P L D 1969 Karachi 151 (PLP)

FARUQUI, J.‑By this petition under Article 98 of the Constitution of Pakistan, the petitioner Zulfikar Ali Bhutto challenges the validity of the notification dated 19‑7‑67 issued by the Government of West Pakistan rescinding the exemption granted to the petitioner by two earlier notifications in respect of certain arms held by him. A further declaration is sought against the validity of the letter of the District Magistrate, Larkana, dated 24‑7‑67 directing the petitioner to deposit all the arms with the Superintendent of Police, Larkana. A consequential direction is sought to restrain the respondent from requiring the petitioner to deposit the arms covered by the earlier two notifications and, in any event, such arms, as are detailed in paras. 4, 5 and 6 of the petition.

2. The petitioner, who was a Minister of the Central Government from October 1958 till 31st August 1966, is in possession of a number of arms meant for security, hunting and decorative purposes. Many of these arms are claimed to be family heirlooms handed down from generation to generation. On 12‑10‑61, the Government of Pakistan, Ministry of Home Affairs, by notification in exercise of the powers conferred by section 27 of the Arms Act, 1878, exempted the petitioner from the operation of the prohibition and directions contained in sections 13 to 15 of the said Act in respect of the Schedule contained in the said notification. This Schedule is produced with the petition and is marked `A' and contains the description and number of the arms which are covered by the exemption. At the time when this exemption was granted the petitioner was a Minister of the Central Government holding the portfolio of Fuel, Power & Natural Resources.

3. It is the case of the petitioner that in the year 1964 on the death of his uncle and father‑in‑law he inherited more arms and in respect of which he sought and obtained a further ex emption by a similar notification dated 20th August 1964 but which was issued by order of the Governor of West Pakistan in view of the transfer of the subject to the Provincial list under the present Constitution which came into force in the year 1962. The total number of these arms included 19 swords which are stated to be for decoration purposes, two miniature cannons which are alleged to be obsolete and an air pistol. The petitioner ceased to be a Minister of the Central Government as from 31st August 1966 and it was on 6th May 1967 that the A. D. M., Larkana addressed to him a letter stating that as Foreign Minister he had been "exempted from firearm licences as specified in the various Schedules of Arms Act, 1878". He was then required to furnish the following details as early as possible. "(1) Number and description of arms retained by you by virtue of the exemption from the Arms Act, 1878. (2) The number and description of arms retained by you under valid licences obtained from the various districts. (3) Particulars of persons to whom these weapons might have been issued by you (as retainers, etc). (4) Where are the weapons, not supplied as in para. (3) above, being kept and to what use are they being put. (5) The number of weapons actually required by you for protection or sports." The petitioner replied on 12th May 1967 stating that he was exempted from the requirement of obtaining licences not only by virtue of his being a Foreign Minister and recipient of Hilal‑e‑Pakistan but also quite independently under the two Government notifications of 12th October 1961, and 20th August 1964. It was added that it was in view of the exemption by virtue of these notifications that he had not taken up the question referred to by the A. D. M. in his letter on relinquishing charge as Foreign Minister in the Government of Pakistan. It was specifically stated that before considering the taking of any further action in this respect he (A. D. M.) should bear in mind that the petitioner had applied for the aforesaid exemption "after obtaining approval of the highest authorities." A copy of this letter was sent by the petitioner to the Home Secretary, Government of Pakistan, to whom he also addressed a D. O. letter on the same day telling him of the traditional sensitivities of the people of Sind on this subject and the law and order situation in Sind, specially in his district and that these factors should be taken into consideration before any further action was taken. It was further added that if the Government still decided to take steps in respect of the notifications, it would only mean applying for separate licences for the arms covered by the two notifications. The petitioner did not hear anything more about it until on 19th July 1967, when the impugned notification was issued under the order of the Governor of West Pakistan rescinding the two notifications of exemption issued in the years 1961 and 1964. This may conveniently be reproduced: "No. H. P. II/X‑A‑57/64.‑In exercise of the powers conferred by section 20 of the West Pakistan General Clauses Act, 1956 (W. P. Act VI of 1956), the Governor of West. Pakistan is pleased to rescind the Government of Pakistan, Ministry of Home Affairs' Notification No. 5/22/61‑Police‑I (2),_ dated the 12th October 1961, and this Department Notification of even number, dated 20th August 1964, granting exemption. to Mr. Zulfikar Ali Bhutto, H. Pk., former Minister for Foreign Affairs, Government of Pakistan, in respect of the firearms mentioned therein." A copy of this notification was sent also to the petitioner amongst others and he was required to immediately deposit the fire‑arms, in respect of which the exemption was granted to him, with the Superintendent of Police, Larkana. It was in pursuance of this, notification that the District Magistrate, by his letter dated 24‑7‑67, required the petitioner to deposit the arms, with the Superintendent of Police, Larkana, immediately under intimation to him. When this letter was received at the petitioner's place he was abroad and his wife wrote to the District Magistrate accordingly and asked him to wait till the return of her husband. It was then that the present petition was filed in this Court on 10‑10‑67.

