1. NAIMUDDIN, J.-This petition under Article 199 of the Constitution calls in question the order dated 18- 6-1978, passed by the District Magistrate, Sukkur, respondent No. 2, whereby he has cancelled the Fire-Arms Licence No. 4159 of the petitioner, under the Martial Law Order No. 64 on the ground that the enquiries revealed that the petitioner has proved to be an undesirable person and not fit to hold fire-arms licence.
2. The petitioner in this petition has also joined the Province of Sind, Superintendent of Police, Sukkur, S. H. O.. Police Station, Rohri, District Sukkur as the respondents.
3. The petitioner inter alia has stated in the petition that he is the owner of 3 shops, one hotel, one double-storey residential house, one double-storey building rented out to the Muslim Commercial Bank, Shahi Bazar, Rohri. He has further stated that he is father of 4 sons, two of whom are officers in the National Bank of Pakistan at Sukkur and the third one is a student in a college. By these averments, it appears that the petitioner intends to show that he is a man of means and status.
4. The petitioner has also made a number of allegations against the then. S.H.O. Police Station, Rohri, for harassing him. He has further stated that due to harassment of the Police, he has had to file two writ petitions in the High Court of Sind, being Writ Petition No. 672 of 1970 and Writ Petition No. 630 of 1978.
5. The respondents have not filed any counter-affidavit controverting the allegations made therein.
6. We have heard Mr. Gul Bahar Korai, Advocate far the petitioner and Mr. Agha Ghulam A.I, Advocate for the respondents.
7. It is contended by Mr. Korai that the impugned order is illegal for it has been passed mala fide and in violation of the principle of natural justice inasmuch as no show-cause notice or opportunity 'of hearing was given to the petitioner before passing the impugned order.
8. On the other hand Mr. Agha Ghulam A.I submitted that Martial Law Order No. 64 does not provide giving of any show-cause notice or opportunity of hearing. Alternatively, it is submitted by Mr. Agha Ghulam A.I that such notice was given by respondent No. 2 on 5-11-1977.
9. So far as the attack on the impugned order on the ground of mala fide is concerned no particulars whatsoever have been given to show that respondent No. 2 who passed the impugned order had any malice towards the petitioner. In fact whatever allegations have been made in regard to malafide the same are directed against the local Police or the S. H. O. But not against respondent No. 2. Since no relief is claimed against the Superintendent of Police, Sukkur, S. H. O., Police Station, Rohri, respondent Nos. 3 and 4 respectively, it is not necessary go into the question of their mala fide.
10. Now, we would take up the first ground that the order has been passed in violation of the principle of audi alteram partem; It is admitted that before passing the order under Martial Law Order No. 64 no show-cause notice for passing such order was given nor was any opportunity of hearing given to the petitioner. However. The submission of Mr. Agha Ghulam A.I is that Martial Law Order No. 64 does not provide any such notice or opportunity of hearing. It is well settled that in every statute the provision of notice ands opportunity hearing before passing any order that adversely effect the rights of a citizen is considered to be a part of the statute unless, the statute itself expressly excludes such notice or opportunity of hearing. The same princi--ple will apply to any order that may be passed any Martial Law Order affect--ing a person or his property unless the Martial Law Order itself exclude such notice or opportunity of hearing. We are fortified in our view by the judgment of this Court in Tanveer Ahmed Khan v. District Magistrate, Sanghar and another (1) wherein a Division Bench of this Court consisting of Abdul Hayee Kureshi and S. A. Nusrat, JJ. (as they then were) at page 733 of the report observed as follows :- "The requirement of the above provision necessarily is that before can--celling any arms licence the Deputy Commissioner concerned must satisfy himself that the licensee, was an undesirable person and not fit to hold a licence. Such finding could be given only after enquiry and it is prerequisite of law that the person concerned. Against whom the enquiry is held, must be given an opportunity of hearing before any adverse order is passed against him."
11. The same Division Bench in relation to Martial Law Order 57 entitled as `Foodstuffs Distribution Order, 1978 ; in Asghar A.I and 10 others v. Ration--ing Controller, Hyderabad and another (2), has taken the view that the oppor--tunity of hearing before passing any adverse order thereunder was implied and necessary.
12. Now, we would consider the alternate submission of Mr. Agha Ghulam A.I that show-cause notice was given to the petitioner. In support of his sub--mission Mr. Agha Ghulam A.I relied upon the show-cause notice dated 5-i 1-1977 which reads as follows :- "You are hereby called upon under section 12(1)(a) of Chapter V of W. P. Arms Ordinance, 1965 to show cause within 15 days (fifteen) from the date of receipt of this notice as to why your gun/revolver/ Rifle Licence No. 5159/Rohri should not be cancelled. In case of failure it will be presumed that you have no mind to represent your case and that decision will be taken ex parte."
(1) PLD 1979 Kar. 732(2) PLD 1979 Kar 194 It will be seen from the above-quoted notice that it was given under sec--petition 12( 1)(a) of Chapter V of the West Pakistan Arms Ordinance, 1965, (hereinafter called the Ordinance). Section 12(1)(a) of the Ordinanceempowers the officer who has granted the licence or the authority to which he may be subordinate, or the District Magistrate within the limits of whose jurisdiction the holder of such licence may be for reasons to be recorded to writing, and after giving the holder of the licence an opportunity of showing cause against the proposed cancellation or suspension of the licence, to cancel or suspend the same. However, the exercise of such power is circumscribed by the condition that it could be cancelled only for the security of the public peace. While under Martial Law Order No. 64, a District Magistrate of the area is required to review the licence for fire- arms issued between Ist January, 1972, and 31st December, 1976, and he is empowered to cancel the same if he is satisfied that any such licensee is an undesirable person and not fit to hold the licence. The Martial Law Order No. 64 in Explanation (ii) to clause (3) defines an unde--sirable person as `a person of ill-repute, or a history-sheeter, or a person convicted for anti- social/disruptive activities or a political agitrator, or a Goonda, or a person who is in any way threat to law and order in the area. A comparison of the provisions of section 12 of the Ordinance and the Martiai Law Order No. 64 shows that scope of the two provisions are quite different. While under the former a licence could be cancelled, if it is necessary for the c security of the public peace, under the latter it could be cancelled, if the licensee is an undesirable person or not fit to bold the licence.
13. Under Martial Law Order No. 64, it was necessary for the District Magistrate to inform the petitioner on what ground he considered the petitioner an undesirable person and not fit to hold the licence, for grounds, could be any one or more of those mentioned in Explanation (ii) to clause (3) so that he could reply to the charges. Thus the cancellation of the licence without giving to the petitioner an opportunity of hearing to explain the charge against him was in clear violation of the principle of natural justice. We therefore, find no substance in the submission of the learned counsel for the respondents.
14. We may state that before passing the impugned order it was incumbent upon respondent No. 2, under Martial Law Order 64 to have been satisfied that the petitioner was an undesirable person and not fit to hold the licence and such satisfaction, which has had to be objective, could be acquired only on some material, but the order does not show that the respondent No. 2 had any material before him nor has any such material, though not alluded to in the order, but considered by respondent No. 2 has been brought to our notice.
15. We therefore, allow this petition and declare the order to be without Lawful authority and of no legal effect. However we make no order as to costs in the circumstances of the case.