IN THE HIGH COURT OF SINDH, KARACHI
Date of hearing 20.08.2014
Mr.Muhammad Naeem Memon, Advocate for the Applicant.
Mr.Saleem Akhtar, Additional Prosecutor General.
Muhammad Ali Mazhar, J. The applicant has applied for post arrest bail in Crime No.56/2014 lodged under Section 23 (1) (a) of Sindh Arms Act at Police Station, Liaquatabad, Karachi.
2. The ASI Akram Butt on behalf of State lodged the Crime No.55/2014 under Section 392, 324, 353 and 34 P.P.C in which he stated that accused Shah Jahan was arrested on 22.3.2014 from Bantwa Nagar, Lyari Expressway, Liaquatabad, Karachi. At the time of his arrest he was carrying 30 bore pistol No.2335 with loaded magazine containing two live bullets and one live bullet was chamber loaded. In presence of private witness Faisal son of Muhammad Afsar and PC Azhar Hussain Shah, the ASI Akram Butt demanded license of recovered weapon and ammunition but accused failed to produce the same and on return to police station FIR No. 56/2014 was lodged under Section 23(1) (a) of Sindh Arms Act 2013.
3. The learned counsel for the applicant argued that the applicant is innocent and he has been falsely implicated in this case. The accused was arrested empty handed from this house. He further argued that nothing has been recovered from the possession of applicant and the alleged recovery has been foisted upon the applicant. The alleged weapon was sent to the Forensic Division for examination but the report shows that seven 30 bore crime empties were not fired from the above mentioned pistol as major points i.e. striker pin marks, breech face marks and chamber marks are dissimilar therefore, the falsity of the FIR and implication of the alleged weapon cannot be ruled out. He further argued that at the best Section 24 is applicable which has lesser punishment. He further argued that pistol is included in the definition of “Arms” under the Act of 2013 which is punishable under Section 24 of the Act. Section 23 (1) (a) provides punishment for firearms and ammunition only and according to the learned counsel, pistol is not included in the definition of firearms. In support of his contention, he referred to the following case law:-
1. PLD 2014 Karachi 282 (Ayaz Ali v. State). Section 2(d) “Firearms” used in the meaning of “firearms” provided in Sindh Arms Act 2013, was not be confused with a “pistol” because “riot-pistol” (or less lethal launcher) was a type of firearm that was used to fire non-lethal ammunition for purpose of suppressing riots. Sindh Arms Act. Possessing unlicensed arms. “Arms” definition of. “Pistol”. Police allegedly recovered an unlicensed pistol from possession of accused. Unlicensed pistol fell within the definition of “arms” provided in Section (2) (c) of Sindh Arms Act, 2013. Section 24 of Sindh Arms Act, 2013 provides maximum punishment up to 10 years imprisonment.
2. SBLR 2014 626 (Inayat Ali v. State). Sindh Arms Act, 2013, Section 2, 23 (1) (a) & 24. Criminal Procedure Code (V of 1898). Section 497. The instant case falls within the definition of ‘arms’ as provided in section 2 of Sindh Arms Act, 2013; same is governed by section 24 of the Act, which provides maximum punishment up to 10 years. Perusal of Section 23 and 24 stipulates that section 23(1) provides maximum punishment up to 14 years, whereas section 24 provides maximum punishment up to 10 years imprisonment, thus, apparently instant case, wherein recovery is of pistol, which falls within the definition of ‘arms’ as provided in the section 2, which carries maximum sentence of 10 years, as provided in section 24 of the Act. It is settled principle of law that grant of bail in cases covered by non-prohibitory offences is a rule and refusal is an exception, and in peculiar facts and circumstances of the instant case portray that no exceptions exists therein.