4. This petition came up for admission before a Bench of this Court on 11‑10‑67 who admitted it and by an interim order directed stay of any further action. On 26‑2‑68 the Additional Advocate‑General filed an application praying to vacate the interim order. The reason for this urgency was stated to be that it was not desirable to permit a single ideal to retain in possession such a huge quantity of weapons, that is 72 firearms.

5. The petitioner challenged the validity of Vic notification dated 19‑7‑67 and the action taken by the D. N‑1, in that regard on several grounds stated in the petition, bit; only the following grounds were pressed before us: (1) That the notification is misconceived and has been issued under a misapprehension because the exemptions granted to the petitioner by the aforesaid two notification; were not by virtue of his office as a Central Minister as assumed by the respondent but in his name personally. (2) That the rescinding of the said exemption by means of the impugned notification was in violation of the principles of natural justice as the petitioner had been given no opportunity to show cause. (3) That the rescinding of the said exemptions was arbitrary; unreasonable, without any reason and mala fide. (4) That the two exempting notifications having been duly issued and acted upon, the respondent No. 1 had no power to cancel or rescind it under section 20 of the West Pakistan. General Clauses Act as it had purported to do.

6. On the other hand, the case of the respondent‑Govern ment, as put forward in the written statement and clarified by the learned Additional Advocate‑General at the hearing, was as follows :‑ (1) That the exemption granted to the petitioner was not in his name but by virtue of his office as a Minister of the Central Government. That being so, the petitioner's exemp tion was covered by the general notification of 3rd November 1923, which granted such exemptions to all Central Ministers. For that reason the two notifications of 12‑10‑61 and 20th August 1964 were otiose and conferred no concession to the petitioner in addition to what he already enjoyed as a Minister of the Central Government. In the alternative, it was stated that even if it was held that the two notifications remained in operation even after February 1967, the respondent Government was fully competent in law to rescind the same. (2) That having regard to the nature of the exemption granted by the two notifications, no right was conferred on the petitioner which could not have been withdrawn without issuing a show‑cause notice. (3) If it was held that a show‑cause notice was necessary on the principle of natural justice, the requirements of that principle had been fully met in this case. (4) That the respondent‑Government was competent by virtue of section 20 of the West Pakistan General Clauses Act to rescind the two notifications.

7. With regard to the first point raised on behalf of the petitioner the question to be determined first is whether the two exemptions of 1961 and 1964 granted in favour of the petitioner were in virtue of his office as Central Minister or in his name. If it was in virtue of his office then, of course, no further question arises and the petition must be dismissed, because under the general notification of 1923, by which the exemption was granted to Central Ministers amongst others, that was to come to an end automatically six months after the Minister ceased to be in office. Now, before we proceed to examine the two notifica tions of exemptions it may be convenient to refer to the provisions of the Arms Act XI of 1878 which was repealed and replaced by the West Pakistan Arms Ordinance (Ordinance XX of 1965) in view of the transfer of the subject to the Provincial list on the coming into force of the Constitution of 1962. The first exemption of 1961 was granted under the old Act. The provisions, however, are in part materia with some difference, to which we will refer presently. Section 13 provides that no person shall go armed with any arm except under a licence and to the extent and in the manner permitted thereby. Section 14 prohibits the possession of any cannon or firearm or any ammunition, except under a licence. The next relevant section is section 27, which granted power to the Central Government to exempt any person by name or in virtue of his office or any class of person, etc. from the operation of any prohibition or direction contained in the Act. It may be useful to reproduce this section and its two clauses :‑ "

