1. Application for urgency is granted.
2. Applicant Bahadur has applied for bail after arrest under section 497, Cr.P.C. He is facing trial for offence under section 13-D of the Arms Ordinance, 1965. It is alleged that he was found in possession of .303 rifle alongwith 30 live bullets and he had no licence for the said weapon and ammunition. He was taken in custody on 28-2-1989 and now he is in judicial custody and the challan is presented.
One legal ground on which this bail plea is urged is that offence under section 13-D of the Arms Ordinance was initially A punishable with imprisonment for three years which was in the year 1973 raised to 7 years, and subsequently in the year 1989 was raised to 10 years but in the Criminal Procedure Code in the Schedule this offence remains bailable. My attention has been drawn to section 511, Cr.P.C. In the Schedule under the caption "Offences Against Other Laws" provision is made that if offence is punishable with imprisonment for three years and upwards but does not exceed 7 years then in connection with that offence arrest is allowed without warrant and that case would be treated as not bailable making exception of cases under the Arms Act, 1878 with particular reference to section 19 thereof which is equivalent to section 13-D of the Arms Ordinance, 1965. By way of clarification it is mentioned at the bottom of the chart that by virtue of section 3(iii) of Criminal Procedure (Amendment) Ordinance (XI) of 1971 amendment has been made and words "the Arms Act 1978 section 19" have been substituted by the words "section 13 of West Pakistan Arms Ordinance 1965". It is further submitted that although this amendment was made in the year 1971 but subsequently when the sentence was raised to 7 years in the year 1973 and 10 years in 1989, no attempt was made of making consequential amendment in the Schedule of Criminal Procedure Code as stated above, from which inference can be drawn that perhaps intention of Legislature was to leave this offence as bailable in spite of the fact that sentence has been raised on two occasions as stated above. For the view mentioned above reliance is placed on the case of Shafiq v . State 1983 PCr.LJ 1296. Mr. Pirzada has stated at the Bar that against the order in the case of Shafiq v. State mentioned above legal position stated therein has not been disputed and no appeal has been filed against the said order, as such it has become final so far legal aspect is concerned. It is further stated at Bar by the learned counsel that no consequential amendment has been made in the Schedule of the Criminal Procedure Code to convert offence under section 13-D of the Arms Ordinance from bailable into non-bailable.
' On the factual side bail plea is urged on the ground that applicant is Zamindar and is respectable person and is an old man of 60 years. Applicant has a licence for shot-gun since 32 years which was originally issued on 25-10-1957. It is further stated that Abdul Karim son of applicant possesses 7 mm rifle and Shah Nawaz brother of applicant also possesses 7 mm rifle which are licensed in their names. These three licences in original have been shown to me which have been returned after perusal. It is further submitted that applicant is implicated in this case due to enmity of Sardar Ahmad Ali Khan Pitafi with whom relations of the applicant are strained on account of election dispute. It is also submitted that since applicant has legal and valid licence for a more effective and powerful weapon like a shot gun, there was no necessity for him to possess unlicensed .303 rifle which is not in frequent use nowadays.
' In the circumstances and for the facts and reasons mentioned above I am of the view that this case requires further enquiry, as such I admit applicant to bail in the sum of Rs,25,000 with one surety and P.R. In the like amount to the satisfaction of the trial Court.