1992 PLP 2548 (MLD)

(d) That the impugned notification is said to have been issued under section 12(1)(b) of the Arms Ordinance and the requirements of this particular provision of law read as a whole have not been duly complied with rather the basic idea underlying the same has been disregarded and violated, as such, the impugned notification contravenes the law as well as the principles of natural justice. (e) That the impugned notification has operated harshly against peace‑loving citizens who had been granted the requisite licences which have thus been cancelled for no fault of theirs.

7. In the written reply signed on behalf of the Federal Government by the two Section Officers, it is stated that "Government's orders for the cancellation of the arms licences were lawful, competent and in accordance with the principles .of natural justice" inasmuch as the impugned notification dated 22‑8‑1990 is in accordance with law issued by the orders of the competent authority under section 12(1)(b) of the Arms Ordinance, 1965 which were also not violative of fundamental rights. It was also maintained that the impugned orders of deposit of arms were not tainted with. mala fides but had been taken by way of policy decision.

8. The petitions being identical in content; hundreds in number and having been moved by a large number of lawyers at the principal seat as also at the two Benches at Abbottabad and Dera Ismail Khan, were jointly heard at Peshawar.

9. Mr. N.M. Khan, Oazi Muhammad Anwar, Sahibzada Akhtar Munir, Mr. Mumtaz Muhammad Khan, Mr. Mazullah Barkandi and Mr. Riaz Ahmad Khan argued the petitions filed at the principal seat while Mr. Amanullah Khan and Mr. Dost Muhammad Khan represented the petitioners who filed their petitions at Dera Ismail Khan Bench and Mr. Sher Afzal Khan appeared on behalf of the petitioners who had filed their petitions at Abbottabad Bench through a number of lawyers.

10. Notwithstanding a clear notice of hearing of these writ petitions to the Federal Government, there was none to represent them. The stance of the Government of N: W.F.P. was, however, very ably put forth before us by Mr. M. Sardar Khan, Advocate‑General of the Province.

11. With a view to cancelling the aforementioned category of licences, the Federal Government have invoked the provisions of clause (b) of subsection (2) of section 12 of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965) (hereinafter called as the Ordinance). It would, therefore, be appropriate to reproduce section 12 ibid which reads as under:‑‑‑ "

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; or (b) by any Judge or Magistrate before whom the holder of such licence is convicted of an offence against this Ordinance or against the rules and Government may, by a notification in the official Gazette. cancel or suspend all or any licences throughout the Province or any part thereof. (Underlining is by us). (2) Any appeal against an order of cancellation or suspension under clause (a) of subsection (1) may be made by the person whose licence has been cancelled or suspended to the immediate official superior to the authority making the, order within sixty days of the receipt by him of a copy of the order where appeal lies to any other authority, within thirty days of the receipt by him of a copy of the order."

12. Two important common questions of law have been raised in these petitions which may be formulated thus:‑‑‑ (i) Whether the power conferred upon the Government by the latter part of clause (b) of subsection (1) of section 12 of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance NOXX of 1965) (underlined) is not only unfettered but is also not subject to the principle of natural justice: "audi alteram partem"? (ii) Whether the impugned orders passed by the Federal Government as also the Government of N: W.F.P. are ultra vices Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973?

13. The learned counsel for the petitioners have vehemently contended that the licences granted to the petitioners have been cancelled without giving them any opportunity of being heard and, therefore, the orders are coram non judice. Reliance was placed on: (1) Abdul Wahid v. The State PLD 1990 Quetta 63 and (2) Sayed Wasaf Ali Shah v. Secretary Interior, Government of Pakistan and others 1991 PCr.LJ

32. It was next submitted that the impugned orders offended against Articles 4 and 25(1) of the Constitution of Islamic Republic of Pakistan in that the petitioners have not been afforded the equal protection of law and have also been discriminated against on the ground of a specific period during which the licences were granted. It was urged that the impugned orders were thus directed against only those licences who were granted licences during the period of regime of Pakistan People's party only on the so‑called ground of `indiscriminate grant of licences' without any attempt to verify the antecedents of the applicants or their need to possess such weapons whereas such licences were more recklessly issued not only during the post Martial Law Regime but also the Care‑taker Regime to which no exception could be taken. On the question of discrimination, it was also maintained that the petitioners have been further discriminated against when the licences issued to the Members of Parliament or the Provincial Assemblies, Chairmen of District Councils or Municipal Corporations or officers or employees of Government were exempted from the rigours of the impugned orders.

