P L D 1958 (W (PLP)

KAYANI, C. J.-Sayyed Raza Kazim, an Advocate of this Court, asks for a direction to the District Magistrate of Lahore that a licence for the keeping of a revolver be issued to him.

2. The petitioner applied for a licence in January 1957, but his application was refused without any reason being commu nicated to him. He then appealed to the Commissioner, and having waited for six a and half months without receiving a reply, he brought this petition. He presumes that the refusal may be due to his "having been associated with active political work during the years 1948 to 1951 ", which he describes later in the petition as "legal political work". He contends that Article 11 of the Constitution gives him a fundamental right to acquire property, subject to reasonable restrictions imposed by law, and the order of the District Magistrate violates that right firstly because in this case the executive, instead of being required to apply and execute the restrictions placed by law on the acquisition of firearms, has been asked to determine what the restrictions will be; secondly, because it was incumbent on the District Magistrate, involving as his order did a restriction of a funda mental right, to communicate the reasons for refusal. During arguments he attacked the validity of section 17, Arms Act, and rule 43 of the Arms Rules on the ground that they constituted delegated legislation.

3. In the written reply signed by the District Magistrate and the Commissioner, it is stated that according to normal practice a person whose application is rejected is merely informed of this fact, without the communication of any reasons to him. If he feels aggrieved, he appeals to the Commissioner. The reply explains that under the orders of the Government, Superintendents of Police are invariably consulted before the issue of licences, and that in this particular case the Superintendent of Police had reported that the petitioner was a political suspect. Thereupon the District Magistrate, Mr. Alamgir, rejected the application, and this he was competent to do under rule 43(1).

4. On the constitutional aspect of the case, it was stated in the reply that although firearms in the possession of an individual constituted property, they are not property in the sense in which this word is used in Article 11, and, in any case, the restrictions imposed on the acquisition of property in this case are in the interest of public peace and tranquillity. The policy which a District Magistrate follows is laid down by the Government, and in 1953 the Government had issued instructions that fresh licences for the possession of firearms should be granted only in cases where they were absolutely necessary and not as a routine measure. As regards the grant of licences for revolvers and pistols, the policy of Government, which is stated in annexure `C', was that licences in respect of these firearms should be granted very sparingly: firstly, because a revolver or pistol could be lost or stolen easily and thus become available for use by a criminal; secondly, because it was more difficult of detection when carried and thus handy in the accomplishment of political murders. In July 1953, the Government had issued instructions requiring District Magistrates to cancel the licences, among others, of persons who were accused of subversive activities against Government, and as the: petitioner himself admitted that he has been associated with active political work, if these instructions were to be obeyed, he was not entitled to a licence.

5. The petitioner is an Advocate of some promise and he already holds a licence for a rifle and has held it for about four years. He asked for a licence for the possession of a revolver, because he had to travel outside Lahore in connection with his professional duties, and as he mostly travelled by car, he required a convenient arm, like a revolver or pistol, for his personal protection. The police file shows that when the District Magistrate sent the case for report, the Sub Inspector made a report that the petitioner was "a political suspect No. 102 single star". Upon this report, the Senior Superintendent of Police wrote the words "blot recommended". The case was put up to the District Magistrate's Personal Assistant, Mr. Muhammad Sadullah, with a clerk's report to the effect that the petitioner had not been recommended by the police and that he might be informed of this fact. Mr. Muhammad Sadullah merely signed the report and forwarded it to Mr. Alamgir, the District Magistrate, who also signed it. On the basis of this record, a refusal was communicated to the petitioner.

6. We now turn to the relevant provisions of the Arms Act and the rules made thereunder. Section

14. No person shall have in his possession or under his control any cannon or firearms, or any ammunition or military stores, except under a licence and in the manner and t9 the extent permitted thereby. Section

17. The Central Government may from time to time, by notification in the official Gazette, make rules to determine the officers by whom, the form in which, and the terms and conditions on and subject to which, any licence shall be granted; and may by such rules among other matters- (a) fix the period for which such licence shall continue in force ; (b) fix a fee payable by stamp otherwise in respect of any such licence (c) * * * * * (d) empower any officer of Government to enter and inspect any premises (e) direct that any such person shall exhibit the entire stock of arms, etc., to any officer of Government so empowered; and (f) require the person holding any licence to produce the same at such place. Section

