This Order will dispose of 10 bail applications filed by Shamas Panhwar v. The State (Cr.B.A.No, S.561/2001), Hajan alias Papu v.The State (Cr.B.A. No,S-573/2001), Muhammad Paryal v. The State (Cr.B.A. No,S.572/2001), Uris Ghanghro v. The State (Cr.B.A. No,S-590/2001), Ghulam Nabi Ghanghro v. The State (Cr.B.A. No,S.591/2001) Mehrab Ghanghro v. The State (Cr.B.A. No,S.592/2001), Dodo Ghanghro v. The State (Cr.B.A.No, S.593/2001), Nizakat Ali v. The State (Cr.B.A No,S.597/2001) and Ali Haider v. The State (Cr.B.A No,S.603/2001). In all these cases the applicants have been booked under section 7(c) of the Surrender of Illicit Arms Act, 1991 (Act XXI of 1991) hereinafter referred to as the Act.
2. Before proceeding further the relevant sections 1, 4; 6 and 7(c) of the Act are reproduced hereunder: "Section 1.Short title, extent and commencement.---(1) This Act may be called the Surrender of Illicit Arms Act, 1991.
(2) It extends to the whole of Pakistan.
(3) It shall come into force in such areas and on such date as the Federal Government may, on recommendation of the respective Provincial Government, by notification in the Official Gazette appoint; and different date may be so appointed in respect of different areas." Section 4. Surrender of illicit arms.---(1) All persons in possession or control of any illicit arms shall surrender such arms within such time as is notified by the. Federal Government to the Deputy Commissioner, Assistant Commissioner or Officer Incharge of a Police Station within whose jurisdiction such persons ordinarily reside or to such other authority as may be specified by the Federal Government by Notification in the Official Gazette. Section 6. Publicity for surrender of illicit arms.--(1) The Federal Government and the Provincial Government shall give vide publicity to the provisions of this Act on the media including television, radio, National and Regional Press in Urdu, English and Regional languages or by any other mode as may be prescribed.
(2) There shall be publicly displayed a countdown of every expired day of the period allowed for surrender of illicit arms under this Act and number of days left for such surrender. Section 7. Punishments.--(1) Whoever contravenes the provisions of section 4 or section 5 or fails to surrender illicit arms shall, (a)
(b)
(c) in respect of illicit arms defined in sub-clause (v) of clause (a) of section 2, be punished with imprisonment for a term which may extend to fourteen years but shall not, be less than three years, having regard to the antecedents of the accused.
(2)
(3) ...
(d)
3. A perusal of the above provisions shows that in first step the Federal Government is to issue a notification under subsection (3.) of section 1 enforcing the Act in a province on a specific date. This step has been taken and the Federal Government by Notification No,108 (KE) 2001 dated 15th June, 2001 enforced the Act in Province of Sindh with effect from 20-6-2001. The notification is reproduced hereunder: "MINISTRY OF INTERIOR AND NARCOTICS CONTROL (Interior Division)
NOTIFICATION Islamabad, the 15th June, 2001 S.R.O. 108(KE)2001. In exercise of the powers conferred by subsection (3) of section 1 of the Surrender of Illicit Arms Act, 1991 (XXI of 1991) the Federal Government on the recommendation of the respective Provincial Government, is pleased to appoint the dates specified in column (3) of the table below to be the dates on which the said Act shall come into force in the areas specified in column (2) thereof. TABLE 270 THE GAZETTE OF PAKISTAN' EXTRA.
S/NO. Area Dates on which Act XXI 1991 shall come into force
2. .....................
3. .....................
4. The whole of the Province Of Sindh.20th June, 2001.
5. .................
AMIR KHAN WAZIR Section Officer (Arms)."
4. Next step for the Federal Government is to issue Notification under section 4 of the Act disclosing the specific time and the authority on which and before whom the illicit arms are to be surrendered. And in the last step under section 6 wide publicity of the ingredients of the notification under section 4 is to be made by the Federal Government. After the above is done only then provision of section 7(c) of the Act can be invoked.'
5. During the hearing of these applications it was enquired from the Additional Advocate-General as to whether a Notification under section 4 has been issued. He took time to seek instructions. This was necessitated as the Police started taking actions with effect from 20th June, 2001, a date which pertains to the notification under section 1(3) whereby the Act was made enforceable in the Province of Sindh.
6. Learned counsel appearing for the State informed the Court that they had by letter dated 14th of September, 2001 to the Secretary Law, Province of Sindh ascertained about the notification under section 4 and he orally informed them that no such Notification is .Available with his department.
On enquiry, my learned brother Fakir Muhammad Khokhar, J. The Secretary of Law, Ministry of Justice, Government of Pakistan, Islamabad also confirmed the non-issuance of notification under section 4 of the Act.
7. The sum up is that in the absence of a Notification under section 4 and wide publicity as envisaged in section 6 no case under section 7 of the Act can be registered against the applicants.
It appears that the Government functionaries treated the Notification No,108(KE) 2001 dated 15th June, issued under section 1(3) of the Act as a Notification under section 4 and registered cases under section 7(c) with effect from 20th June, 2001. The maximum sentence under section 7(c) is 14 years therefore, the challans were submitted by the police in the Court of Sessions.
8. The Flits in these cases, under section 7(c) of Act are therefore, without force of law. The F.I.Rs, however, be treated as registered under the provisions of Arms Ordinance, 1965 and to be tried by the Courts having jurisdiction therefor. The Sessions Courts have no jurisdiction to try these matters therefore, orders passed by them on the bail applications are set aside. Applicants may apply for bail by tiling fresh applications before the respective trial Courts for seeking relief. The R & Ps of these cases pending with the Courts of Sessions are to be sent to the Courts of respective jurisdiction. The case of Hussain Ahmed v. The State (1992 M LD 1618) is referred.