1989 PLP 3032 (MLD)

SAJJAD AHMAD, J.--The petitioner, Ali Raider, is aggrieved by an order of Mr. Ijaz Hussain Malik, Additional Deputy Commissioner (General), dated the 14th of February, 1967, made by him in his capacity as the District Magistrate, Rawalpindi, whereby he cancelled the arms licences of the petitioner held by him for a pistol and a .12 bore gun. The petitioner appealed to the Commissioner, Rawalpindi Division, which was unsuccessful.

2. The action of the. cancellation of the petitioner's licences was instituted by the police on the suspicion that, he was harbouring one Lal, a husband of his niece, who was wanted by the police in connection with a murder case. The Superintendent of Police, Rawalpindi, wrote to the District Magistrate, Rawalpindi, that the petitioner's licences be cancelled. Thereupon, the Additional Deputy Commissioner (General), acting in the name of the District Magistrate, Rawalpindi, issued a show-cause notice to the petitioner on the 18th of January, 1967, which was as follows:-- "It has been reported by the local Police of Police Station Golra that you, Ali Haider son of Nadir Khan, Awan, of village Maira Jafar, hold firearm licences for a shotgun and a revolver and you are supporting Lal, a proclaimed offender and accused in a case under section 302/307/148/149, P.P.C., Police Station Golra, and thus have created complications for the District administration and are not a fit person to retain firearms. You are hereby directed to show cause within seven days from the receipt of this notice as to why your licences for shotgun and revolver should not be cancelled." The petitioner submitted a detailed reply to this notice (vide copy Annexure "B"), stating that he was a Government Servant in the Defence Department with a faithful record in the service of the Government, and being a hereditary Lambardar of village Maira Jafar he had received money awards and certificates in recognition of his services and that the allegation against him that he was a supporter of Lal was false, brought against him by his enemies. The learned Additional Deputy Commissioner, however, passed the impugned order which is in two words:- "Licence cancelled." One objection to this order is that it does not state whether both or which of the two licences was cancelled. Since however, the show-cause notice had been given in respect of both the word "licence" in the order of cancellation, although used in singular, was intended to cover both.

3. The main objection to the impugned order is that it does not record any reason for the action taken, which is in this regard of the statutory requirement of section 12 of the West Pakistan Arms Ordinance, 1965 (hereinafter referred to as the Ordinance), and further that even if a reason be inferred by reference to the show-cause notice that the petitioner was harbouring his relative, Lai, it is not relatable to the statutory purpose as laid down in the section. Section 12, aforesaid, reads as follows:- "

12. Cancellation and suspension of licences.--(1) 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 any District Magistrate within the local limits of whose jurisdiction the holder of such licence may be, when for reasons to be recorded in writing, and after giving the holder of the licence an opportunity of showing cause against the proposed cancellation or suspension, such officer, authority or Magistrate deems it necessary for the security of the public peace to cancel or suspend such licence; ...." Comparing this section to section 18 of the Arms Act of 1878, which has been replaced by it, it will be seen that the show-cause notice is a new ingredient in section 12 which was not there in section 18 (old) and this addition must be given its full effect. When a show-cause notice is given, the object is that the person on whom it is served gets an opportunity to explain the allegations against him for which action is proposed to be taken: If the show-cause notice is not to be reduced to a mere formality, the contents of the reply in response to the show -cause notice must receive due consideration. The grounds mentioned in the show -cause notice cannot become reasons for the action that may be taken unless the grounds are tested in the light of the explanation tendered and stand the scrutiny of the authority who has to take action on an objective assessment of the material supplied in proof of the allegations contained in the show=cause notice. When the statute enjoins that the reasons must be recorded in writing, the plain meaning is that the reasons must be manifested in the order itself to be self-explanatory for the purpose of showing that the order has a foundation in reason and is not capricious -or arbitrary. We consider that whereas the grant of a licence is a privilege, the conferment of which lies in the domain of executive authority, once the privilege is conferred by the grant of a licence, its withdrawal or revocation is a "penalty" which falls within the Sphere of criminal jurisprudence. When a penalty is imposed on an individual, which injures his person or property, the processes of the law as laid down for the imposition of the penalty must be strictly observed.

4. In the present case, there is undoubtedly an allegation made by the police, as mentioned in the show-cause notice, that the petitioner was harbouring Lal, which he denied. Apart from this, there is no proof on the record that he did harbour him and in the absence of any poof of the charge it was difficult to accept its refutation. The petitioner denied the accusation as untrue and unless it was shown to be correct, he could not have. negatively proved that it' is incorrect. Assuming, however, that the allegation is correct, the next question which arises is whether the allegation that he was harbouring Lal, is germane to the statutory purpose for which the penalty of revocation of licences can be imposed, viz., "security of the public peace." Harbouring an offender is an offence under section 172 of the Penal Code and if the petitioner had been tried for that offence and found guilty and convicted, there could have been a basis for action against him under section 12(b) of the Ordinance if the offence was found to have involved a defiance of any of the provisions of the Ordinance or the Rules made thereunder. But it is a long jump, from a mere assumption that he was harbouring an offender, to hold that he was doing something criminal and reprehensible which attracted the application of section 12(1) and that it was necessary for the security of the public peace that his licences be cancelled.

5. It was argued by the learned counsel appearing for the State that revocation of licences must be left to the determination of the revoking authorities in their subjective satisfaction. As already stated above, the withdrawal of a licence is a penalty and the act of imposing a penalty must be based on an objective assessment of the material on which it is made and the matter cannot be left to the arbitrary will or caprice of the revoking authority. When the statute requires that the revoking authority must give reasons for its action, we feel that the issue there travels outside the mere subjective satisfaction of the authority and reaches a domain where the absence of reasons or the scrutiny of the reasons will fall for determination of the High Court in its supervisory jurisdiction under Article 98 of the Constitution. In our mind this is a fit case in which we must hold that the order of the learned District Magistrate, revoking the licences of the petitioner is without any lawful authority, as it contains no reason for the action taken and no reason exists relatable to the statutory purpose for which the licences could be cancelled under section 12 of the Ordinance. We accept this petition with costs. H.B.T./A-640/L Petition accepted.