2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Muhammad Hayat Khan, as per FIR No.444/15, dated 28.11.2015, under section 13(2)(c) of the Pakistan Arms Ordinance XX of 1965 (Punjab Amendment Ordinance, 2015), registered at Police Station Saddar Bhakkar is, that he transported a sizeable quantity of arms and ammunition by concealing it in secret cavities of a car, bearing registration No.AHV-944, which was intercepted, on a spy information, at 8.45 a.m. on 28.11.2015 near Remote Search Park Check Post Dajal, by a contingent of the police, headed by Asad Iqbal SI and thoroughly checked, which yielded recovery of four Kalashnikovs, five magazines, four rifles .303-bore, two semi-automatic rifles, twenty-eight (28) pistols .30-bore with fifty-five (55) magazines, five machine-pistols with ten (10) magazines, one thousand (1000) bullets of Kalashnikov, seven thousand five hundred (7500) bullets of .303-bore, two thousand five hundred (2500) live bullets of .30-bore and three hundred (300) bullets of .44-bore from in-built secret cavities thereof, beside recovery of its registration book, a cell-phone Nokia-208 with more than one SIM, original NIC and cash amount of Rs.2600/-; he could not produce any licence or permit about the recovered cache of arms and ammunition; he was arrested at the spot by the police.

2. Learned counsel for the petitioner has contended that the petitioner has been falsely involved in this case as he refused to succumb to pressure of the police for paying illegal gratification to them: the alleged offence against the petitioner is bailable, therefore, he may be set at liberty.

3. On the other hand, learned Deputy Prosecutor General Punjab vehemently opposed the application with the contention that the petitioner smuggled heavy quantity of prohibited bore arms and ammunition, regarding which he could not show any licence or permit to the police, wherefor he has been booked in this case, the offence against the petitioner is punishable with fourteen years imprisonment, as it would constitute a non-bailable offence.

4. After hearing the learned counsel for the parties and perusing the record, it is observed that Schedule-II of the Code of Criminal Procedure 1898. Offences Against Other Laws underlines, if an offence punishable with imprisonment for three years and upwards but not exceeding seven years or with whipping not exceeding eighty stripes with or without imprisonment, as per column No.4 thereof is committed by someone, it would not be bailable "Except in cases under [The Arms Ordinance, 1965 section 13], which shall be bailable and triable by the Magistrate of first class." In an explanation, that figured at serial No.5, underneath Schedule-II, it is mentioned that 'For the words "the Arms Act, 1878, section 19" the words 'section 13 of the W.P. Arms Ordinance, 1965" were substituted by Code of Criminal Procedure (Amdt.) Ordinance (IX of 1971), section 3(iii), which denoted that section 19, once existed in the Arms Act 1878, but it was, later on, substituted by section 13, on enactment of W.P. Arms Ordinance, 1965, which, after advent of Eighteenth Amendment in the Constitution of Islamic Republic of Pakistan 1973, having fallen to the hierarchy of Punjab Province, was amended and redesigned by the Provincial Assembly to get the nomenclature of the Punjab Arms Ordinance 1965 (Ordinance XX of 1965). It was further amended through the Punjab Arms (Amendment) Act 2015 (XV of 2015) on 18th March, 2015, whereby section 13 of the Ordinance (ibid) was reshaped to read as follows:- "

2. Amendment in section 13 of Ordinance XX of 1965.

In the Punjab Arms Ordinance, 1965 (XX of 1965), for section 13, the following shall be substituted: "

13. Offences and penalties.

(1) A person shall be liable to punishment under subsection (2) if he commits any of the following offences: (a) sells, or keeps, offers or exposes for sale, any arms, ammunition or military stores, or undertakes the repairs of any arms in contravention of section 4; (b) fails to give notice of the sale of arms and ammunition and of the purchaser's name and address as required by section 4; (c) transports any arms, ammunition or military stores in contravention of a regulation of prohibition issued under section 5; (d) goes armed in contravention of section 8; (e) has in his possession or under his control any arms. ammunition or military stores in contravention of section 9: (f) fails to deposit arms, ammunition or military stores as required under section 10; (g) internationally makes any false entry in a record or account which by a rule made under clause (d) of section 11 he is required to keep: (h) intentionally fails to exhibit anything which by a rule made under clause (f) of section 11 he is required to exhibit; or (i) keeps, carries or displays any arms in contravention of an order issued under section 11-B. (2) If a person commits any of the offences mentioned in subsection (1) and if the offence is with respect to: (a) a non-prohibited bore weapon, ammunition of non-prohibited bore weapons or military stores, he shall be punished with imprisonment for a term which shall not he less than two years and which may extend to seven years and with fine; (b) a prohibited bore weapon or ammunition of prohibited bore weapons, he shall be punished with imprisonment for a term which shall not be less than four years and which may extend to ten years and with fine; and (c) carrying or possessing two or more prohibited bore weapons or five or more non-prohibited bore weapons or one prohibited bore weapon and two non-prohibited bore weapons, he shall be punished with imprisonment for a term which shall not be less than five years and which may extend to fourteen years and with fine." After enhancement of the punishment, as envisaged by sub-clause (b) and (c) of subsection (2) of section 13, it could no more be assumed that this offence, in its present form, as a whole, is bailable, as its form of being bailable is necessarily conditioned with the punishment provided, maximum being seven years, as incorporated in column No.2 of Schedule-II (Offences Against Other Laws). A recent amendment in section 13, whereby recovery of a single prohibited bore weapon or more than thereof, has been made punishable up to ten years and fourteen years along with fine respectively, would not only impliedly but also explicitly lead to believe that an offence under section 13(2)(b) or (c) would be non-bailable. It must not be understood that section 13 of Ordinance (ibid) has been rendered bailable for all intents and purposes, for, the quantum of punishment as mentioned in Schedule-II is a key to grasp the true meaning thereof.

5. The petitioner allegedly got recovered, at his own pointedness, a heavy quantity of illicit arms and ammunition, including prohibited bore weapons, as detailed hereinabove. It is not a case of mere recovery of some illicit firearms, rather it is a far aggravated form thereof, as the petitioner devised a number of secret cavities in the vehicle, that he drove then, so as to conceal the mentioned armory. His act of clandestinely transporting a pile of prohibited bore weapons and ammunition is not to be looked at as an offence in routine. It has got special meaning, as people have borne the brunt of a catastrophic situation in the country, arisen out of bloody terroristic activities of hundreds and thousands of hellish characters, fearlessly roaming about. The country is in the grip of a seemingly unending wave of terrorism for so many years and anti-state elements/terrorists have been wreaking havoc with the lives and properties of the people by recklessly using the explosives, IEDs and other weaponry, that fell into their hands with surprising ease. It has to be checked sternly by mobilizing the machinery of law at all cylinders. A serious attempt has to be made to throttle the criminal supply of the weapons of destruction.

6. The amendment made in section 13 of the Ordinance (ibid) shall have to be given a thoughtful meaning that should be consistent with the law itself and with the security of the people at large. The provisions qua the enhanced sentence, would certainly let the petitioner understand that he has committed an offence, which is not bailable in nature. It should be so understood by the others, alike. The petitioner needed to establish his case being one of further inquiry into his guilt within the scope of section 497(2), Cr.P.C. so as to have him bailed out, which. I am afraid falls nowhere near it.

7. Therefore, I am not inclined to accept this application, which is accordingly dismissed. JK/M-170/L Bail declined.