4. The learned Additional P.G. argued that on 22.3.2014, the complainant along with other police officials was patrolling on police mobile and when they reached to the Lyari Expressway one Muhammad Faisal complained them that he was going on his motorcycle to Liaquatabad from Hassan Square and when he reached to Lyari Expressway, two persons snatched Rs.1500/- from him. He also pointed out two persons who were running from the place of incident. The Police party tried to arrest them but they started firing and police also made firing in their self defence due to which one dacoit sustained injuries in his legs who is applicant in this bail application, while his partner Naveed made good his escape. He further argued that the applicant was arrested on the spot. It was further contended that the counsel for the applicant failed to point out any enmity or mala fide intention on the part of police. He further pointed out the memo of arrest in which one private witnesses is Muhammad Faisal, who was robbed by the applicant. Learned A.P.G. also pointed out the report of the Firearms Examination Unit, Forensic Division Karachi to show that one 30 bore crime empty was fired from the pistol No.2335 which was recovered from the applicant. So far as the claim of the counsel for the applicant that other empties were not matched with the crime weapon of the applicant, the learned APG argued that at the place of incident the accomplice of the applicant was also present and he was firing from his weapon who made his escape good. It is not the case of the prosecution that all empties sent for examination were fired from the weapon of the applicant but in the report the examiner has distinguished all empties with clear report that one of the empties was fired from the weapon of the applicant which is enough to make out a case under the Sindh Arms Act as it is an admitted fact that the applicant failed to show any license. He vehemently opposed the contention of the learned counsel for the applicant that the weapon was foisted by the police which is common allegation or a common defence of all accused persons in the like cases. It was further contended that the definition of firearms is very vast and extended which includes the pistol also. It is not the intention of the lawmaker to let free a person only for the reasons that the pistol is included in the definition of arms and not in the firearms. He further argued that if this argument of learned counsel is accepted then no person shall be punished under Section 23 if arrested with an unlicensed pistol/weapon.
5. Heard the arguments. Let me first engage in the most crucial point which relates to the definition of “Ammunition” “Arms” and “Firearms” provided under the Sindh Arms Act. The learned counsel for the applicant made reliance on two reported orders passed by the learned judges of this court and developed his argument that since pistol is provided within the definition of arms and not in the definition of firearms, hence Section 23 does not apply. It was contended that punishment of possessing arms or ammunition licensed or unlicensed with the aim to use them for any unlawful purpose is punishable to ten years so the case of applicant comes within the premise of Section 24 of the Act and not under Section 23 and for granting the bail, the lesser punishment should be considered. In order to thrash out the present controversy to its logical end, it would be expedient and advantageous to reproduce the following definitions provided under Section 2 of the Sindh Arms Act 2013:-
“(b) ammunition means ammunition for any firearm, and includes-
(i) rockets, bombs, gun powder, shells, detonators, cartridges, grenades;
(ii) articles designed for torpedo service and submarine mining;
(iii) other articles containing, or designed or adapted to contain, explosive, fulminating or fissionable material or noxious liquid, gas etc. whether capable of use with firearms or not;
(iv) charges for firearms and accessories for such charges;
(v) fuses and friction tubes; and
(vi) parts and machinery for manufacturing ammunition;
(c) arms means articles, designed as weapons of offence or defence and includes rifles, pistols, revolvers, grenades, swords, bayonets, and other lethal weapon. It shall also include machinery (and its parts) for manufacturing arms, but excludes articles designed solely for domestic or agricultural purposes and weapons incapable of being used otherwise that as toys or of being converted into serviceable weapon;
(d) firearms means weapons designed to discharge a projectile or projectiles of any kind by the action of gun powder or any explosive or other forms of energy and includes-
(i) artillery hand-grenades, riot-pistols or weapons of any kind designed for the discharge of any noxious liquid, gas etc;
(ii) accessories for any such firearm, intended to diminish the noise or flash caused by the firing thereof;
(iii) parts of, and machinery for manufacturing fire-arms; and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery;
6. In the same context, I would also like to reproduce Section 3, 23, (relevant portion) 24 and 25 of the Sindh Arms Act 2013 which will be relatively useful for ready reference:-
“3. (1) No person shall acquire, possess, or carry any firearm and ammunition unless a licence is issued to him in accordance with the provisions of this Act and the rules:
Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority of the holder of the licence, for repair or for renewal of the licence or for use by such holder.
(2) The number of firearms to be allowed to any person, at any time, shall be in accordance with the rules so prescribed.
23 (1) Whoever-
(a) acquires, possesses, carries or control any firearm or ammunition in infringement of section 3, shall be punishable with imprisonment for a term which may extend to fourteen years and with fine;
24. Whoever possesses arms or ammunition licensed or unlicensed with the aim to use them for any unlawful purpose or to facilitate any other person to use them for any unlawful purpose shall, whether such unlawful purpose has been materialized or not, the license holder, the user and the person who has no license, be punishable with imprisonment for a term which may extend to ten years and with fine.
25. Whoever uses or attempts to use firearm licensed or unlicensed or an imitation firearm with the purpose to commit any crime, any unlawful act or to resist or prevent his lawfull arrest or detention or of any other person shall be punishable with imprisonment for a term which may extend to ten years and with fine.”
