' Common question of law being involved, judgment in the instant Bail Application No,1124 of 2001, shall also dispose of Bail Applications Nos.1125 of 2001, 1126 of 2001, 1127 of 2001 and 1231 of 2001, filed by Nek Akhtar, Hameed Gul, Zaidullah and Satana Gul respectively.
2. The first four bail applications pertain to one raid/occurrence where four persons are apprehended but charged under different F.I.Rs, Vide F.I.R. No,410, dated 24-6-2001 of Police Station Batagram, the accused Zaidullah was apprehended with one kalashnikov and a hand grenade and thus, charged under section 13, Arms Ordinance read with section 216, P.P.C. And section 7, Surrender of Illicit Arms Act, 1991.
3. Hameed Gul accused was charged vide F.I.R. No,414 of the same date, time and place under section 13, Arms Ordinance, section 7 of Surrender of Illicit Arms Act and section 5 Explosive Substances Act for the recovery of one kalashnikov and a hand grenade.
4. Janas Khan was similarly charged vide F.I.R. No,415 for the recovery of a rifle of .303 bore and a hand grenade while Nek Akhtar is attributed one kalashnikov and a hand grenade under the same sections.
5. Satana Gul is charged under section 13, Arms Ordinance, section 4 of Suppression of Terrorist Activities Act and sections 7/12/21 and 91 of, Surrender of Illicit Arms Act, 1991 vide F.I.R. No,377, dated 4-9-2001 of Police Station Nasir Bagh, Peshawar.
6. With regard to the merits of the case, it was argued that serial number of the hand grenade mentioned in the F.I.R., as well as the recovery memo. Is not given in the report of Bomb Disposal Squads and hence it rightly remains yet to be determined at trial as to which hand grenades were at all examined by the Expert. Being cheap material, the chances of plantation cannot be excluded.
7. In case of Satana Gul, section 4 of Suppression of Terrorist Activities Act is not applicable because the said Act, admittedly stands repealed with effect from the 14th of August, 2001, whereas, the recovery from him of a kalashnikov with rounds was effected on 4-9-2001. The case would be dealt with, now under the Anti-Terrorism Act of 1997, as amended by Ordinance XXXIX of 2001 promulgated on 14-8-2001. It would remain yet to be decided at trial as to whether the petitions before me do fall within the definition of terrorism as given in section 6 thereof. Unless it is so decided, the cases would normally fall under section 13, Arms Ordinance, which is bailable,
8. The only section that falls within the prohibitory clause of section 497, Cr.P.C. Is section 7 of Surrender of Illicit Arms Act, 1991. The Interior Division of Government of Pakistan through S.R.O.
(I)/2001 issued on the 15th of June, 2001, exercising powers under subsection (3) of section 1 of the Surrender of Illicit Arms Act, 1991 and on the recommendation of Provincial Government had made the aforesaid Act applicable to the North-West Frontier Province with effect from 20th June, 2001.
The Notification contained the words, that the said Act shall come into force accordingly and with effect from 20-6-2001. It is, therefore, clear that Surrender of Illicit Arms Act, 1991 stood enforced in N.-W.F.P. With effect from 20-6-2001.
9. To possess arms without licence or permit is by itself an offence under the Arms Ordinance. It becomes illicit and an offence under Surrender of Illicit Arms Act only, when the Government calls upon the public to surrender such arms within a specified time and the arms are not accordingly surrendered within such period or within the extended period, as the case may be.
10. The aforesaid time limit is provided under section 4 of Surrender of Illicit Arms Act, which lays down that all persons in possession or control of any illicit arms shall surrender such arms within such time as is notified by the Federal Government. This section makes itself incumbent upon the Federal Government to issue a `Notification specifying the time within which every person has to surrender the arms. It is of prime importance because without issuance of such Notification by the Federal Government, the public would never know the time frame within which the arms are to be surrendered. This is important from another aspect as well, because the arms surrendered within such notified period would not constitute any offence.
11. The specification of time frame notified under section 4 is further highlighted by section 5 of the Act, when it refers to a person on a lawful visit abroad. Section 6 of the Act further lays emphasis that such time limit has to be given wide publicity on .The media including television, radio, national and regional Press in Urdu, English and regional languages or by any other mode prescribed. Such publicity is so important that a countdown of every expired day of the period allowed for surrender of illicit arms, is also bound to be given on the media within the contemplation of section 6(2) of the Act. Section 9 of the Act further emphasises the need for a time frame because it is only on the expiry of that period that a campaign for the recovery of illicit arms shall be launched in a coordinated manner by Federal and Provincial Governments etc.
12. The crux of all discussion above is, that nothing can be called an offence under the Act unless a separate Notification under section 4 of the Act is issued by the Federal Government. Such Notification is altogether different from Notification under section 1(3) of the Act, which deals only with the enforcement of law and not with the declaration of the Government as to the time period under which the arms are to be surrendered. The people are not bound to surrender the arms merely because the Act stands enforced in the Province until and unless they have been given a specified period of surrender the arms through specific Notification issued by the Federal Government under section 4 of the Act.
13. The learned State Counsel could not produce any such Notification issued under section 4 of the Act. The case was adjourned and they were given time to produce any such Notification but they failed so, to do. Even the matter was enquired from Law Division, Islamabad but the reply was, that they are not in possession of any Notification other than S.R.O.(I)/2001 issued on 15th June, 2001, under section 1(3) of the Act. What the learned State Counsel could produce before the Court was Notification No,SO(Arms)/HD/2-23/2001, dated 20-6-2001, issued by the Government of N.-W.F.P., Home and Tribal Affairs Department. A perusal of such Notification would indicate, that it is nothing but the conveyance of the same Notification dated 15-6-2001 of the Federal Government, for information to the Inspector-General of Police, N.-W.F.P. And all Commissioners in N.-W.F.P. This is not at all a Notification under section 4 of the Act and even otherwise, it could not be issued by the Provincial Government because section 4 of the Act empowers the Federal Government to issue Notification regarding time frame, though of course, under the recommendation of Provincial Government. Neither there is any recommendation by the Provincial Government under section 4 of the Act, nor any Notification issued by the Federal Government. Consequently, no recovery of arms can be considered an offence under Surrender of Illicit Arms Act unless the time frame for surrender is specifically given through a Notification by the Federal Government within the contemplation of section 4 of the Act.
14. The above discussion would lead to the conclusion that the recoveries in question would not fall within the prohibitory clause of section 497, Cr.P.C. All the applications are accepted and the accused-petitioners are directed to be released on bail provided a bond in a sum of Rupees one hundred thousand with two local reliable and resourceful sureties is furnished to the satisfaction of Ilaqa Magistrate.