1989 P Cr (PLP)

3. S. War Abbas Zaidi, the learned counsel for the petitioner has made the following submissions in support of this petition. (a) That the petitioner belongs to tribal territory and that while going to that area he has to pass through settled area of Tajori. (b) That the fact that the F.C. Post Fort is situated and F.C. Platoon is posted adjacent to the post would show the contiguity of the tribal territory to the place where the petitioner was apprehended; (c) That the complainant in this case, namely Subedar Major Majali Khan, was not authorised to apprehend the petitioner under any law for the time being in force, muchless under the provisions of the Ordinance and lastly; (d) That the petitioner was holding a valid permit to carry the kalashnikov in question issued by the Deputy Commissioner, Bannu who is the Political Agent for the tribal territory to which the petitioner belongs.

4. Mr. Hamesh Gul Khan, Advocate, appearing on behalf of the State has vehemently opposed the plea of bail advanced on behalf of the petitioner and submitted that there was no bar for Subedar Major Majali Khan to have apprehended the petitioner and in this context he invoked the provisions of section 7 of the Ordinance under which a person may without warrant apprehend any other person who is found carrying or conveying any arms, ammunition or military stores whether covered by a Licence or not. He further submitted that the Deputy Commissioner was not authorised to have issued a permit to carry the kalashnikov because in pursuance of letter No. 20/1‑SOS‑1(HD)/88, dated the 3rd August, 1988, the Government of N.‑W.F.P had withdrawn such powers from all the functionaries of the Government and have further decided to disallow all persons to carry the Kalashnikovs in the settled districts.

5. Since the interpretation of section 7(1) of the Ordinance is involved, it is, therefore, worthwhile to reproduce it. It reads. "When any person is found carrying or conveying any arms, ammunition or military stores, whether covered by a Licence or not, in such manner and under such circumstances as to afford just grounds or suspicion that the same are being carried or conveyed by him with intent to use them, or that the same may be used for any unlawful purpose, any person may without warrant apprehend him and take such arms ammunition or military stores from him:" A bare reading of this provision would show that there is no bar for any person whether authorised or not to apprehend a person without warrant if person is found carrying any arms etc. whether covered by a licence or not in such manner or under such circumstances as to afford just grounds of suspicion that the same are being carried or conveyed by him or that the same be used for any unlawful purpose. The learned counsel for the petitioner has contended that the prosecution has not so far been able to bring on record any material to show that the petitioner was found carrying the kalashnikov in such manner or under such circumstances as to afford just grounds of suspicion that the kalashnikov is being carried or conveyed by the petitioner with intent to use, or that the same may be used for unlawful purpose, and that, therefore, it is a case of further inquiry. He also submits that notwithstanding the directive of the Provincial Government to prohibit the issuance of permits, the Deputy Commissioner, Bannu had issued the said permits. It may not be valid but since it has been issued to the petitioner who is rugged tribal was carrying the kalashnikov bona fide under the cover of the said permit. Lastly he submitted that the petitioner has already suffered a detention of over three months and on this score also he would be entitled to bail.

6. For the foregoing reasons, I am of the view that a case for grant of bail to the petitioner has been made out. I accordingly grant bail to the petitioner in the sum of Rs.50,000 with two sureties, each in the like amount to the satisfaction of Assistant Commissioner, Bannu who shall see that the sureties are men of means and resident of Bannu City. S.A./861/P Bail granted. \