' This order shall dispose of the bail applications cited above, as a common point of law is involved in all these matters.
2. The applicants in these cases were arrested on different dates and F.I.R. Was drawn against each of them and after investigation they were booked for an offence punishable under section 7(1)(c) of the Surrender of Illicit Arms Act, 1971 (hereinafter referred to as the Act) on the ground that they were found in possession of illicit arms within the meaning of the Act. In the case of applicant Ramzan Ali (Bail Application No,1237 of 2001) the F.I.R. And challan both showed an offence under section 13-D of the Arms Ordinance but learned trial Court while rejecting the application for bail observed that the offence is punishable with 14 years as it has been committed in respect of illicit arms, and in this manner the Court has treated it an offence within the meaning of section 7(1)(c) of the Act. It is the case of prosecution that the applicants failed to surrender these arms, therefore, they committed the alleged offence.
3. Learned counsel for applicants have commonly agitated a legal point that a person would be guilty of an offence punishable under section 7(1) of the Act, 1991 if he fails to surrender illicit arms within the notified time, but such notification as contemplated and the section 4 of the Act has never been issued. They has placed reliance on an unreported order of this Court (Larkana Bench) in Criminal Bail Application Nos.S-572 of 2001, S-573 of 2001, S-597 of 2001 and S-603 of 2001, wherein similar point was agitated and on verification through the concerned Law Officer it was found that the requisite notification within the contemplation of section 4 of the Act has not been issued. In the instant matters learned State Counsel was allowed time to verify if the notification as aforesaid has been issued by the concerned quarters. Learned State Counsel after consulting the relevant authorities states that he has confirmed that till 29-9-2001 no notification under section 4 of the Act has been issued.
2. In order to appreciate the .Legal issue, it would be essential to reproduce the contents of section 7(1) of the Act.
"7. Punishment.--- (1) Whoever contravenes the provisions of section 4 or section 5 or fails to surrender illicit arms shall,--
(a) in respect of illicit arms defined in sub-clauses (i) to (iii) of clause (a) of section 2, be punished with imprisonment for life and forfeiture of property, both movable and immovable;
(b) in respect of illicit arms defined in sub-clause (iv) of clause (a) of section 2, be punished with imprisonment for life or with imprisonment for a term which shall not be less than ten years having regard to the antecedents of the accused; and
(c) in respect of illicit arms defined in sub-clause (v) of clause (a) of section 2, be punished with imprisonment for a term which may extend to fourteen years but shall not be less than three years, having regard to the antecedent of the accused."
3. The predominant requirement prescribed under subsection (1) for bringing an offence within domain of section 7 of the Act, is contravention of section 4 or section 5 of the Act. Section 4 of the Act calls upon all persons in possession or control of any illicit arms to surrender such arms within the time notified by Federal Government to the Deputy Commissioner, Assistant Commissioner or Incharge of the police station within whose jurisdiction such person ordinarily resides or to such other authority specified by the Federal Government by notification in the official Gazette.
4. Although it looks to be quite strange that the concerned quarters failed to issue notification under section 4 of the Act, but since learned State Counsel confirms that such notification has not been issued upto 29th September, 2001, it is made out that on the date of commission of alleged offence in these cases there was no apparent contravention of section 4 of the Act. Consequently, the contention of learned counsel for applicants that ex facie the essential requirement of the offence under section 7(1) of the Act is lacking, carries much weight. It is for the prosecution to establish at the trial if the offence is made out, for the time being the case of applicants calls for further enquiry. Nevertheless, in the alternative if it is pleaded that the offence it yet punishable under section 13-D of the Arms Ordinance, the simple and plain answer would be that in that event the offence would not fall within the prohibitory clause of section 497(1), Cr.P.C.
5. In the circumstances, the applications are allowed. The applicants be released on bail on furnishing surety in the sum of Rs,50,000 each and executing P.R. Bond in the like amount to the satisfaction of the trial Court.