SALAHUDDIN PANHWAR, J..---Through instant application, .Applicant has sought his release under section 497, Cr.P.C. In Crime No,171 of 201.4 registered with PS Market, Hyderabad for offence under section 23-A, Sindh Arms Act.
2. Precisely, relevant facts of the prosecution case are that on 15.9.2014 at 0350 hours complainant SIP/SHO Muhammad Iqbal Khuwaja lodged the report wherein stating that an unlicensed pistol of .30 bore along with magazine was recovered from possession of Yaqoob Lal son of Muhammad Siddiqu Bozdar who was already arrested in Crime No, 170/2014 of PS Market Hyderabad under sections 324, 353, 34, P.P.C., therefore/Instant FIR was lodged.
3. Learned counsel for the applicant inter alia contended that case against the applicant/accused calls for further probe as applicability of section 23-A of the Act requires determination; applicant/accused was arrested from Karachi four days prior to alleged incident for which his brother moved an application to SHO PS Pak Colony Karachi on 12.9.2014 and also lodged his NC report; applicant/accused is severely injured and he is suffering from other chronic disease such as hepatitis C, is kidneys are not functioning properly. In support of his such contention he referred to laboratory reports, attached with bail application; no, private witness is cited though alleged place of incident is a busy place. In support of his contentions, learned counsel has placed reliance on the following case law 1990 SCM R 1085, 1998 SCM R 454; 2012 SCM R 1955; PLD 1989 SC 585; 2007 PCr.LJ (Karachi) 895; PLD 1995 SC 34; 2012 P. Cr.LJ (Sindh) 1601; 2014 YLR (Shariat Court (AJ&K) 374; 2014 MLD (Sindh) 1123.
4. Conversely learned D.P.G for State has opposed the bail plea while arguing that applicant/accused is involved in number of cases and he is prima facie linked with offence with which he is charged. He placed reliance on the case of Shah Jehan v. The State reported as 2014 PCr.LJ 1767.
5. Heard learned counsel for the applicant and perused the record.
6. The case law, referred by the learned D.P.G. i.e Shah Jahan v. State (2014 FCr.LJ 1767) seems to have concluded that: '... And there is no doubt that the pistol is also a firearm, no matter it is also included in the definition of arms with other ' list of weapons.'
Observing so, it was concluded, while declining bail application, that recovery of an unlicensed pistol will make out an offence within meaning of section 23(1)(a) of the Sindh Arms Act. Since, I am authore of the judgment, reported as PLD 2014 Kar. 282, wherein view, while deciding bail application, was: 'the pistol since falling within meaning of definition of 'Arms', provided in section 2(e) of Sindh Arms Act, 2013 therefore, such offence falling within meaning of section 24 of the Act which provides lesser punishment than that of section 23(1)('a) of the Act'.
7. With every respect and self-effacement, I would like to revisit the relevant previsions of Sindh Arms Act but keeping in view some basic principles of interpretation which are:-
(i) "Thus applying the well recognized rule of interpretation of Statute that no word used by law marker is either redundant or can be subtracted, substituted, added or read in a piece of legislation or a document Hasnat Ahmed Khan v. Institution Officer (2010 SCMR 354).
(ii) .... Firstly nothing could be added or read in a provision of law which is not provided therein by the legislature. (Lanvin Traders, Karachi v. Presiding Officer, Banking) 2013 SCM R 1419."
(iii) "It is settled proposition of law that Courts have only power to interpret the law as laid down by this Court in various pronouncements. See Zia-ur-Rehman's case PLD 1973 SC 49. In the garb of interpretation, the Courts have no power to add or omit even a single word from the provision of law. (Khan Gul Khan v. Daraz Khan (2010 SCMR 1264)."
(iv) "The construction put on the words 'for the time being" occurring in section 9(1) ibid, to say the least, is against all the canons of interpretation of statutes: one such rule being that nothing is to be read into a statute which is not expressly enacted therein. (1996 SCM R 1264)."
