1993 P Cr (PLP)

The Wukala Mahaz Barai Tahafuz Dastoor, statedly an organ of Idara Tehkik Qanoon, Pakistan, a registered society, has filed this Constitution petition seeking declarations to the effect that "The Surrender of Illicit Arms Ordinance, 1991 (XX of 1991)" is without lawful authority being not only mala fide exercise of power but also violative of the guarantees contained in Articles 9 and 25 of the Constitution. In addition to these declarations, the directions prayed for are that the Federal Government be directed not to prevent any citizen from keeping effective weapons within the four walls of his private home for the purpose of self-defence and that the respondents be further restrained from exploiting mass media to advance the cause of the impugned Ordinance. The other grounds urged in support of the declarations claimed and the directions sought are:-- (a) the circumstances do not warrant exercise of legislative power through issuance of Ordinance by the executive; (b) the legislative power has been exercised mala fide in order to rehabilitate the image of the Government which stood shattered by merciless killing within the privacy of homes at Lahore and Sheikhupura; (c) the Sharia Act, 1991, ensures privacy of home and as such to keep arms without licence within the four walls of the house for the purpose of self-defence would ensure privacy of the home and any measure taken to recover such arms through raids would violate the right of privacy of home guaranteed by the supreme law of the country; (d) section 1 (3) of the impugned Ordinance being discriminatory, is repugnant to the equal protection clause of the Constitution; and (e) the impugned Ordinance is impracticable and unworkable in view of the conditions prevailing in Balochistan and the Frontier Provinces.

2. The first question is that of locus standi of the petitioner to maintain the petition. This petition has been filed under Article 199 of the Constitution which provides inter alia that on an application of any `aggrieved party' the High Court may make an order or the declaration as provided in clause (a) (i) and (ii) of sub-Article (1) thereof. A petitioner to be an "aggrieved party" has to establish a direct or indirect injury to himself and a substantial and not a mere academic interest in the subject-matter. The right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. See Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223 (231). The extension of the rule recently propounded by superior Courts is represented by the cases of public interest litigation in which the proceedings are entertained to secure the rights guaranteed by law to that indigent majority, which because of lack of financial resources and due to social backwardness is incapable of securing its rights by itself. See for public interest litigation, Darshan Masih v. The State (PLD 1990 SC 513), People's Union for Democratic Rights v. Union of India (AIR 1982 SC 1473) and for aggrieved party see Associated Cement Companies Ltd. v. Pakistan (PLD 1978 SC 151), Anjuman Araian, Bhera v. Abdul Rashid (PLD 1982 SC 308) and Muhammad Javed Malik v. Government of Pakistan (1989 MLD 2192).

3. In the light of these precedents, the question whether the petitioner Mahaz is an aggrieved party may be noticed. The petitioner Mahaz claims to be devoted to the protection and preservation of the Constitution in Pakistan, as the petitioner Mahaz has taken upon itself the duty and function to monitor the enforcement of the Constitution and to take note of any significant deviation therefrom. It is claimed that the petitioner Mahaz is committed to exert all possible pressure through all available means to ensure that no deviation from Constitutional dispensation takes place and if it does occur the same be brought to an end as speedily as possible. The petitioner Mahaz in order to achieve its objectives and realise its claim will be perfectly justified in propagating its views for the purpose of educating the public and building up the public opinion but the necessary locus standi for maintaining the proceedings cannot be claimed unless it is in a position to show any direct or indirect injury to itself or to any of the petitioner or petitioners who may have been impleaded in a case and whose cause it may be piloting. Be that as it may, while pressing its demand not to recover the illicit arms from the persons who are keeping them in violation of the law of the land it cannot claim to be representing the cause of economically and socially backward segments of the I Society. In fact the declarations and the directions sought seek to encourage violation of law of the land. The petitioner Mahaz as such lacks necessary locus standi to maintain the petition and the same is, therefore, liable to be dismissed on this score alone.

4. The pleas that the circumstances do not warrant exercise of legislative power and that the exercise of legislative power is mala fide as the same has been exercised for extraneous considerations cannot be gone into by this Court in exercise of Constitutional jurisdiction. It is well established that the jurisdiction of a Court which is a creature of Constitution itself is confined to the enforcement of the Constitution as the supreme law and as such the judicial power does not extend to prying into affairs of Legislature or to holding of inquiry into motives of the legislation. The law-giver is sole judge of necessity of legislation and vires of legislation cannot be attacked by reference to extrinsic factors. Reference may be made to Fauji Foundation v. Shamimur Rehman (P L D 1983 SC 457).

5. Dr. A I3asit, Advocate, laid emphasis on the right of privacy of home as recognised by Sharia Act, 1991, and argued that by moving this petition the purpose is to seek protection against unreasonable searches of private homes on the ground of enforcement of the impugned Ordinance. The occasion to t hold searches and seize illicit arms would not arise if the illicit arms as defined in the Ordinance are surrendered to the Government pursuant to the notified directions. The persons having illicit arms in their possession can secure privacy of their homes by obeying the law as the right to violate the law cannot be claimed what to say of enforcing such a right by invoking extraordinary Constitutional jurisdiction of this Court. The possession of arms declared illicit in the impugned Ordinance is admittedly illegal under the law already in force, prior to the enforcement of the impugned Ordinance. The declarations claimed and the directions sought, if granted, would amount to allowing violation of the laws of the country i.e. Pakistan Arms Ordinance, 1965, the Explosive Substances Act, 1908, the Explosives Act, 1878. The impugned Ordinance has been issued to ensure recovery of illicit arms and the failure to surrender the same has been met with enhanced punishment. The plea that the result of the Ordinance would be to totally disarm citizens as against the terrorists who are equipped with most modern weapons, is without merit. It is only the might of the State and the law enforcing agencies which can deal with the terrorists and not the ordinary law-abiding citizens. It is also to be noticed that the licensed arms have not been withdrawn from the licence-holders and in this view of the matter the making of the directions prayed for would not be conducive to the public safety. 6.For all these reasons this petition fails and is dismissed in limine. A.A./W-1/L Petition dismissed.