18. Any licence may be cancelled or suspended- (a) by the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a district, if, for reasons to b;, recorded in writing, such officer, authority or Magistrate deems it necessary for the security of the public peace to cancel or suspend such licence; or (b) by any Judge or Magistrate before whom the holder of such licence is convicted of an offence against this Act, or against the rules made under this Act; and the Central Government may by a notification in the official Gazette, cancel or suspend all or any licences throughout the Province or any part thereof and the Capital of the Federation. Rule 33.-A licence for the possession of arms and ammunition in reasonable quantities and for going armed for the purposes of sport, protection or display may be granted in Form XVI or Form XVIA, by the District Magistrate or by any Sub -Divisional Magistrate specially empowered by the Local Government in that behalf. Rule 43.-(1) Every authority empowered to grant or renew a licence or to give his previous sanction to such grant or renewal may in his discretion- (a) refuse to grant or renew such licences or to give such sanction, or (b) where the authority is subordinate to a Local Government, refer the application for orders to such Local Government: Provided that in any case in which such authority refuses to grant or renew a licence, the applicant for such grant or renewal may appeal to the immediate official superior of the authority so refusing.

7. We have no doubt that firearms constitute property and we do not understand how "they are not property in the sense in which the word is used in Article

11. Article 11 does not use the word in any particular sense, and where "property" means only immovable property, as in Article 15, the meaning is expressly stated. Property that in respect of which a right off proprietorship or ownership may be asserted, and in that sense, clearly a revolver or pistol constitutes property. The contention of the petitioner is not that the Arms Act is itself an invalid enactment, but that it opposes Article 11 in abdicating its function of imposing reasonable restrictions to the Central Government. It is appreciated that the control of firearms is a wholesome measure and is in the public interest, and this can be done only by a system of licensing, for it would be unwise to provide arms to criminals or to persons with shady antecedents. The further contention was that in so far as section 17 left to the Central Government the determination of terms and conditions on which a licence shall be granted, it exceeded the authority which Article 107 of the Constitution gives to Parliament to make laws. (The position in respect of the Indian Arms Act is not different because it was made under the authority of section 22 of the Indian Councils Act, 1861, which gave power to the Governor-General in Council "to make laws and regulations for all persons * * * * *" in the Indian territories under the dominion of Her Majesty). If in the determination of the terms and conditions the Central Government lays down the policy which shall regulate the grant of licences, then section 17 abdicates legislative power to the Government. If, however, these terms and conditions are ejusdem generic with the matters indicated in clauses (a) to (f) (fixing the period for which a licence will continue in force ; fixing fees in respect of licences, etc.), then there is no power in the Central Government to make any rule which can forbid the grant of a licence, and by providing in rule 43 an absolute discretion to the licensing authority to refuse the grant of a licence, it has completely gone beyond the scope of section 17.

9. We think that the words "terms and conditions" are wide enough to include a condition such as "a person shall not' be granted a licence unless he is of good character and is not suspected of being associated with unlawful activities", but if that were the policy of the Arms Act, then it is contended that it should not have been left to be determined by the Central Government and that it should have been indicated in the Act itself. As the Chief Justice of Pakistan said in The East and West Steamship Company v. Pakistan (P L D 1958 S C (Pak) 41), "no provision of the law can fall within the rule against delegated legislation if it is based on a policy, discoverable from that provision itself, which has to be implemented by the person against whom the charge of unautho rised legislation is made", but it was contended that the policy was not discoverable from section 17.

10. The truth is that the Arms Act was enacted at a time when it was necessary to control the possession of arms, not only for reasons connected with public tranquillity and the prevention of crime, reasons which hold good even today, but also for reasons of State, which are alien to the present political context. An instance lies in the fostering of a class of persons whose loyalty to the ruling class was rewarded, among other thins, with the conferment of a licence to possess arms. Revolver licences were thus particularly restricted to the landed gentry or to Government servants of a given status. This was a matter of policy which the Government in its legislative manifestations could not profess without political embarrassment. It was, therefore, not left even to rules, and it was left, as a matter of expediency, to the discretion of the licensing authority. Where the policy was for the public good, as in section 18, it was made manifest. But section 18 is confined to the securing of public peace, and if, public peace were the only object of the control of arms, law might have said that it lays down the policy ; for if a licence can be cancelled in the interest of public peace, it can be refused also on the same ground. But apart from public peace, one main object of the control of arms is to prevent persons with criminal associations from acquiring possession of them, as they are likely to use them, or lend them for use in the commission of crime. And neither this object nor any other object, apart from the security of public peace, has been made to appear from the Act. We are, therefore, constrained to hold that in the making of the Arms Act, the Legislative body of the time delegated its function of declaring its policy to the executive Government. Delegation, in order to be legitimate, must be concerned only with the carrying out of the legislative intention or with the supplying of details which in the modern welfare state is the business of experts. But where the legislative intent is totally absent, there f is no question of executing it ; and as for expert knowledge, District Magistrate possesses it in no larger measure than the Legislature for the purpose of ascertaining how far it would be proper to control arms.