14. The learned counsel for the petitioners then argued that by virtue of licences issued to them, the petitioners had acquired a vested right to hold the licensed arms and ammunitions of which they could not possibly be deprived of except in accordance with law and the terms of the licence. In support of this contention cases of: (1) Superintendent of Police Karachi and others v. Abu Bakar and another 1972 SCMR 154, (2) Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667 were referred.

15. Mr. Muhammad Sardar Khan, learned Advocate‑General appearing on behalf of Government of N.‑W.F.P., substantially relied upon the latest case of Muhammad Farooq Asghar v. Federation of Pakistan and others PLD 1991 Lah. 321 and the earlier view from Indian jurisdiction in the case of The Bihar School Examination Board v. Subhas Chandra Sinha and others AIR 1970 Supreme Court 1269 and contended that the principle of natural justice enshrined in the maxim: audi alteram partem, was not of universal application. According to him, the cancellation of licences was not a case of any particular individual xho is being proceeded against under clause (a) of subsection (1) of section 12 of the Pakistan Arms Ordinance by the functionaries mentioned therein but is one passed under the latter part of clause (b) of subsection (1) ibid by the Government and, therefore, it was not necessary for the Government to give an opportunity to the licensees if the licences are cancelled as a whole. Relying on the case of Brig. (Rtd.) F.B. Ali and another v. The ,State PLD 1975 SC 506 the learned Advocate‑General urged that equal protection of law does not mean that every citizen no matter what his condition, must be treated in the same manner. He pointed out that guarantee of equal protection of law does not forbid discrimination with respect to things that are different or does not prohibit classification which is reasonable and is based upon substantial differences `having a relation to the objects or persons dealt and to the public purpose sought to be achieved'. The learned Advocate General thus maintained that if the impugned orders are placed on the touch stone of aforesaid test then it would be permissible classification. The learned Advocate‑General pointed out that section 12 of the Pakistan Arms Ordinance was pari‑materia with section 18 of the Indian Arms Act, 1878 and referred to the observations, notwithstanding being obiter dicta in nature, in another case from Indian jurisdiction in Nageshwar Prasad Singh v. State of Bihar and others AIR 1960 Patna 359 and maintained that the power conferred upon the Government by the latter part of section 12 ibid underlined by us, was a power of disarming all inhabitants of a particular locality either on the ground of policy or can the ground of emergency or in a condition of insecurity arising in the State and that the power of the Government could not, therefore, be applied so as to cancel the licence of any individual in a particular case. Drawing an analogy from these observations the learned Advocate‑General has been at pains to argue that power of cancellation of an individual licence covered by section 12, subsections (a) and (b) former part qua the invocation of the principle of natural justice that the authorities mentioned therein may, 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 has got no nexus with similar powers conferred on the Government under latter part of section 12(1)(b) ibid.

16. To start with, there are cases where the right of hearing is founded upon statutory provision of either a mandatory or of directory character and those where the statute is silent. The provisions of section 12(1)(a) and former part of clause (b) ibid are the instances of aforementioned rule whereas the latter part of clause (b) ibid would signify the last mentioned provision.

17. The Supreme Court has already had the occasion to point out in three cases, namely, in the cases of: (1) Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45; (2) Faridsons Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". 1t was further expressed that this rule applies even though there may be no positive words in the statute or legal document whereby the power is vested‑to take such proceedings, for, in such cases this requirement is to be implied into as the minimum requirement of fairness. This principle was then reiterated in the case of University of Dacca v. Zakir Ahmad PLD 1965 SC