27. Power to exempt.‑The Central Government may from time to time, by notification published in the official Gazette,‑ (a) exempt any person by name or in virtue of his office, or any class of persons, or exclude any description of arms or ammunition, or withdraw any part of Pakistan, or of the Province as the case may be from the operation of any prohibition or direction contained in this Act ; and (b) cancel any such notification, and again subject the persons or things or the part of Pakistan or Province comprised therein to the operation of such prohibition or direction." This section 27 was reproduced in the Provincial Ordinance of 1965 with this difference that clause (b) was omitted. It may be noticed that clause (a) of section 27 empowered the Govern ment to exempt any person by name or in virtue of his office. Let us now look at the two notifications. The first notification has been produced with the petition and is marked as Annexure `A'. This is dated 20th October 1961 and reads "S. R. O. 975 (K)/61.‑In exercise of the powers conferred by section 27 of the Arms Act, 1878 (XI of 1878), the Central Government is pleased to exempt Mr. Zulfikar Ali Bhutto, Minister for Fuel, Power and Natural Resources, Government of Pakistan, from the operation of the prohibitions and direc tions contained in sections 13 to 15 of the said Act in respect of the arms specified in the Schedule below." In the Schedule are given the full particulars of each and every arms which are mentioned therein. Up to the serial No. 31 are guns, rifles and pistols. At serial No. 32 are mentioned 19 swords for decoration and at serial No. 33, two miniature cannons are mentioned. The second notification of exemption is dated 20th August 1961 and is marked `B' to the petition. This may also be reproduced "No. HP. 11/X‑A‑57/64.‑ In exercise of the powers conferred by section 27 of the Arms Act, 1878 (X1 of lb73), as adopted by the Central Adaptation of Laws Order, 1';64 (President's Order No. 1 of 1964), the Governor of West Pakistan is pleased to exempt Mr. Zulfikar Ali Bhutto, H. Pig., Minister for Foreign Affairs, Government of Pakistan, from the operation of the prohibitions and directions contained in sections 13 to 15 of the said Act in respect of the arms speciae3 in the Schedule below, in addition to the arms in respect of which he already enjoys exemptions under the Government of Pakistan, Ministry of Home Affairs, Notification No. 5‑22‑61 Police‑I (2), dated the 12th October 1961." . In the Schedule to this notification as well are given the particu lars of the weapons in respect of which the exemption was granted. These are eighteen in number though item 18 consists of three old muskets for decoration purposes. It is important to note that in both these notifications the petitioner is mentioned by name though his description as the Minister of a certain portfolio is also stated and in the Schedule the particulars of each and every arm is fully stated. The question arises that if the exemption was intended to be in virtue of his office, where was the need for these notifications. It is conceded by the Additional Advocate‑General and, in fact, it is his case that all these weapons, which are mentioned in the two Schedules, could have been possessed and used by the petitioner as a Central Minister under the exemption of the general notification of 3rd November 1923. But surely the Central Government and the Provincial Government were aware of the existence of this general notification. Why then did they take the trouble of not only issuing these two notifications but also mentioning therein the particulars of each and every arm possessed by the petitioner. It is conceded by the A. A.‑G. that these were issued at the request of the petitioner and it is the latter's case that he had obtained this exemption with the approval of the highest authority. That has not been denied. If the object of the exempting authority was to grant to the petitioner an exemption which would give him nothing more than what he already possessed in virtue of his office, he could have been so informed, assuming he was not aware of it. It was not disputed that the petitioner was the only Minister in whose favour such exemptions by name were granted. But why stop at one Minister? If there was some confusion with regard to the true effect of the general notification of 1923 why not issue similar notification in case of every other Minister. Why mention each and every arm with full particulars in the Schedule of the two notifications? That is not how a general exemption is granted. The notification of 1923 itself gives a Schedule, which merely makes an exception in respect of a few weapons, the effect being that the exemption was in respect of all other weapons, if a superfluous notification was issued by the Central Government in 1961 why was it necessary for the Provincial Government to repeat that mistake in 1964 when the subject had passed on to the Provincial list and the petitioner had inherited some more arms on the death of his father‑in‑law. We have not been given any satisfactory answer to these questions, nor have we been able to find any. We are, therefore, not prepared to hold that the two aforesaid notifications were issued unnecessarily and that it did not grant exemption to the petitioner in his own name but in virtue of his office. The mention in the notification of the petitioner being a Minister was merely to give his description 'and that description varied with his port folio as would be seen n the two notifications. Our finding, therefore, is that both these notifications were deliberately issued and they were effective and would remain so unduly cancelled. Under them the exemption to the petitioner was in his name.