11. No less forceful is the objection that if any restriction is to be imposed on the acquisition of property, it should bell imposed by "law" and not by rule. It was contended for the State that the term law includes rules also, but for this contention reliance was placed on the definition of "existing law" in Article 218, and that term was intended for special contexts, such as that of Article 4, which declares void any "existing law" that is inconsistent with a fundamental right, or that of Article 110, under which an "existing law" shall prevail against any repugnant provision of an Act of a Provincial Legislature. It could not have been intended that restrictions on the acquisition of property should be imposed by rules. A fundamental right could not be restricted by rules. A restriction is an exceptional measure, and I must be based on some principle; and it is obvious that matters of principle should be settled by the Legislature. Further, the restrictions have to be reasonable, and therefore, must be expressed ; for their reasonableness can be tested in Courts.

12. Next, we come to rule 43, and this, we notice, makes it discretionary for the licensing authority to refuse the grant of a. licence. Quite, clearly this is in excess of the power granted by section 17 to make rules, as we have already indicated. If there had been a rule that the licensing authority will not grant a licence to a criminal or a person of bad character, it could, reasonably fall within the "terms and conditions" spoken or, by" section '17 but it is no determination of terms, and condition to say that a licence may be refused in the discretion of the licensing authority, which 'means that he need not give any reason--and indeed he gives no reason according to normal practice-for' his refusal. Assuming that the rule is valid, then the words "ink his discretion" enable him to' give no reason, and so long as he does not act in bad faith, they also enable him to act in an arbitrary manner. He can thus refuse a licence to a person who is not, according to his lights, a person of status, a clerk for instance, who however, has such a burning passion for the acquisition of a revolver that he sets apart Rs. 5 a month from his salary to enable him to purchase a revolver at the end of four years or so. But when he goes to the District Magistrate with an application for a licence, that officer can, in his discretion, refuse to grant it. We do not accept the argument employed in Narasimha v. District Magistrate Cuddapah (A I R 1953 Mad. 476), that "the discretion is obviously a judicial one as his order is subject to an appeal to the Revenue Board" and that "when his order is subject to an appeal, it is his duty to give reasons for his refusal, for the appellate tribunal must be in a position to evaluate the correctness or reasonableness of his rejection". In that case because no reason had been given, the order was treated to be of an arbitrary character and set aside. We think that the appellate authority could very well dismiss the appeal solely on the ground that sine the matter was in the discretion of the licensing authority, it was not necessary for that authority to give any reason. It will be noticed that even under section 18 of the Act, the power of can cellation is made subject to reasons to be recorded in writing and the reasons are to be connected with the security of the public peace. It is indeed remarkable that, in the same enactment, section 18 should provide such adequate safeguard against the arbitrary use of discretion and section 17 should make it possible for the Central Government to frame a rule which so completely negatives the fundamental concept underlying subordinate legislation.

13. We, therefore, hold that rule 43 of the Arms Rules i s totally void, while section 17 is void to the extent to which it leaves the determination of the terms and conditions on which a licence may be granted, to the executive Government. So long as the Legislature does not lay down a policy, District Magistrates will no doubt guide themselves by considerations of law and order, in the light of observations made in this judgment, and consistent with the responsibilities of their position. Where the order con sists of a mere signature, based on the signature of a personal assistant, which itself is based on the report of a clerk, which reproduces the opinion of the Senior Superintendent of Police, which in itself is not an opinion but a reproduction of the opinion of a Sub-Inspector, we are constrained to say that the District Magistrate has not acted with responsibility. The petitioner has admitted having been associated with "active political work" and "legal political work" during the years 1948 to 1951 and the respondents have not carried the admission any further by stating that he is a "political suspect". If a person is to be deprived of the right to acquire property, the reason for doing so must be p clearly stated and not stated in the suspicious manner in which a political suspect is suspected. Neither in the written statement nor during arguments was it explained to us what a "single star political suspect" might be, except that he would not be as devoid of political morals 'as a "double star political suspect", but considering that the petitioner has been allowed to hold a rifle and that he is an esteemed member of an honourable profession, we do not think much of the Sub-Inspector's remarks which may well be in the spirit of old imperialism wherein a political suspect was an anarchist, a revolutionary, a dangerous criminal. While setting aside this order and directing the District Magistrate to issue a licence, as prayed for by the petitioner, we hope that, in future, the applications of respectable persons will receive more responsible attention from the District Magistrate. K. M. A. Petition accepted.