90. The contention of the learned Advocate‑General that as the latter clause of section 12(1) (b) has no nexus with the former clauses, which provide for right of hearing to be a sine qua non, the Government was competent to cancel the licences without complying with the principle of natural justice implying right of hearing, has no substance. Again in Pir Shah Mardan Shah v. Chief Land Commissioner PLD 1974 Kar. 375 a learned Division Bench of Karachi High Court followed the rule enunciated by the Supreme Court in the cases of Mrs. Dina Sohrab Katrat, Faridsons Ltd., Abdur Rahman and Zakir Ahmad cited above and observed:‑‑ " .. it is well settled that the principles of natural justice are to be read as a part and parcel of every statute. In making the provision for notice to be given to the party affected, the rules sought to incorporate only what is otherwise to be read into them, in spite of absence of such provision:' In the instant case no analogy can possibly be drawn from the case of Bihar School Examination cited above wherein due primarily to the adoption of unfair means by vast majority of examinees at particular centre the opportunity to represent their cases to all candidates was held to be an impossibility and the impugned action was held to be intra vires. In that case it was established that a vast majority of examinees had adopted unfair means. In the present case, it was not at all established that large number of licences were granted indiscriminately and without any attempt to verify the antecedents of the applicants or their need to possess such weapons. This conclusion on the part of the Government, to say the least, was very wild, particularly, when the possibility of large number of genuine cases of applicants for licences during the specified period cannot also be excluded. See also Syed Mahmud Alam v. Syed Mehdi Hussain and others PLD 1970 Lah. 6.

18. The case of Nageshwar Prasad Singh also from Indian jurisdiction cited above, conceded to be inter dicta, has reference "to power of disarming all the inhabitants of a particular locality either on the ground of policy or on the ground of emergency or in a condition of insecurity arising in the State". The orders impugned before us had no reference to inhabitants of particular locality but to that of period which would not be covered by the interpretation that has been put on the underlined part of section 12(1)(6) ibid in the above cited case.

19. We are, therefore, of the considered view that the general consensus of judicial opinion referred to in Zakir Ahmad's case mentioned above seems to be, and to which we respectfully subscribe, that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the persons sought to be affected must at least be made aware of the nature of allegations against them by any means that is possibly workable and given a fair opportunity to defend the issuance of licences in their favour.

20. In arriving at this conclusion we are of course not unmindful of regulating, by genuine efforts, the issuance of licences to really deserving persons nor that the Government must have the powers conferred on it by the latter clause of section 12(1)(6) in situations visualised in the case of Nageshwar Prasad Singh cited above. But even so we find it difficult to accept the contention that the Government has the unfettered power of cancellation of licences on mass scale because those were issued during a particular regime. If it. is allowed to continue unabated then every succeeding regime would cancel the licences granted by the preceding regime which would neither be in the public interest nor in the interest of justice.

21. Turning to the second proposition formulated in para. 12 ante, it may be observed that right of individuals to be dealt with in accordance with law enacted into Article 4 and equality of all citizens before law and their entitlement to equal protection of law enshrined in Article 25 of the Constitution are fully attracted to the cases of the petitioners. By exempting all the M.N.As., M,P.As., Chairmen District Councils and Municipal Committees and Government servants from rigors of impugned order, it is not shown whether it was a reasonable exception. In the Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 Hamoodur Rehman, J as his Lordship then was, pointedly observed that "action taken upon extraneous or irrelevant considerations is also not action in accordance with law" and further that "action taken upon no ground at all or without proper application of the mind of the authorities would also not qualify as action in accordance with law and would, therefore, have to be struck down as being.action taken in an unlawful manner." Again in Miss. Khola Jabeen and others v. Government of N: W.F.P. through Secretary, Health Department and others PLD 1976 Pesh. 97 Abdul Hakeem Khan, CJ., as his Lordship then was, rightly propounded that "Article 25 declares that all citizens are equal before law and are entitled to equal protection of law" and also that "in a democratic set‑up where Fundamental Rights are justiciable, it is indeed idle to argue that in public matters the Government can make invidious distinction or is free to have capricious and whimsical exercise of power given to it". In cancelling the licences of citizens on mass scale on the grounds mentioned in the impugned order and yet saving a class of citizens enumerated therein from. rigors of the p offending notification, the Government has, in our view not only not acted in accordance with law but has also offended the fundamental rights of equality of all citizens before law and to the equal protection of law.

22. On the view of the matter that we take, we are constrained to accept all the petitions and quash the impugned orders of the respondents cancelling the licences granted to the petitioners. We also direct the respondents to act in accordance with law. If the respondents still hold the view that the licences E during the specified period have been issued recklessly then a mechanism should be evolved as to give to the licensees a fair chance to defend the issuance of licences in their favour during that period. We would, however, leave the parties to bear their own costs. AA./1408/P Petitions accepted.