(v) "Where a word of wider meaning is included in a string of genus describing terms of narrower meaning, the genus may operate to restrict the meaning of the wider word so as to keep it within the genus. Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Haj, Zakat and Ushr (2011 SCM R 1621).
(vi) "If two interpretations of a provision of criminal statute are susceptible the interpretation which favours to the accused/ convict should be preferred (1998 SCM R 1794)."
(vii) "It is cardinal rule of interpretation that objects made Reasons of a statue is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the Statute its ordinary language is obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the Statute itself declares the intention of the Legislature and in such a case it would not he permissible for a Court to interpret the statute by examining the object and reasons for the Statute question. Mumtaz Hussain v. Nasir Khan (2010 SCM R 1254):
8. The above well established principle of interpretation are sufficient to limit the jurisdiction of the Court while interpreting any Act, Statute, document or provision/section etc. Thus, I feel myself quite safe in holding that this court cannot legally add, subtract or even presume something which is not provided by the plain words, used in a section. The key-terms (definitions, provided by the statute/Act etc.) are always to be taken as deliberate one by legislature hence should always be given their due meaning and weight. The key-term, whenever, appearing in a statute, Act or section will be required to be given the same meaning as the Statute/Act itself defines.
9. The section 2 of the Act deals with key-terms, so used in the Act, so as to take the 'key-terms' per its given meaning while understanding or interpreting any provision thereof as this is to understand,' define purpose and limitation(s) of the Act and its provisions (sections), therefore, importance thereof cannot be denied nor it could be taken as junk of words for no purpose. Since the issue, revolves round the key-terms 'arms' and 'firearms' therefore I would only refer the same which are: Section 2(c) "arms" means articles, designed as weapons of offence or defence and includes rifles, pistols, revolvers, grenades, swords, bayonets, and other lethal weapon. It shall also include machinery (and its parts) for manufacturing arms, but excludes articles designed solely for domestic or agricultural purposes and weapons incapable of being used otherwise that as toys or being converted into serviceable weapons; Section 2(d) 'firearms' means weapons designed to discharge a projectile or projectiles of any kind by the action of gun powder or any explosive or other forms of energy and includes-
(i) artillery hand grenades, riot-pistols or weapons of any kind designed for the discharge of any noxious liquid, gas etc.;
(ii) accessories for any such firearm, intended to diminish the noise or flash caused by the firing thereof;
(iii) parts of, and machinery for manufacturing fire-arms; and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery; Thus, the legislature have deliberately classified the terms 'arm' and "firearm" therefore, in my humble opinion, within well established principles of interpretations, such classification cannot be legally taken as 'redundant' or without any object or purpose nor the one would be justified in excluding a specified thing from one classified category to another as it would amount to making, the key-term redundant which the Court is not competent.
10 The word 'pistol' is specifically mentioned in the category of 'arms' as such a plain and ordinary meaning thereof is to be taken. Thus any labour on the terms 'projectile', 'firearm' or 'arm' with reference to respectable dictionaries or other related laws cannot allow one to jab it into category of other classified, 'key-term' particularly when such jabbing shall amount the exclusion (deletion) thereof from the defined 'key-term' by the Act itself.
11. Here another aspect requires to be given due weight to the wisdom of the legislature in classifying/categorizing the key-terms 'arms' and 'firearms', which wisdom also becomes evident when the Legislature defines the boundary of offence(s) by using these 'key-terms' which have different ingredient(s) therefore different punishment(s). The deliberate classification/categorization is meaningful because 'one who chooses to hold unlicensed pistol, revolver, sword etc cannot be equated with the one who carries (or found in possession of) artillery hand grenades, riot-pistols or weapons of any kind designed for the discharge of any noxious liquid, gas etc'. Not only the act but the gravity thereof also matters which the Legislature always keep in mind else the concept of 'Law and justice' shall fail which believes in less punishment for lesser criminal act and greater punishment for greater criminal act... For convenience let's have a comparative look at both Sections i,e, sections 23 and 24 of the Act.