7. The Sindh Arms Act 2013 according to its preamble has been made and disseminated to reform the legislation pertaining to arms and ammunition in the province of Sindh with the aims and objects to curb the proliferation of arms and ammunition, whether licensed or not, which disrupts the social harmony and vitiates the law and order affairs and directly contributes to the barbarity of violence. It is quite well known to all that menace of terrorism, fear and threat to life, exacerbated law and order situation is rampant and proliferating in the province. The ratio of target killing, cell phones snatching and other street crimes is increasing day by day and law enforcement agencies are endeavoring and striving to control and handle the situation. To cater the need of time law has been enacted with different punishments for different offenses provided in the different sections of the Act. 2013. At times certain laws are considered draconian but sometimes laws are made as a need of time to safeguard larger public interest and for showing and exposing deterrence so that increasing rate of crimes menacing evil in the society may be prevented which is found more dangerous than the cancerous disease. By saying so I do not mean to hold that under no circumstances bail should be allowed under this law rather than I mean to hold that while granting bail in this law each case is required to be considered strictly on its own peculiar and distinctive facts and circumstances which is otherwise a general principle of administration of criminal justice.
8. The definition of ammunition, arms and firearms are separately provided under the Act of 2013. The purpose of highlighting the definition of ammunition, arms and firearms vis-à-vis Section 3, 23 (1) (a), 24 and 25 in this order is to distinguish and singularize the different conditions, parameters and bounds in the aforesaid sections. If we first look into Section 23 (1) (a), it is an offence for those who acquires or possesses or carries or control any firearm or ammunition in infringement of Section 3. The punishment of this offence may extend to 14 years with fine. The said offence is directly linked with the infringement of Section 3 which provides that no person shall acquire, possess or carry any firearm and ammunition unless a license is issued to him in accordance with the provisions of the Act and the rules. The definition of firearm provided under the definition clause of the Act has also very extended scope which means that any weapon designed to discharge a projectile or projectiles of any kind by the action of gunpowder or any explosive or other energy and also includes various other weapons provided in the definition itself from clause (i) to (iv) and ammunition means ammunition and any firearms which includes other articles and weapons provided in clause (i) to (vi) in the definition clause. While the definition of arms means articles, designed as weapons of offence or defence and includes rifles, pistols, revolvers, grenades, swords, bayonets and other lethal weapon, including machinery (and its parts) for manufacturing arms. The definition of Arms provided under Pakistan Arms Ordinance, 1965 is also reproduced as under which includes:-
(ii) firearms of all types, such as light and heavy automatic and semi-automatic weapons, rifles, carbines, muskets, shot guns (whether single or double barreled), revolvers, pistols and appliances the object of which is the silencing of firearms;
(iii) air pistols, bayonets, swords, sword-sticks, daggers, knives with blades of four inches or more (but not kitchen knives or knives used in good faith for the carrying on of a profession) and flick knives irrespective of the size of the blade.
(iv) knuckle-dusters, spears, spear-heads, bows and arrows and parts of arms;
9. Though the definition of firearms is provided under the Act of 2013 itself, but in order to thrash out the definition of firearms in different foreign jurisdictions, I also consulted Black’s Law Dictionary, Forensic Science in Criminal Investigation & Trials” Fourth Edition By B.R. Sharma and Archbold 2014. Archbold Criminal Pleading, Evidence and Practice (usually referred to as simply Archbold) which is a leading practitioners' text for criminal lawyers in England & Wales and several other common law jurisdictions around the world. The relevant excerpts are reproduced as under :-
a. Black’s Law Dictionary. (Sixth Edition). Firearm. An instrument used in the propulsion of sot, shell or bullets by the action of gunpowder exploded within it…. This word comprises all sorts of guns, fowling-pieces, blunderbusses, pistols, etc. In addition, grenade shells, fuses, and powder may be considered “firearm” even though disassembled. U.S.v. Shafer, C.A.III., 445 F.2d 579, 583. The term “firearm” means any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon. 18 U.S.C.A.