8. Let us now come to the impugned notification of 19th July 1967 whereby the Governor of West Pakistan or the Provincial Government purported to rescind the two aforesaid notifications. This may again be reproduced :‑ "No. H. P. II/X‑A‑57/64.‑In exercise of the powers conferred by section 20 of the West Pakistan General Clauses Act, 1956 (W. P. Act VI of 1956), the Governor of West Pakistan is pleased to rescind the Government of Pakistan, Ministry of Home Affairs' Notification No. 5/22/61‑Police‑I (2), dated the 12th October 1961, and this Department Notification of even number, dated the 20th August 1964, granting exemption to Mr. Zulfikar. Ali Bhutto, H. Pk., former Minister for Foreign Affairs, Government of Pakistan, in respect of the firearms mentioned therein. By Order of the Governor of West Pakistan." Copies of these notifications were sent to the petitioner, the Secretary to the Government of Pakistan, Ministry of Home Affairs, the Chief Secretary to Government of East Pakistan, all Commissioners of Divisions in West Pakistan, all Deputy Commissioners/Political Agents in West Pakistan and the Inspector‑General of Police, West Pakistan. The petitioner was directed with a note that he should immediately deposit the firearm, in respect of which the exemption was granted to him, with the Superintendent of Police, Larkana. It is significant to note that the notification, while referring to the grant of exemption which was sought to be cancelled, refers to the petitioner as the former Minister of Foreign Affairs. This is consistent with the case of the respondent‑Government, which was specifically taken in the written statement and before us, that inasmuch as the two exemptions were granted to the petitioner in virtue of his office as a Central Minister, the exemption came to an end six months after the time when he ceased to hold that office. Considerable argument was advanced before us by the learned Additional Advocate‑General that the exemption granted by the two notifications was not in the name of the petitioner but only in virtue of his office. When this was how the Governor of the Provincial Government understood the matter and it was under this impression that the cancelling notification was issued, it must be held that it could not achieve anything more than what it was intended to do, namely the termination of the exemption on the petitioner ceasing to be in office. But in view of our finding that the exemption was granted to the petitioner in his name, can the Government turn round and say that if that be the view of the Court we should be deemed to have rescinded the exemption which was granted to the petitioner in his name ? We are clearly of the view that this alternative stand cannot be taken by the Government. If the authority, which rescinded the exemption, intended to do so with knowledge of the fact that it was granted to the petitioner in his name and not in virtue of his office he would have had to apply his mind to that question and consider the reasons for taking such an action. But, in this case, it is the Government's own case that it understood that the exemption was only in virtue of the petitioner's office. That being so, how can it then be urged that it was cancelled in full realisation of the fact that what was being rescinded was an exemption granted in name. The conclusion, therefore, is inescapable that the order and the notification which was passed in pursuance of that order were .clearly under a misapprehension and mistake and must be declared to be of no legal effect. We order accordingly. This really disposes of the petition, but considering that a great deal & argument was addressed before us on the question, whether the rescinding of the exemption was bad for want of a show cause notice, we shall now proceed to deal with that question.