Section 23(1)---Whoever acquires, possesses, carries or control any firearm or ammunition in infringement of section 3, shall be punishable with imprisonment for a term which may extend to fourteen years and with fine; Section 24. Punishment for possession of arms with intent to use for unlawful purpose:- Whoever - possesses arms or ammunition licensed or unlicensed with the aim to use them for any unlawful purpose or to facilitate any other person to use them for any unlawful purpose shall, whether such unlawful purpose has been materialized or not, the license holder, the user and the person who has no license, be punishable with imprisonment for a term which may extend to ten years.
Needless to mention here that the term 'holding/possessing an unlicensed arms' can be for no other purpose but 'unlawful purpose' because knowingly possessing the unlicensed weapon in itself is unlawful, therefore the classification/categorization of the 'arms' and `firearms', provided by the Act itself cannot be brought to redundancy. One who is found in possession of unlicensed 'arms' can be punished under section 24 of the Act, if he is found guilty at the culmination of trial. If the 'pistol' is allowed to be included in term of firearm' and one is punished under section 23(1)(a) then how he will escape punishment from section 24 of the Act which shall come into play the moment one if is found in possession of 'unlicensed arms. This would amount to punishing one for two offences for a single offence which the law can, never, approve. At this juncture, must add here that .Interpretation demands that it should be made in the way to save the enactment but not to destroy it.
12 Let me add here that even, judgment referred by learned DPG, it was not disputed that: In Para 12 of the said judgment it was mentioned that: Let me make more emphasis that sections 23(I)(a), 24 and 25 all have all together different premise and foundation but in the case in hand, section 23(1)(a) is under discussion.
While concluding the para-12 of the said judgment it was acknowledged that: So in my view, while deciding the hail application this distinction needs to be drawn keeping in view the discrete premise of these sections'.
The above observation(s) are also of significance that even in that judgment the discrete premises and foundations of sections 23, 24 and 25 of the Act were acknowledged but surprisingly the 'pistol' was excluded from the definition of key-term 'arms' (section 2(c)) and was held to be included in key-term 'firearm' (Section 2(d)) of the Act although such jurisdiction is not available with the Court permission to interpret the law does not allow the Court to exclude and include the words of its choice into section(s) as this is the absolute domain of the Legislature.
13. In view of above legal position, with every and self-effacement I am not inclined to agree with the conclusion drawn in the referred case and cannot swallow exclusion of 'pistol' from section 2(c) and its inclusion in section 2(d) of the Act, particularly when such approach is not permissible by the law itself. If the legislature themselves have sketched a line between 'firearm' and 'arms' and have provided different punishments for such two distinct key-terms then it would not be safe to deprive the accused from such benefit. Thus, I am still of the opinion that the recovery of unlicensed pistol will be falling within .Meaning of section 24 of the Act, hence application of section 23-A of the Act, in instant case requires further probe. The Court is not precluded from applying proper section while framing the charge or passing the judgment because the ingredients of the offence matters and not mere mentioning of section in the column of the FIR or Challan. The section 24 of the Act provides punishment upto 10 ten years. Besides, it is settled principle of law that while deciding bail application, lesser punishment is to be considered.
14. The applicant/accused has claimed his -arrest much earlier from one claimed by the prosecution as date of incident and has also produced material in support of such claim, which also makes the case one of further probe. Further, the applicant/accused also appears to be suffering from chronic diseases and is under treatment in Civil Hospital, (as per report). The prosecution also does not claim the custody of the applicant/accused, therefore, keeping the applicant/accused in custody would not advance the cause of Justice. Accordingly, bail is granted to the applicant in the sum of Rs, 50,000/- and P.R. Bond in the like amount to the satisfaction of trial Court. #EndJudgment