1989 P Cr (PLP)

SAJJAD ALI SHAH, J.‑‑In this Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan is challenged cancellation of gun licence of petitioner vide order of District Magistrate, Sukkur, dated 20‑7‑1988 and order, dated 6‑11‑1988 of dismissal of appeal by the Commissioner which are both impugned in this petition. Briefly stated, relevant facts giving rise to this petition are that the petitioner claims enmity with police on account of the fact that he had filed Constitutional Petition No. D‑18 of 1988 in the High Court against police officials of P.S. Mirpur Mathelo for refusing to register his F.I.R. That petition was withdrawn on the assurance given to the petitioner that his F.I.R. would be registered. When‑it was not done petitioner filed application against police official, of Police Station Mirpur Mathelo for action under the Contempt of Court Act. Contempt application was not pressed for the reason that F. I. R. of petitioner was registered. It is submitted by the petitioner that police officials became annoyed with him on account of his persistent follow up of remedies in the Court of law against them, hence a case was set up against the petitioner and his brothers under sections 307, 336, 34 P.P.C. in Crime No.51 of 1987 in which nobody was injured. In these circumstances respondent No.6, S. H .0. Police Station Mirpur Mathelo wrote to respondent No.5, S.S.P. for cancellation of gun licence of petitioner and in consequence S.S.P. made such recommendation to respondent No.3, District Magistrate Sukkur who issued show‑cause notice to petitioner and then cancelled his licence vide order ‑ mentioned above. Petitioner preferred appeal before respondent No.4, Commissioner Sukkur Division and his appeal was also dismissed. So far legal position is concerned section 12 of the West Pakistan" Arms Ordinance, 1965 provides for cancellation and suspension of licence. Requirements for this purpose are that licence can be cancelled or suspended by the same officer who granted it or by any authority to which such officer is subordinate. It can be cancelled or suspended by any District Magistrate within whose local limits or jurisdiction the holder of the licence may be. Secondly reasons are to be recorded for cancellation or suspension after giving opportunity of showing cause to the holder and thirdly the reasons must relate to the security of public peace. Section 12 of the West Pakistan Arms Ordinance, 1965 is similar to section 18(a) of the Arms Act of 1878 of India. In the case of Beni Chand v. District Magistrate, Banda and another reported in AIR 1953 Allahabad 476 (Vol. 40, C.N.225), it is held that section 18(a) requires that authority suspending or cancelling a licence must himself record the reasons why the order has been passed and further it should appear from the order that it was passed because it was necessary for the security of the public peace to do so. Where none of these two essential ingredients mentioned in the section is to be found in the order, it is without jurisdiction and must be quashed. Division Bench of Peshawar High Court has observed in the case of Muhammad Afzal v. Deputy Commissioner, Peshawar PLD 1967 Peshawar 134 that for the purpose of cancellation under section 12 of the West Pakistan Arms Ordinance, 1965 it is incumbent upon the Deputy Commissioner to state reasons for cancellation specifically and mere reliance on the grounds stated in the show‑cause notice is not enough and is not fulfilment of requirements of section

12. Further those reasons must relate to security of public peace. It was further held that failure to follow provisions of law in cancelling the licence materially affected the substantial right of the licensee and in consequence writ of certiorari was issued. In the case of Ali Hyder v. Ijaz Hussain Malik and others 1968 P Cr. L J 127 it is held that cancellation of licence on the ground that petitioner was harbouring an offender is not relatable to "security of public peace" as is laid down under section 12 of the said Ordinance. It is further held in this case that withdrawal of licence is a penalty and is not left to the subjective satisfaction of the authority and authority must give reasons which are relatable to the security of public peace. In the instant case show‑cause notice was issued by the District Magistrate on 25‑5‑1988 to the petitioner in which it is stated that petitioner is a mischievous type of person and indulges in unlawful activities and is not a fit person to hold arms licence. These allegations are vague in nature and no instances have been quoted in support of them. In the order which was passed by District Magistrate on 20‑7‑1988 cancelling the licence, the reason given is that reply to l show‑cause notice is unsatisfactory and the licence is cancelled as recommended by Senior Superintendent of Police. This order does not fulfil the requirements of section 12 of the said Ordinance. District Magistrate has to apply his mind and give his own reasons for cancellation which are relatable to the security of public peace. A letter of recommendation of S.S.P. shows that proceedings were A initiated and there was dispute between petitioner and his bothers on one side and group of their relatives on other side over agricultural land. On that account there were cases filed by the parties against each other. Mere reliance on the recommendation of S.S.P. is not enough and the District Magistrate who cancelled the licence was bound under law to give specific reasons as contemplated under section 12 of the said Ordinance. In the appeal Commissioner Sukkur Division has relied on report that petitioner is involved in criminal case lodged at police station Ghotki as per F.I.R. No.251 of 1987 for offence under sections 307, 336, 34, P.P.C. and that case is reported to be B pending. This reason is not enough for maintaining the order of cancellation of licence passed by the District Magistrate. On account of a case which is pending, it cannot. be presumed that it would end in conviction. It may end in acquittal as well. Requirements which are specified in section 12 of the said Ordinance for passing an order of cancellation or suspension of licence were again not followed in appeal. During the proceedings before us in the Constitutional Petition one Bashir Ahmad filed application with prayer that he should be joined as necessary party for the reason that he had filed complains on the basis of which licence of the petitioner was cancelled and his C appeal was dismissed. Bashir Ahmed was represented by the counsel and his request was allowed. It is, therefore, clear that the licence has been cancelled because there is dispute between the parties ands the complaint was filed. This reason alone which is individual is again not relatable to the security of public peace. For facts and reasons stated above we are of the considered opinion that cancellation of licence and dismissal of appeal are not in accord with requirements laid down under section 12 of the Arms Ordinance and we hereby quash both the impugned orders to have been passed without lawful authority. Petition is allowed. M.A.K./G‑132/K Petition accepted.