards Province of Sindh. Mr. Inayat Kansi, learned counsel for petitioner vehemently urged that offence under section 13-E is bailable, therefore, petitioner is entitled to bail as of right. Reliance was placed on Shafiq v. The State 1983 P Cr. L J 1296: Learned Assistant Advocate-General vehemently opposed the bail application pointing out that offence alleged against petitioner is now punishable for 7 years, besides under third proviso to section 13, Arms Ordinance, minimum punishment of 3 years has been prescribed regarding weapons of prohibited bore. I have carefully considered the arguments addressed by learned counsel for parties. Evidently punishment prescribed under section 13-E has been enhanced from 3 years Io that of 7 years by Act LXII of 1973 w.e.f. 5-7-1973 PLD 1973 Central Statutes

552. Relevant portion is also reproduced below for ready reference:-- "

2. Amendment of section

13. West Pakistan Ordinance No XX of 1965.--In the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance NOXX of 1965) hereinafter referred to as the said Ordinance, in section 13, (a) for the words `three years' the words `seven years' shall be substituted; and' (b) the following proviso shall be added at the end, namely:-- Provided that the punishment for an offence committed in respect of any-- (a) cannon, grenade, bomb or rocket; or (b) light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than three years." In the circumstances obviously offence covered by section 13, Arms Ordinance ceases to be bailable. It appears that said amendment was not brought to the notice of learned Judge of Lahore High Court while deciding the matter in aforequoted report. For reasons of change in law, I respectfully differ from the conclusions arrived at it the above-mentioned judgment. Mr. Inayat Kansi, Advocate then argued, that even if punishment is 7 years, Court has discretion to grant bail to the petitioner. In the instant case petitioner is involved for trafficking huge quantity of ammunition. Therefore, in my opinion circumstances do not call for exercising discretion in his favour Accordingly application is rejected. M.BA./358/Q Bail refused.