1. ' By this order I propose to dispose of Criminal Bail Application No,492 of 2001, filed on behalf of Irshad Ahmed Shaikh in a case bearing F.I.R. No,56 of 2001 of Police Station Rohri for an offence under section 13-D, Arms Ordinance read with section 7(c) of Illicit Arms Act, 1991.
2. ' The bail plea of the applicant was declined by the two Courts below namely Civil Judge and F.C.M., Rohri and the learned Sessions Judge, Sukkur vide dated 19th July, 2001 and dated 7th August, 2001, respectively.
3. ' The prosecution story as enunciated in the F.I.R. Is that on 4th July, 2001 at 1-10 p.m. Complainant S.I.P./S.H.O. Haji Masoodur Rasool Mehar appeared at Police Station Rohri and lodged F.I.R. On behalf of the State alleging that on the same day he alongwith the police party, comprising A.S.-I. Ayoob, H.C. All Hassan Bozdar, P.C. Mansoor Ahmed and P.C./Driver Muhammad Panjal, left police station vide Entry No,10-1100, dated 14th July, 2001 for the purpose of patrolling and at 12-00 noon while patrolling, when they reached Haider. Shah Haqqani near Iraq Mosque, they received spy information that one person by name Irshad Shaikh having country-made pistol and cartridges was standing nearby graveyard situated in Memon Mohallah. Such information was conveyed to the staff and thereafter the complainant party proceeded towards the noted place. At 12-30 noon when they reached the graveyard in Memon Mohallah, they found one person standing there who after finding police party in uniform managed to escape. The police party stopped mobile and encircled the accused who, later on, disclosed his name as Irshad Ahmed Shaikh resident of Memon Mohallah Rohri, Sukkur. He was apprehended at the spot in presence of the Police Mashirs A.S.-I. Muhammad Ayoob and H.C. Ali Hassan Bozdar. The accused was bodily searched and from the fold of his Shalwar one country-made pistol of .12 bore was secured from his possession alongwith four live cartridges of red colour. It was in working condition. The pistol was unloaded and one .12 bore live cartridge was found in its chamber, the same was also secured. On further search, three more cartridges of .12 bore were also secured from the right side pocket of the shirt.
4. On enquiry the accused disclosed that the pistol is without licence from his possession. Nothing else was secured. The property and the accused were brought at police station where an F.I.R. On behalf of the State was lodged.
5. ' The investigation followed and in due course the applicant was sent up to stand trial in the Court of Civil Judge and F.C.M., Rohri. During the pendency of application for bail before the learned trial Court on 13-7-2001, beside section 13-D, Arms Ordinance, section 7(c), S.T.A. Act, 1991 was added and thereafter final challan was submitted on 14th July, 2001. On 19th July, 2001 the learned Civil Judge and F.C.M., Rohri passed the following order:-- "Initially S.HO. Lodged F.I.R. For offence under section 13-D, Arms Ordinance but after due investigation he submitted challan for offence under section 7(c), S.T.A. Act read with 13-D, Arms Ordinance. Learned Advocate for applicant/accused filed present bail application in the meanwhile.
6. ' Since the offence under section 7(c), S.T.A. Act is triable by the Honourable Sessions Court, therefore, bail application is dismissed for want of jurisdiction."
7. As against the above order, learned counsel for the applicant made an application for bail in the Court of Sessions Judge, Sukkur who by an order, dated 7th August, 2001 dismissed the same in the following terms:- "A country-made pistol with four live cartridges are secured from the possession of applicant/accused. According to 'Hlulia' form applicant/accused is of about 19 years and no proof of tender age is produced by the applicant/accused in proof of his contention. Cases of Illicit Arms are being increased day by day and the offence under section 7-C of Surrender of Illicit Arms Act is punishable up to 14 years. Hence in the circumstances, I do not find, the case of applicant/ accused fit for grant of bail as no specific enmity is suggested for false implication in the case.
8. Consequently, bail application is dismissed."
9. ' Heard Mr. Ahmed Ali A. Memon, the learned counsel for the applicant and Mr. Abdul Sattar Soomro learned Advocate appearing on behalf of the State. It has been contended by the learned counsel for the applicant that the case against him is false who has been involved due to enmity and malice. It has also been contended that as for section 13-D, Arms Ordinance is concerned, the same is punishable up to seven years which is not covered by prohibitory clause of section 497(1), Cr.P.C. He has also argued that the complainant and all the witnesses are police employees and none from the independent persons had acted as Mashir though the recovery was made from a place which is a thickly populated area of Rohri Town which is in contravention of section 103, Cr.P.C. Learned counsel has further argued that section 7(c) of S.T.A. Act, 1991 has been applied at the belated stage with mala fide intention so that the offence should look more graver being punishable up to 14 years otherwise it has no relevancy on the facts and circumstances with this case. He has referred to section 2 of the Illicit Arms Act, 1991. It would be advantageous to reproduce section 2 of the said Act in extenso:-- "2. Definition.--- (1) In this Act, unless there is anything repugnant in the subject or context,--
(a) 'illicit arms' includes--
(i) cannon as defined in the Pakistan Arms Ordinance, 1965 (W.P. Ordinance No,XX of 1965) excluding sub-machine guns, and their silencer and revolvers or pistols of over 46 inches bore;
(ii) all types of explosive substances as defined in the Explosive Substances Act, 1908 (VI of 1908), and the Explosives Act, 1884 (IV of 1884), including mines of all types;
(iii) all types of containers, grenades, bombs and shells that discharge poisonous or noxious gases or other chemical or substances which cause damage to human body;
(iv) fire-arms comprising automatic weapons (other than machine guns) including sub-machine guns, automatic rifles and machine pistols; and
(v) rifles, carbines, mustkets, shotguns, revolvers, pistols and appliances and object of which is the silencing of fire-arms and all other fire-arms not including in sub-clause (iv), which are held or possessed in contravention of the provisions of the Arms Act, 1878 (XI of 1878), the Explosives Act, 1884 (IV of 1884), the Explosive Substances Act, 1908 (IV of 1908), the Pakistan Arms Ordinance, 1965 (W.P. Ordinance (XX of 1965), or any other law for the time being in force.
(b) 'prescribed' means prescribed by rules made under this Act.
(2) The Federal Government may, by notification in the official Gazette, declare any article, substance, arms ammunition or military stores not specified hereinbefore which is held or possessed in contravention of any law as illicit arms, ammunition or explosives for the purpose of this Act."
10. ' A careful study of subsection (1)(a)(v) of section 2 shows that only such weapons are covered by this Act, the object of which is the silencing of fire-arms and all other fire-arms are included in sub- clause A (iv). Since the appliance recovered from applicant Ahmed Ali Memon is gun which has no relevancy of silencing approach, therefore, same is not covered by the Illicit Arms Act, 1991. The total and accumulative effect of the discussion is that the Surrender of Illicit Arms Act, 1991 has no applicability on the facts and circumstances of this case. On all these scores, the learned counsel for the applicant states that it is a fit case where the bail could be granted to the applicant.
11. ' Learned counsel for the State concedes to the above legal position and raised no objection to the grant of bail.
12. ' For what it has been discussed above, I am of the considered view that the learned counsel for the applicant has been able to make out a case for bail which, accordingly, is granted to the applicant, Irshad Ahmed Shaikh, and he shall be released forthwith provided he furnishes surety in the sum of Rs,1 lac and P.R. Bond in the like amount to the satisfaction of the trial Court.