9. We must straightaway observe that the question remained more of academic interest for the purposes of this case because of the categorical statement made by the Additional Advocate‑General that the petitioner had done nothing which had led to the cancellation of the exemption. This stand is consistent with the stand taken by the Government that the exemption had come to an end on the petitioner ceasing to be the Central Minister except for the further period of six months as provided in the notification of 1923. But we have already held that this was not the correct position. It is, therefore, easy to understand that even if it was found that it was necessary to give notice to the petitioner to show cause against the proposed cancellation of the exemption, there would be no material upon which such a notice could be given and there would be nothing for the petitioner to show cause against. But if action was to be taken upon information having been received by the Govern ment with regard to any act or thing done by the petitioner or about the happening of certain events, which necessitated the cancellation of the exemption, then we have no doubt that the petitioner would have to be given notice of those facts or circum stances to ‑show cause against it notwithstanding the absence of any such provision in the Act or the Ordinance. It was, however, contended by the learned Additional Advocate‑General that the application of this principle was only permissible in a judicial or a quasi‑judicial proceeding. With great industry he took out passages from various judgments of the Supreme Court and also the High Court to support his contention. We think that it is now too late in the day to try to limit the applica tion of the principle only to judicial or quasi judicial proceedings. The limitations of the writ of certiorari can no longer be appli cable in view of the express terms of Article 98 of the Constitu tion. Day after day we are entertaining challenge to various administrative and executive actions of the Government and its functionaries in matters affecting the person, property or other rights of a citizen. When any such right has been violated or injured by such action it has been held more than once that the person so affected will have to be given notice to show cause, may not necessarily to be followed by a personal bearing, unless there is something express or implied in the relevant provision against such a requirement. The law on this subject has been succinctly stated after an elaborate examination of precedents by Hamoodur Rahman, J. in the case of University of Dacca v. Zaker Ahmad (P L D 1965 S C 90). That was a case in which a ,student of the University of Dacca was expelled by the Syndicate approving the action of the Board of Discipline and this action was taken by issuing a notification. There was no provision in the laws which govern the University in such matters for giving notice for showing cause to the person against whom disciplinary action was proposed to be taken. The conclusion of his Lordship is contained at page 103 of the report and we may with respect reproduce it "From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post fact investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural. justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accord ance with such principles of natural justice as may be applic able in the facts and circumstances of a given case." The learned Additional Advocate‑General, however, submitted that in the latest judgment of the Supreme Court in the case of Abdul Baqi Baluch v. Govt. of Pakistan (P L D 1968 S C 313) the view that this principle applied only in cases where authority was required to act judicially or quasi‑judicially. He picked out a passage from the judgment of Hamooaur Rahman, J. which appears at page 330, of the report: "Another point that remains to be dealt with is as to whether a show‑cause notice ought to have been given to the appellant before making the impugned order. For this purpose reliance is placed upon the decision of this Court in the case of Messrs Faridsons Limited v. The Government of Pakistan.. But it has to be pointed out that the principles laid down in that case are not attracted in the case of preventive detention, for, such orders are made purely on considerations of policy or expediency. There can be no question of the detaining authority being under any obligation to act judicially or even quasi‑judicially. It is only where there is a duty to decide judicially or quasi‑judicially that the principles of natural justice referred to in Faridsons' case are attracted." Reliance was placed, particularly on the last sentence in the above quotation. This was a case in which the validity of the detention of the petitioner under the Defence of Pakistan Rules was being challenged and it was in this context that his Lordship, while distinguishing it from Faridsons' case, observed that those principles were not attracted in the case of a preventive detention for, such orders are made purely on consideration of policy or expediency. The last sentence, therefore, must be read in this context. For the reasons given we repel the con tention of the learned A. A.‑G. The further contention that the requirement of the principle of natural justice has been fulfilled in this case is also without any substance and in fact was not seriously pressed.