b. Forensic Science in Criminal Investigation & Trials” Fourth Edition by B.R. Sharma. A firearm is a device to hurl a projectile or projectiles. The force is supplied by the creation and expansion of gases usually from the burning of powder charge. In air rifles and pistols the motive force is given to projectiles by the expansion of compressed air. According to Indian Arms Act, a firearm means arm of any description, designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy and includes Artillery, hand grenades, riot pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things. Accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof. Parts of and machinery for manufacturing firearms and cartridges, platforms and appliances for mounting, transporting and servicing artillery. A firearm has a barrel, an action and a stock. The barrel of firearm provides space for the expansion of gases and a housing (chamber) for the cartridge in most of the firearms. The chamber is on one end of the barrel. The bore and the chamber are connected in many firearms through a tapering surface called ‘lead’. The action consists of the mechanism for loading, firing, extraction and ejection of the cartridges, the magazine and the safety devices, if any. The arrangements for the location of the devices vary in different firearms. The stock of a firearm holds the other parts in position and provides support for firing purposes. In automatic and semi-automatic pistols, the stock also carries the magazine.
c. According to Section 57 of the Firearms Act 1968. (ARCHBOLD 2014, Page. 2293), the expression “firearm” means a lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged and includes any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and any component part of such a lethal or prohibited weapon; and any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon while the expression “ammunition” means ammunition for any firearm and includes grenades, bombs and other like missiles, whether capable of use with a firearm or not, and also includes prohibited ammunition.
10. The definition of firearms in the 2013 Act means the weapons designed to discharge a projectile or projectiles of any kind by action of gunpowder, therefore, It is also necessary to look into the actual meaning of projectile. In this regard, let me also reproduce the meaning of projectile mentioned in Chambers 21ST Century Dictionary and Firearms in Criminal Investigation & Trials, Fourth Edition, By B.R. Sharma:
i. Firearms in Criminal Investigation & Trials, Fourth Edition, by B.R. Sharma. Projectiles are pellets, buck shots, balls, bullets, etc., intended to cause injuries. They are hurled out by the gases produced by the propellants on discharge of a firearm. They vary in constructional materials, shapes and sizes and in their ballistics. The projectiles used in firearms have undergone the usual evolution. The first projectile for the firearm was probably a stone of convenient size…. . Lead, almost the original material used for the projectiles was found indispensable, though for high velocity projectiles it was covered with a harder metal jacket. The most suitable material, however, for the construction of projectiles continues to be lead. It has a high specific gravity…...
ii. “Projectile”. (Chambers 21st Century Dictionary. (Revised Edition). “an object designed to be projected by an external force, e.g. a guided missile, bullet, etc. capable of being, or designed to be, hurled.
11. Now it is clear that projectile is an object designed to be projected by an extra-ordinary force for example guided missile, bullet etc. and the projectile means pellets, buck shots, balls, bullets, etc., intended to cause injuries, which are hurled out by gases produced by the propellants on discharge of a firearm. With all humility and self-effacement, I am unable to subscribe the view taken in both the case law cited by the learned counsel for the applicant. Even if the ratio of both the cited orders is taken as persuasive value then in my view no case will be made out under Section 23 (1) (a) of the Act in the case of recovery of pistol which will in fact make this section redundant and or superfluous and nobody will be punished if he possesses any pistol without license. If any such inference is drawn it will lead to an absurd and irrational interpretation of law. While considering rigors and effect of Section 23 (1) (a) of the Act, there is no rational to peep into the definition of arms but the definition of firearm should be considered separately, which includes any weapon designed to discharge a projectile or projectiles of any kind by the action of gunpowder or any explosive or other firearm of energy and there is no doubt that the pistol is also a firearm, no matter it is also included in the definition of arms with other list of weapons.
12. What is the mark of distinction stuck between Section 23, 24 and 25 of the Act, 2013 in sequence? Section 23(1) (a) makes a person punishable with imprisonment for a terms which may extend to fourteen years and with fine for acquiring, possessing, carrying or control any firearm without a valid license. While Section 24 is applicable on both situations whether a person hold a license or not, but if he uses the weapon for any unlawful purpose, he would be punishable with imprisonment for a terms which may extend to ten years and with fine. Whereas Section 25 is relevant to firearm whether licensed or unlicensed or imitation firearm which is used to commit or attempt to use to commit any crime or any unlawful Act or to resist his lawful arrest or detention, which is also punishable with imprisonment for a term which may extend to ten years and with fine. Let me make more emphasis that Section 23 (1) (a), 24 and 25 all have altogether different premise and foundation but in the case in hand, Section 23 (1) (a) is under discussion. Though for Section 24 and 25, maximum punishment may be extended up to ten years but the wisdom and intention behind this legislation especially to Section 23 (1) (a) seems to have flashed some extra caution and deterrence to discourage the fashion and trend of freely carrying unlicensed weapon and in order to curb and rein in it, the legislature has fixed the punishment of this offence greater than Section 24 and 25, which may extend to 14 years with fine. The law is clear without any shadow of doubt that if a person is arrested with unlicensed weapon and he also uses it for any unlawful purpose or act, he may be also charged under section 24 and 25 conjoin with Section 23 (1) (a) as the case may be. So in my view, while deciding the bail application this distinction needs to be drawn keeping in view the discrete premise of these sections.
