GOHAR ZAMAN (CORRECT NAME GOHAR MUNIR) vs THE STATE
This matter comes before the Peshawar High Court upon a bail application filed by the petitioner, Gohar Zaman (correct name Gohar Munir), who was charged under sections 13/14 of the Arms Ordinance read with section 7 of the Illicit Arms Act in F.I.R. No. 459 dated 30-9-2001 registered at Police Station Cantt, D.I. Khan for possession of illicit arms and ammunition. The core legal question revolves around whether the petitioner is entitled to post-arrest bail considering the alleged non-compliance with mandatory search provisions under section 103 of the Code of Criminal Procedure 1898 and the applicability of penal provisions under the Illicit Arms Act. The court held that given the nature of the recovered arms falling under section 2(v) rather than section 2(iv) of the Illicit Arms Act, and doubting the likelihood of the imposition of the extreme penalty in the absence of adverse antecedents, the bail application should be granted. The key principle laid down is that where the punishment for an alleged offense does not necessarily attract the extreme penalty and statutory safeguards regarding search are debatable, further inquiry into the petitioner's guilt warrants the grant of post-arrest bail.
- Whether non-compliance with the provisions of section 103 of the Code of Criminal Procedure 1898 during a search entitles an accused to post-arrest bail?
- Does the recovery of arms falling under section 2(v) of the Illicit Arms Act warrant the denial of bail when the extreme penalty is doubtful?
- Can an accused charged under the Arms Ordinance and Illicit Arms Act be admitted to bail pending trial?
- Section 13, Arms Ordinance
- Section 14, Arms Ordinance
- Section 7, Illicit Arms Act
- Section 103, Code of Criminal Procedure 1898
QAZI EHSANULLAH QURESHI, J.---For reasons to be recorded later, this application is allowed and the petitioner is directed to be released on bail in the sum of Rupees three lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means. EJAZ AFZAL KHAN, J.--The petitioner who is charged in case registered against him under sections 13/14, Arms Ordinance read with section 7 of Illicit Arms Act vide F.I.R. No,459 dated 30-9-2001 of Police Station Cant., D.I. Khan for having been found in possession of illicit arms and ammunition when failed to get the concession of bail from the lower forum has moved this Court for the same relief.
2. Learned counsel for the petitioner contended that though the police had prior information that the petitioner is keeping illicit arms and ammunition, they did not take along two respectable inhabitants of the locality to witness the search and that there is absolutely nothing on the record to show as to why the mandatory provision of section 103, Cr.P.C. Providing for the conduct of search in presence of two respectable inhabitants of the locality was dispensed with.
3. On the other hand, the learned State Counsel contended that the search was conducted in presence of a local councilor, therefore, contention of the petitioner's counsel is not correct.
4. A perusal of the F.I.R. Would reveal that the illicit arms and ammunition allegedly recovered from the house of the petitioner are not of the type as would fall within the ambit of section 2(iv) of the Illicit Arms Act, instead those are of the type which would fall within the ambit of section 2(v) of Act (ibid), which is punishable with imprisonment which may extend to fourteen years and the extreme punishment can only be awarded when the antecedents of the accused so justify. In the absence of any such antecedents, we doubt that the petitioner is likely to be awarded an extreme penalty.
5. For the foregoing reasons, we allow this application and admit the petitioner to bail provided he furnishes bail bond in the sum of Rupees three lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.