2014 PLP 2398 (YLR)

AMER RAZA NAQVI, J.

Through this bail application, applicant has sought bail in F.I.R No.188/2014 under section 23(i)A of S.A.A, 2013 Police Station Peerabad, Karachi.

2. Learned counsel for the applicant submits that in the main case being F.I.R No.187/2014 under sections 324, 353/34, P.P.C., the bail has already been granted. Learned counsel says that in the instant case no one was injured from the police party and only applicant was injured and arrested. Learned counsel says that in such situation invariably bail has been granted. Learned counsel says that nothing was recovered from the applicant and he has been involved due to mala fides on the part of the police. Learned counsel also says that there is a contradiction in the recovery of bullets; in memo of arrest two bullets have been shown as recovered and in the Column No.3 three bullets were mentioned. In view of above facts, learned counsel says that it is a case of further inquiry and he is entitled to the grant of bail.

3. On the legal aspects learned counsel heavily relied on case reported as PLD 2014 Sindh

282. Learned counsel pointed out that in Para-9 of the said Order it has been mentioned that in case of recovery of "arms" as provided in section 2 carries maximum sentence of 10 years. Learned counsel says that since in this case Revolver has been recovered, therefore, this would not fall under section 23(i)A rather it would fall under section 24, which carries sentence of 10 years. Learned counsel has also relied upon 2014 YLR 1372. Learned counsel says that in such case also Revolver and pistols have been placed under the definition of "arms" and not "firearms".

4. On the other hand learned counsel appearing for the State submits that there is difference between two types of crimes provided under the Act, one deals with mere possession of the Arms which falls under section 23 as it relates to acquiring, possessing, carrying or control of any firearms or ammunition in infringement of section 3, whereas, sections 24 and 25 deals with the situation where such Arms and Firearms are intended to be used for any unlawful purpose or crime, in section 25 even imitation of firearms with the purpose to commit any crime is included. Learned counsel submits that in view of the above position, possessing an arm is different from possessing an arm or ammunition for the purpose of committing any crime, therefore, according to learned counsel for the State in the situation like in this case when possessing an arm and using it for any crime is alleged sections 23 and 24 both would apply.

5. I have heard both the learned counsel at length, who mainly argued on the legal aspects. It has been noted that punishment for acquiring, possessing, carrying or control of any firearms or ammunition is dealt with under section 23 of the Act. In section 23 the word "firearms" or "ammunition" has been used and in clause (a) of subsection (1) it is mentioned that such possession in violation of section 3, shall be punishable with imprisonment for a term which may extend to fourteen years and with fine. Word "arms" has not been used separately in section 23(i)(a), whereas, in subsequent clauses words "arms" and "ammunition" have been used. In section 3 as well words "firearms" and "ammunition" have been used and word "arms" has not been used. Bare reading of sections 24 and 25 makes it clear that punishment in those sections are provided where "arms", "ammunition" or "firearms" is used for commission of any offence or with intention to commit any offence or to attempt to use firearms or arms for any unlawful act. Using and Omitting words "Arms" and "firearms" on different occasions is significant and not accidental.

6. In view of above position it would amount that mere possessing of any "arms" (as defined under section 2(c) is not at all punishable under the Sindh Arms Act, 2013 as in section 2 words "arms" and "firearms" have been defined separately in clause "C" & "D" respectively, and in section 3 which is regulatory section in the Act word "Arms" has not been used. However I am not inclined to hold that, in this order as it is only a bail application and further extensive hearing would be required to settle this issue after hearing learned Advocate-General and Attorney General also. Secondly, Act while defining firearms provides that it means weapons designed to discharge a projectile or projectiles of any kind by the action of gun power or any explosive or other forms of energy and includes various items mentioned in clauses d(i) to d(iv) of section

2. Obviously a Revolver is used to discharge a bullet and therefore common sense requires that Revolver should be included in the definition of firearms although same has not been mentioned in the section and has separately been defined in clause "c" of section

2. In such situation, the word "arms" not being present in section 3 in fact supports the contention of learned counsel for the applicant. These aspects need further thorough deliberation on the subject, which may consume a lot of time and if this matter is kept pending for such exercise, the applicant would suffer on account of expected time consumption in interpretation of purely legal aspects, by the Court.

7. In view of the fact that the applicant has already been granted bail in main case and there is contradiction in respect of recovery. Moreover legal grounds urged have some substance atleast in my humble view applicant has made out a prima facie case for grant of bail. Accordingly, bail is granted to him in the sum of Rs.25,000 with PR bond in the like amount to the satisfaction of learned trial Court. MH/I-19/Sindh Bail granted.