13. The Sindh Arms Act, 2013 is a special law in which under Section 13, the offences are triable by court of Sessions and all offences under this Act are non-bailable. I have also come across to some stereotype bail orders in which due to non-compliance of Section 103 Cr.P.C. bails were granted without perceiving, whether Section 103 Cr.P.C. is literally applicable or not?. Despite the fact that Section 34 of the Act of 2013 made it amply clear that the arrest and search under this Act shall be executed in line with the provisions of Cr.P.C. except Section 103 Cr.P.C. however, proviso has been added that any police officer or the person present on the spot can be witness of search and recovery. It is clear from the letter of the law that compliance of Section 103 Cr.P.C. is not mandatory and the police officer can also be a witness of search and recovery including the person present on the spot. The exclusion of rigidities of Section 103 Cr.P.C. from this Act is not novel, but the similar provision is already available under Section 25 of the Control of Narcotics Substances Act, 1997, therefore in my view, the bail under this Act may not be granted solely for the reason that Section 103 Cr.P.C was not complied with which is already excluded. It seems from the legislative intent that the exclusion or non-adherence to Section 103 Cr.P.C was purposely made for the reason that in the present law and order situation, people normally avoid to give evidence due to fear and threat. However, in the history of Pakistan, the province of Sindh took the lead and promulgated Sindh Witness Protection Act 2013 which would ensure complete social and financial help and protection to the witnesses in the criminal cases, however, it has not been implemented up till now but it is under rule making process. One more facet of this law is Section 26 which has been made in order to discourage fake and vexatious arrest, recovery and seizure. Under this section, responsible person of a fake and vexatious arrest may be punished with the imprisonment which may extend to three years with fine so in the case of any vexatious arrest, recovery and seizure, the court must invoke this provision into motion as a remedial measure to alleviate and or ventilate the mental agony and miseries of a victim which would be in addition to a civil right of claiming damages/compensation by any such aggrieved person on account of malicious prosecution.
14. So far as the merits of this case is concerned, it is clear that the applicant was arrested on the spot and he was carrying 30 bore pistol No.2335, with loaded magazine contained two live cartridges and one live bullet chamber loaded, which was recovered in presence of private witness Faisal, who was robbed by the applicant for which separate FIR No.55/2014 was also lodged under Section 392, 324, 353 and 34 PPC. The examination report dated 1.4.2014 do show that one crime empty Exhibit. as C1 was fired from the 30 bore pistol No.2335 which was recovered from the possession of the applicant. Learned counsel for the applicant argued that other empties were not matched with the weapon of the applicant which is a misconceived argument. It is clearly mentioned that the accomplice of the applicant Mohammad Naveed was also firing and in retaliation, police also started firing, due to which the applicant sustained firearm injuries to his legs and he was arrested on the spot while his companion fled away. Despite all this, learned counsel for the applicant argued that the accused was arrested empty handed from his house. The statement under Section 161 Cr.P.C. of private witness (Mohammad Faisal) is also on record, who was ransacked by the applicant and his ally. As per memo of arrest and search, besides Rs.1500/- one wallet in which original CNIC of one Talib Hussain along with Rs.200/- and another brown colour wallet with Rs.300/- and ATM Card of Bank Al-Habib in the name of Ziauddin were also found and recovered from the applicant. At least five statements under Section 161 Cr.P.C. are available in the police file. The police sent for examination not only the weapon but also the three live bullets, cartridges and one of the empties recovered from the place of the incident was matched with the applicant’s weapon. Under Section 23 (1) (a) a person is liable for the punishment for carrying unlicensed weapon whether used or not. So at this stage, there is no necessity to indulge in how many fire shots were made by the applicant particularly under the circumstances when one recovered empty was duly matched. Reasonable grounds exist that other empties may have been fired by the accomplice of the applicant, who was fled away from the scene of the incident. At the same time police had also made firing for their self defence and to arrest the applicant and his ally. Ample material is available on record to connect the applicant with the crime in question. So I am of the tentative view that the applicant is not entitled to the concession of bail at this stage.
15. In the wake of above discussion, this bail application is dismissed. However, the trail court is directed to expedite the trial and pass the judgment on merits within a period of three months.