' ROOH-UL-AMIN KHAN, J.---This single order shall also decide Criminal Miscellaneous B.A. No,1044-P of 2012 entitled "Gul Rehman v. The State" because the petitioners in both the petitions are seeking bail in case F.I.R. No, 310 dated 12-7-2012 registered for crimes under sections 13/14, Arms Ordinance by Police Station Sheikh Maltoon, Mardan.
2. Facts of the case are that on 12-7-2012 at 1600 hours, on a tip off, Haji Muhammad Rauf Khan along with police contingents has led "Nakabandi" at Main Mardan Nowshera Road near Behrain Khan Killy, in the meanwhile, a motorcar bearing Registration No,B-3997/Swat coming from Nowshera side was signalled to stop and intercepted. The driver disclosed his name as Madad Khan while the person sitting on,the front seat disclosed his name as Gul Rehman. On search from the secret cavities, a huge quantity of arms and ammunitions i.e, .12 bore repeaters 12 in numbers, .30 bore pistols 30 in numbers, round chargers 12 in numbers, ordinary charger 18 in numbers, five small pistols MR-5 type and 800 live rounds of different bores i.e, 5000 live rounds of .9MM and 3000 of .30 bore were recovered. The accused were arrested and a case under the above sections of law was registered against them.
3. Learned counsel for the petitioners while arguing referred to Schedule-II of Code of Criminal Procedure, 1898. According to which, all offences against other laws are non-bailable except section 13 of the West Pakistan Arms Ordinances, 1965 which is bailable. He also argued that section 14 of the Ordinance (ibid) is not attracted to the present case, which provides certain breaches of sections 4, 5, 9 and 21. To substantiate his point, he referred to subsection (b) of section 14 of Ordinances (ibid) and argued that in the instant case, search has not been conducted by the Magistrate under section 21 of West Pakistan Arms Ordinance, 1965. He further added that no independent witness has been associated by the local police and the petitioners have falsely been implicated in the instant case. The recovery has been effected from the secret cavities of the motorcar and the conscious knowledge of the petitioners has yet to be proved. The Arms Expert report is not available, on file to ascertain the nature and kind of alleged recovered arms.
4. Having been heard the learned counsel for the parties and perused the record, which would reveal that huge quantity of costly weapon has been recovered from the secret cavities of the motorcar, being driven by Madad Khan, while Gul Rehman co-accused was sitting in the front seat.
The petitioners were carrying the illicit arms and ammunitions to Malakand Agency, which has remained under insurgency and influence and threats of militant and miscreants for sufficient long time which had wreaked a havoc in the entire peaceful quarter of the Province, ultimately necessitated the military operation in Swat and Malakand area. Transportation and selling of illicit arms and ammunitions, in contravention of Arms Ordinance, 1965 have created an anxious and insecured situation and state of affairs in the country. The excessive quantity of illegal and illicit arms and ammunitions converting, even the youth and educated segment of society into criminals. In all the metropolitan cities of the country; target killing, with the help of such arms has became a fashion and routine matters of the day.
5. The object of West Pakistan Arms Ordinance, 1965 is to consolidate and amend the laws relating to the sell, transport, bearing or possession of arms and ammunitions or military store in prescribed manner. The main object and purpose of the Ordinance appears to regularize the possession of weapon etc. And thereby to identify/misuse of the same so that the lives and properties of innocent people are properly safeguarded. The Hon'ble Supreme Court of Pakistan in the case "Ismaeel v. The State (2010 SCM R 27) has laid down the law while holding that it is settled law that preamble and object is always be kept in mind by interpreting the provision of the Act on the well- known principle that preamble is key to understand the Act.
' Initially, the punishment under section 13 of the Arms Ordinance, 1965 was provided to the extent of three years. The West Pakistan Arms Ordinance, 1965 was amended by Act-LII of 1973, in pursuance whereof sentence under section 13 has been enhanced from three years to seven years. Prior to this amendment, on 28th May, 1971, the Ordinance IX of 1971 was promulgated and published by the Governor of the Punjab, whereby Schedule-II of Code of Criminal Procedure, 1898 was amended.