10. The question which next arises is whether the Govern ment could rescind the exemption without any cause or reason and at their sweet will. It was the claim of the A. A.‑G. that it could be so done, for there was no right in the petitioner which had been violated. Let us refer to the Arms Ordinance to examine this claim. Sections 8 and 9 of this Ordinance contain the prohibition and are in pari materia with sections 13 and 14 of the Arms Act, 1878, to which reference has already been made. Now, but for this prohibition any person could possess and retain such arms. It would be his property and no body could prevent him from keeping it or using it without, of course, endangering someone else's person or property. But the right to hold such property has been controlled by law. Ordinarily, a person has to apply for a ‑licence in this respect. When such a licence is granted, it is not disputed that it could not be cancelled arbitrarily. Indeed, section 12 of the Ordin ance provides an elaborate procedure for it. The authority cancelling or suspending such a licence has to record his reasons in writing for his action and this he could do only after giving the holder of the licence an opportunity of showing cause against the proposed cancellation or suspension. It is only when the holder of such licence is convicted of an offence under the, Ordinance that the aforesaid procedure does not become necessary. It is true that such a procedure as contained in section 12 is not provided for the cancellation of the exemption but for that matter there is no express power given to cancel an exemption, such as was contained in section 27(b) of the old Arms Act. It was for this reason that resort had to be taken to the General Clauses Act for the cancellation of the two notifications of exemption. That, however, is not very important. What is important is whether a person, who was permitted to hold a certain number of arms in accordance with the exemption, could be deprived of it without any reason whatsoever and without his being told why such an action was proposed to be taken. Is he to be treated less favourably than a person in whose favour an ordinary licence is issued ? It is true, nobody could com plain if an exemption is not granted to him, but once it is granted he becomes entitled to a right, i.e. the right to possess and use certain arms without having to apply and obtain a licence for it. Many similar other situations can be contemplated where a person, who otherwise had no right, obtains a right, whatever be its limited character, when a licence or permit is granted to him. For instance, if an import licence is not granted to a person, it would be difficult for him to seek redress against it in a Court of law on the ground that his right had been violated. But once a licence is granted the cancellation of that licence without good reason would make him an aggrieved person in respect of the right to hold that licence. In the same way, when a person who has been granted exemption is to be deprived of it, there has to be some good reason for it otherwise the action of the authority will be clearly whimsical, capricious and arbitrary. It was, however, urged by the A. A.‑G. that the validity of this action could not be challenged because it had been taken by means of a delegated legislation, namely the issue of the rescinding notification in exercise of power under section 20 of the West Pakistan General Clauses Act. It is enough to say that such a notification does not exist in tire air. When such an action is to be taken there has to be a decision and order of the relevant authority; upon the basis of which such a notification is issued. The challenge would, therefore, be directed to the order on the basis of which the notification may have been issued. In this case, not only the two exemptions granted by the earlier notifications were rescinded, but in that very notification there was a direction to the petitioner that he was to deposit immediately all the arms, in respect of which the exemption had been granted, with the Superintendent of Police, Larkana. We have not been shown any power in the Ordinance, whereby such an order for deposit could be made which would amount for all purposes to con fiscation of the arms. Such a confiscation, as we have pointed out, is only possible where a person has been convicted of an offence under the Arms Act. The petitioner in this case was not even given an option to deposit the arms with an authorised dealer which was permissible. He was not allowed to retain even those arms which he would, in any case, be entitled to by virtue of his having received Hilal‑e‑Pakistan and in respect of which there were subsisting licences. Our conclusion, therefore, is that the action taken was not valid and the Government could not withdraw the exemption without any good cause or reason.

11. In reaching, our conclusion on tine points referred to have IV, have proceeded upon the assumption that the Govern ment would have power of cancelling or rescinding an exemption granted under section 27, provided the conditions, as we have indicated, are fulfilled. We do not, therefore, for the purposes of this case find it necessary to decide the question raised on behalf of the petitioner that there was no power in the Government to cancel or rescind an exemption granted earlier by recourse to section 20 of the West Pakistan General Clauses Act.

12. For the reasons given, we allow this Petition and declare that the impugned notification dated 19‑7‑67 is without lawful authority and is of no legal effect. 7 his applies also to the letter of the respondent No. 2 dated 24‑7‑67 demanding the deposit of Arms. The costs of the petition shall be borne by the first respondent. A. E. Petition allowed.