1989 PLP 4612 (MLD)

Pervaiz Inayat Malik for Petitioner. Aftab Sherazi for the State. Muhammad Shezad Shaukat for the Complainant. Date of hearing: 5th September, 1989. The petitioner seeks bail in a case registered against him vide FIR No. 160/89 dated 28‑7‑1989 for the offence under section 13‑B of the Arms Ordinance at Police Station, Town Ship, Lahore. According to the FIR a pistol of .30 bore with 9 bullets was recovered from the petitioner's personal search. At the time of search the petitioner was in custody in another case bearing No. 159/89 under section 387/506, Police Station Town Ship, Lahore.

2. I have heard the learned counsel for the petitioner and the State. The learned counsel for the petitioner contended that the amendment brought about in the Arms Ordinance through the Ordinance XVI of 1988, no longer exists as the amending Ordinance was not got approved from the National Assembly within a period of 4 months provided under Article 89 of the Constitution of Pakistan. This question is already being examined by a Division Bench of this Court. I refrain from entering into the controversy regarding the validity or otherwise of the amendment brought about through Ordinance XVI of 1988. Bails have been allowed in a few cases on the strength of the argument that the amending Ordinance has since lapsed and that the offence falls under section 13 of the Ordinance which is bailable. Reference may be made to Mahmood Ahmad alias Mant v. The State Crl. Misc. No. 1870‑B/1989 (decided on 17‑6‑1989 by m) learned brother Rashid Aziz Khan, J.). Assuming it to be valid piece of law, bail can still be allowed in the present case because in bail matters only maximum sentence provided for a particular offence is not to be kept in view. If on consideration of the material placed on the record a tentative view can be formed that maximum sentence would not be called for in the given circumstances of the case then it goes out of the prohibition under section 497 of the Cr. P.C. The new offence under section 13‑B relates to illegal possession of arms like cannon, grenade, bomb, rocket or light or heavy automatic weapon, such as a Kalashnikov, a G‑III rifle or any other type of assault rifle. Obviously the type of pistol recovered from the petitioner is not a weapon as dangerous as others mentioned under section 13‑B of the Ordinance. Hence it can be visualised that the petitioner shall not be awarded the maximum sentence of 10 years' imprisonment under the said provision of the law. Moreover, the petitioner was already in custody in connection with another case. The recovery of the pistol, according to the FIR, was made by Asghar Ali ASI. No witness is named in the FIR in whose presence the recovery was made. Hence, the possibility of planted recovery cannot be ruled out. I therefore, accept this application and allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs. 50,000 with two sureties in the like amount to the satisfaction of AC/Duty Magistrate Lahore. H.B.T./Z‑124/L Bail granted.