The text of Ordinance-IX of 1971 is reproduced:-- "Preamble.---Whereas it is expedient to further amend the Code of Criminal Procedure, 1898, in its application to the Province of the Punjab, in the manner hereinafter appearing; ' Now, therefore, in pursuance of the Martial Law Proclamation of 25th March, 1969, read with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the Governor' of the Punjab is pleased to make and promulgate the following Ordinance:-
(1) Short title, extent and commencement.---(1) This Ordinance may be called the Code of Criminal Procedure (Punjab Amendment) Ordinance, 1971.
(2) It extends to the whole of the Punjab.
(3) It shall come into force at once.
(2) Amendment of Schedule II of Act V of 1898.---In the Code of Criminal Procedure, 1898, in its application to the Province of the Punjab, in Schedule II.
(i).
(ii)..
(iii) Under the heading "Offences against other Laws", against the second entry, in Column 5, for words and commas the Arms Act, 1878, section 19", the words and commas "section 13 of the West Pakistan Arms Ordinance, - 1965" shall be substituted".
6. From the very preamble and applicability of the above said Ordinance, it is clear than crystal that the above mentioned amendment was made only to the extent of Punjab and is not applicable to the other Provinces. A similar question was decided by the Hon'ble High Court of Balochistan, Quetta in a Suo Motu Reference No,1 of 1996 (1996 M LD 2036) in the following words:- "The West Pakistan Arms Ordinance, 1965 was amended by Act LII of 1973, in pursuance whereof, sentence under section 13 of the principal Ordinance has been enhanced from three years to seven years, whereas prior to this amendment, Province of Punjab vide an amendment in Criminal Procedure Code, by means of Criminal Procedure (Punjab Amendment) Ordinance, 1971 (Ordinance IX of 1971), amended Schedule-II to Act V of 1892 and directed that heading relating to offence against other laws to the extent that against the second entry in column-V for the words and commas. The Arms Act, 1878, section 19, 'the words and commas' section 13 of the West Pakistan Arms Ordinance, 1965 be substituted. No such amendment in the Code of Criminal Procedure was made, as far as the Province of Balochistan is concerned, because the Arms Act, 1878, is still applicable and its Provincially Administered Tribal Area. Therefore, criteria to determine whether an offence is bailable or non-bailable in other laws, remained the same i.e, the offence punishable with three years not exceeding seven years, shall not be bailable. In this behalf, an identical proposition was examined by the Sindh High Court in a judgment reported in 1990 ALD 477(2) and held that the offences under section 13 Arms Ordinance, as applicable in Sindh are not bailable".
7. In view of the above cited judgment and legal position, the arguments advanced by the learned counsel for the petitioners, that section 13 Arms Ordinance is bailable, is not persuasive, thus, repelled. The afence falls under the mischief of section 13 of the West Pakistan Arms Ordinance 1965 are non-bailable in all Provinces, except the C Province of Punjab.
8. The non-compliance of section -103, Cr.P.C. Would not be discussed at this stage, however, suffice it to say, that the main object of section 103, Cr.P.C, is to ensure the search and recovery in honest, fair and transparent manner. Besides, in the instant case, the petitioners have come across with the police all of sudden, particularly in a motorcar, thus, in such eventuality compliance of section 103, Cr.P.C. Would not be possible.
9. A huge quantity of Arms and Ammunitions has been recovered from the secret cavities of motorcar, which is owned and possessed by the petitioner. The motorcar, being driven by the petitioner, was under his direct control while the co-accused was sitting on the front seat. At this= stage, the petitioners could not be absolved from the liability on mere assertion that he was not in- the knowledge of existence of such a huge quantity of Arms and Ammunitions in the secret cavities of the motorcar.
10. In the present alarming situation of the province, the transportation of such a huge quantity of Arms and Ammunitions without any licence or permit is not an ordinary selling or possession of the arms, rather shows its transportation for subversive activities and ulterior motives of the petitioner.
Prima facie, reasonable grounds exist to connect the accused-petitioners with the commission of a non-bailable office and are not entitled to the concession of bail.
11. Resultantly, these bail applications are dismissed.