ASIF NAWAZ KHOKHAR Versus State

ORDER

NOOR-UL-HAQ N. QURESHI, J.--- The following are the reasons of my short order of even date.

2. Through the present petition, the petitioner seeks post arrest bail in connection with FIR No.354 dated 05.09.2015 under sections 13/20, A.O. and 420/468/471/188, P.P.C. registered at Police Station, Koral, Islamabad.

3. It is alleged in the above FIR by Syed Sajjad Haider Bukhari, Inspector that during search operation, local police raided the shop of Khokhar Arms Dealer, where variety of illegal weapons was found, which was taken into possession. It is further alleged that petitioner is using his father's license for the sale and purchase of arms.

4. The petitioner, along with four others, filed petition for post arrest bail, which was dismissed by the learned Additional Sessions Judge-III Islamabad (East) to the extent of petitioner, vide order dated 12.09.2015, hence this bail petition.

5. Learned counsel for the petitioner has argued that the petitioner is innocent and has falsely been involved in the present case with mala fide intention; that after registration of FIR, thorough investigation was conducted by local police and it revealed that as a matter of fact, petitioner is the real son of licensee Muhammad Nawaz Khokhar, who died in the year 2006 and the petitioner has applied for transfer of license in his name; that as the petitioner had no other alternate to generate livelihood after the demise of his father, started to begin his business for sale and purchase of arms; that pendency of transfer of license does not constitute offence of forgery, cheating or dishonesty hence mala fide of the police becomes evident; that petitioner has no concern whatsoever with the commission of alleged offence; that allegations levelled in the FIR do not constitute offence, as necessary ingredients in this respect are missing; that petitioner is entitled for grant of bail on the rule of consistency, as his case is at par with co-accused namely Shahbaz Nawaz, Muhammad Nazeer, Faisal Mehmood and Muhammad Rafique, who have been released on bail by the learned Additional Sessions Judge; that case of present petitioner falls within ambit of section 497(2), Cr.P.C.; that prior to registration of above FIR, no conviction of the petitioner is on record. In view of above arguments, learned counsel for the petitioner has requested for grant of bail to the present petitioner.

6. On the other hand, learned State Counsel has opposed this bail petition and supported the orders passed by learned lower courts with the plea that the petitioner knowingly that dealership license is not in his name, possessed a large cache of arms and ammunition, which is not warranted in the prevailing law and order situation of the country.

7. I have heard the arguments carefully and perused the record as well as authorities referred.

8. The father of the petitioner was a license holder for sale and purchase of arms. The petitioner himself moved an application to the Deputy Commissioner, Islamabad for transfer of dealership in his name which is still pending since 2014. The details of weapons recovered are matching with the record seized by the police.

9. It is observed that sections 420 and 188, P.P.C. applied in above FIR are bailable, whereas sections 468 and 471, P.P.C. are non-cognizable. As far as the status of offence falling under section 13 of the Arms Ordinance is concerned there are controversial decisions rendered by various High Courts. Even, before the Hon'ble Sindh High Court, there is a controversial view with regard to its status as being bailable or non-bailable, whereas before other High Courts, its status remained controversial which led other High Courts to deliver contrary views. Therefore, instead of relying upon referred case law, it would be appropriate to refer Second Schedule of Criminal Procedure Code, wherein offences against other laws, status of offences under Arms Ordinance, 1965 has been clearly mentioned. Against the relevant columns, it is provided that if punishable within imprisonment of three years and upwards but not exceeding 7-years or with whipping not exceeding 80-strips with or without imprisonment. Other offences have been defined as non-bailable, whereas offences under Arms Ordinance have been declared to be bailable. The endorsement whereof available in the Second Schedule is reproduced here under:-

"Except in cases under [The Arms Ordinance, 1965 section 13] which shall be bailable".

The reference in Column No.4 further leads to the clarification with regard to history of Arms Law. In explanation existing at Sr. No.6 at the bottom of leaf, 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)".

It is observed that section 19 existed in original Arms Act of 1878, but later on, it was substituted with section 13 on promulgation of West Pakistan Arms Ordinance, 1965.

10. In view of such legal analogy, entire section 13 of Arms Ordinance is deemed to be bailable therefore bail plea of the petitioner, on this alone score, cannot be declined.

11. Another very important material point raised during arguments is with regard to inclusion of some enactments in addition to section 13 of Arms Ordinance. All those additions were made through Ordinance which on complete of its age, stood abolished.

12. Under the circumstances, in view of such amendment, the nature and status of offence could have been changed from bailable to non bailable as well as its punishment enhanced by virtue of said Ordinance.

13. There was an essentiality contained in those amendments regarding inclusion of those sections by showing those in the Schedule of Separation of Terrorist Activities Act, 1975. Neither the said Act is in operation on promulgation of ATA nor the said amendment, hence section 13 of Arms Ordinance, 1965, in its original form, is a bailable offence.

14. Another very important feature is that initial punishment provided in whole section 13 of the Arms Ordinance is three years. On its amendment by Ordinance XXI of 1971, such punishment was enhanced from three years to seven years, but yet, the position with regard to its status as bailable or non bailable remains same. The intent of legislation not modifying the said endorsement, as referred above, seems to be as bailable offence.

15. For what has been discussed above, instant bail petition is allowed. Consequently, the petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs. 10,00,000/- (Rupees Ten Lacs) with one surety in the like amount to the satisfaction of learned trial court.

16. Since the above observations are tentative in nature therefore learned trial court needs not to be influenced by the same.

MWA/114/Isl. Bail granted.