KHALID MASOOD KHAN vs THE STATE
This is a criminal bail application filed before the Peshawar High Court by the petitioner Khalid Masood Khan seeking post-arrest bail in a case registered under section 13-A of the Arms Ordinance, 1965, arising from the recovery of an unlicensed Kalashnikov during a police raid. The core legal questions involved whether the charged offence under section 13-A remained effective given the legal status of its amendment and whether the offence was bailable, alongside considerations of further inquiry and the prohibition against withholding bail as punishment. The Court held that section 13-A of the Pakistan Arms Ordinance, 1965 added by the 1997 amendment stood repealed as it was not repromulgated, and further noted that the case fell under the relevant penal provisions regarding unlicensed firearms where investigation was complete and continued incarceration served no useful purpose. The Court laid down the principle that the law is not to be stretched in favour of the prosecution and that bail should not be denied as a punishment, consequently accepting the application and releasing the petitioner on bail.
- Whether section 13-A of the Pakistan Arms Ordinance, 1965 added by the Pakistan Arms (Amendment) Ordinance, 1997 stands repealed if not repromulgated?
- Does the recovery of an unlicensed firearm under the circumstances warrant further inquiry into the guilt of the accused for the purpose of bail?
- Is bail to be withheld as a form of punishment when the investigation of the case is almost complete?
- Section 13-A, Pakistan Arms Ordinance 1965
- Section 103, Code of Criminal Procedure 1898
- Section 8, Pakistan Arms Ordinance 1965
- Section 9, Pakistan Arms Ordinance 1965
Pursuant to an information that a proclaimed offender Nasir Khan son of Sher Afzal Khan, wanted by the police in a murder case, has taken refuge in his house in Kalumanay Banda Kohat, the house of the offender was raided on 6-8-2002 at about 05-05 a.m. But the offender was not found.
However, another person who disclosed his name Khalid Masood Khan son of Sher Afzal was found in the Veranda of the house in possession of a Kalashnikov with charger and 25 cartridges of 7.62 bore. No licence or permit could be produced in respect thereof. Resultantly Khalid Masood Khan was arrested and a case against him was registered vide F.I.R. No. 546, dated 6-8-2002 Police Station Saddar Kohat for an offence under section 13-A of Arms Ordinance, 1965.
2. The petitioner submitted an application for grant of bail in the Court of District and Sessions Judge, Kohat which was entrusted to Additional Sessions Judge/Judge Special Court, Kohat for disposal. The prayer of the petitioner for bail was turned down vide order, dated 12-8-2002 which has given rise to the filing of instant bail application.
3. Mian Manzoorur Rehman's, Advocate appeared on behalf of the petitioner whereas the State was represented by Malik Muhammad Akhtar, Advocate. I have heard the arguments of learned counsel for the parties in the light of the material on record.
4. Bail is sought principally on the ground that section 13-A, Arms Ordinance has since been repealed with effect from 1st July, 1979 and that mandatory provisions of section 103, Cr.P.C. Had been seriously violated which has made the recovery doubtful. The grant of bail is opposed on the ground that prosecution is in possession of sufficient material to implicate the petitioner with the guilt and as such no prima facie case for grant of bail has been made out.
5. Section 13-A of the Pakistan Arms Ordinance, 1965, which was added by virtue of the Pakistan Arms (Amendment) Ordinance, 1997 (XLII of 1997) stands repleaded as the same was not repromulgated, hence the charge under section 13-A(ibid) had lost its efficacy. Similarly the offence under section 13-A of the said Ordinance was a bailable offence which entitles the petitioner to be released on bail forthwith.
6. The case of the petitioner falls under subsection (2) of section 13-A (ibid) whereunder the punishment for keeping any tire-arm without any licence in contravention of sections 8 and 9 of the Pakistan Arms Ordinance, 1965, is imprisonment for life or rigorous imprisonment for a term which is not less than 7 years. The petitioner is in custody ever since his arrest on 6-8-2002. The investigation of the case is almost complete and no useful purpose would be achieved in case he is allowed to remain in jail. It is settled principle that the law is not to be stretched in favour of the prosecution and bail should not be denied as a punishment. Mubarak Shah v. The State (1990 PCr.LJ 1796), Azim and others v. The State (1997 PCr.LJ 688) and Ghulam Hussain v. The State (1998 PCr.LJ 40 (Lahore)).
7. Keeping in view the above circumstances I find that the petitioner has succeeded in making out a prima facie case for grant of bail. The application is accepted, and the petitioner is enlarged on bail on furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.