SH. AMJAD ALI, J:- Ghulam Hussain has applied to be released on bail in case registered under Section 13A of the Pakistan Arms Ordinance 1965 (XX of 1965). Vide FIR No. 261/97. Dated 30.3.1997, at Police Station Civil Lines, Gujrat, for possessing an unlicensed 30 bore pistol with to live cartridges.
2. The facts as transpired from the aforesaid FIR that in the early hours of 30.3.1997 while on patrol duty Muhammad Afzal, ASI. Police Post Shaheen, Gujrat, accompanied by constables Muhammad Aslam. Arif Baig and Muhammad Anar at Sargodha Road in front of New Prince Video Centre they found the present petitioner, a resident of Basti Fazalabad Jaslani More. Warbarton. District Sheikhupura. Who tried to skip away suspiciously therefrom. On search, he was found to be in possession of a loaded 30 bore pistol numbering FF 10103 with to live cartridges. The petitioner could not produce any license for possession of the said pistol. The aforesaid case, was. Therefore, registered against the petitioner who was consequently apprehended.
3. The petitioner initially applied for bail to the Court of Sessions and the learned Additional Sessions Judge, Gujrat, who was entreated the said application rejected the same by his order, dated 15.4.1997 on the ground that the case fell within the prohibitory clause as the punishment of the offence was imprisonment for life. The petitioner has, therefore, moved this Court for the same relief.
4: Mr. Sami Ullah Khan, Advocate representing the petitioner contended that section 13A of the Pakistan Arms Ordinance, 1965, which was added by virtue of the Pakistan Arms (Amendment)
Ordinance. 1997 (XLII of 1997), stands repealed as the same was not re-promulgated, hence the charge under section 13A ibid had lost its efficacy. Similarly the offence under section 13 of the said Ordinance was a bailable offence which entitles the petitioner to be released on bail forthwith.
5. It is true that the aforesaid amending Ordinance which was promulgated on the 2nd March, 1997, stood repealed by efflux of time with effect from the 1st July. 1997, as the same was not re- promulgated although under the provisions of Article 89 (2) of the Constitution it has already been laid before the National Assembly for consideration as a bill. The attention of the learned counsel for the petitioner was, however, draw n to the provisions of Article 264 of the Constitution which, inter alia, provide that where a law is repealed, or is deemed to have been repealed, by. Under, or by virtue of the Constitution, such repeal shall not. Except as otherwise provided in the Constitution, affect any investigation, legal proceeding, remedy, penalty, forfeiture punishment or and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment amy be imposed. as if the law had not been repealed. In view of this provision, notwithstanding that the repealed section 13A as added by the Pakistan Arms (Amendment) Ordinance, 1997 (XII of 1997), the petitioner can be proceeded thereunder as he was apprehended on the date when the said provision was still in. Forcer In this respect, reliance is also been placed on Mubarik Shah v. The State (1990 PCrLJ 1796) where in the same principle was upheld.
6. The case of the petitioner falls under subsection (2) of section 13A ibid whereunder the punishment for keeping any firearm without any license 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 ' seven year. In this regard, there is quite a force in the contentions of the learned counsel for the petitioner that where an alternate punishment is less than 10 years imprisonment the offence shall not fall within the prohibitory clause. Similarly, under section 13 of the said Ordinance, the punishment for keeping unlicensed arms or ammunition is also seven years. The petitioner is in judicial lock-up for the last over five months and he is not required for any further investigation. Admittedly, there is no likelihood of early trial. It would, therefore, not be expedient to keep the petitioner in jail for an indefinite period. In Azeem etc. v. The State (1997 PCrLJ 658), it was laid down that it is a settled principle that the law is not to be stretched in favour of-the.
Prosecution nor the bail should be denied as a punishment. In view there of the petitioner is admitted to bail subject to his furnishing bail bond to the tune of Rs.20,000/- with to local sureties in the like amount to the satisfaction of the trial Court. The bail application is disposed of accordingly.