' These are Constitutional petitions against order of Federal Government appearing in the Government gazette notification dated 22-8-1990, through which all the licences of the prohibited bore and automatic weapons issued during the period from 1-12-1988 to 22-8-1990 were cancelled.
Since in all these writ petitions common questions of law and fact are involved, therefore, it was decided to hear all the petitions together. The learned counsel appearing on behalf of the different petitioners argued that the impugned order is illegal, without jurisdiction and liable to be set aside for the following reasons:-- ' Firstly, that the petitioners have been condemned unheard. Neither they were served with any show cause notice nor they were heard before the order of cancellation of their licences was issued. In this behalf, the learned counsel for the petitioners have referred to the case of Ali Haider v. Ljaz Hussain Malik and another (1989 MLD 3032); ' Secondly, that the order should have been based on objective satisfaction based on facts but in this case no objective assessm ent was made; ' Thirdly, that the licences could only be cancelled on the grounds specified in Section 12, of the Arms Ordinance and not otherwise. In this behalf, they have relied on judgments in the cases of the Province of East Pakistan and others v. Abdul Karim and others PLD 1959 SC 246, Messrs Faridsons Ltd. Karachi and others v. Government of Pakistan, through its Secretary, Ministry, of Commerce, Karachi and others PLD 1961 SC 537, Saiyyid Abul A'la Maudoodi etc v. The Government of West Pakistan and others PLD 1964 SC 673, Ali Haider v. Ijaz Hussain Malik and others (1968 P Cr. LJ 127), Rokhanuddin v. Commissioner, Peshawar Division, Peshawar and another (1970 P Cr.LJ 647), Superintendent of Police, Special Branch Karachi and others v. Abubakar and another (1972 SCMR 154), Qasim v. Commissioner, Sukkur Division and others (1989 P Cr.LJ 189) and Ghulam Abbas v.
Federal Govenment Ministry of Interior and others (1989 P Cr. LJ 1936); ' Fourthly, it was argued by Syed Afzal Haider, Advocate alone that the care-taker Government was competent only to perform day to day functions and it was not within its competency to take policy decisions like the cancellation of Arms' licences; ' Fifthly, that the order is discriminatory as much as licences of some categories of citizens have been left untouched; ' Sixthly, that the grant of licence is discretion of the Government but once it is granted then it becomes a vested right and enjoyable as property. In this behalf, the learned counsel have referred to the cases of Ch. Ghulam Ali v. Commissioner, Lahore, Division, Lahore PLD 1981 Lahore 368 and Jumma Khan v. Province of Sindh and 3 others PLD 1981 Karachi 311.
' Lastly, it was argued, that the action could only be taken by the Provincial Government and not Federal Government.
2. On the other hand, the learned Advocate-General, Punjab argued that the principles of natural justice are not attracted in this controversy for the reasons that there is no mention of notice or hearing in section 12-1B, notification impugned in the petitions will be deemed as a notice, the issuance of a notification is an act of subordinate legislation, therefore, the question of hearing does not arise and that it is not possible to grant hearing when an order is passed against public- at-large. He, in this behalf, has referred to case of Nageshwar Prasad Singh v. State of Bihar and others (AIR 1960 Patna 359). It is added that hearing is not given when an order is promulgated. He justified the order with the argument that licences were issued by the previous Government in bulk and recklessly. The arguments are concluded with the submission that there is no discrimination.
3. Mr. Faqir Muhammad Khokar, learned Deputy Attorney General appeared on behalf of the Federal Government to defend the impugned notification. He argued that the application of the principles of natural justice depends on the nature of the powers exercised and while deciding whether the principles of natural justice are applicable, nature of the statute is also to be kept in mind. In the present case neither nature of powers nor statute admitted the application of principles of natural justice before cancelling the licences for prohibited bore. He, in this behalf, has referred to cases of District Magistrate, Lahore etc. v Syed Raza Kazim PLD 1961 SC 178, Godha Singh Jabra Singh v. District Magistrate, Ferozepore and another AIR 1956 Punjab 33 and Moti Miyan v.
Commissioner, Indore Division Indore and others AIR 1960 Madhya Pradesh 157. He added that when the action is not against the individuals then the principles of natural justice are excluded and are not attracted. In this behalf, he referred to the judgments in the cases of Kishore Singh v.
State of Rajasthan and another AIR 1954 Rajasthan 264, The Bihar School Examination Board v.
Subhas Chandra Sinha and others AIR 1970 SC 1269, Madan Mohan Varma and others v. University of Calcutta and others AIR 1979 Cal.
67. Rajkumar Agarwalla and another v. University of Calcutta AIR 1979 Calcutta 393, Rajiv Ratna Shukla and another v University of Allahabad and others AIR 1987 Allahabad 208. The Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur AIR 1980 SC 882, Assistant Commissioner of Urban Land Tax Madrass and others etc. v. Buckingham and Carnatic Co.Ltd AIR 1970 SC 169, Syed Sharif Hussain Bokhari Advocate v. Iqbal Hussain, Registrar, University of Punjab etc. Pll 1975 Lah. 110, Muhammad Siddique v. The Market Committee, Tandlianwala 1983 SCMR 785, Chairman, Employees' Old-age Benefit Institution and others v. M. Ismail Manawar 1984 SNICR 143 and Sikandar Sadiq and others v. University of Peshawar and others PLJ 1988 SC 504.
4. The learned Deputy Attorney General argued that there is no discrimination. It is a positive legislation and the classification is reasonable, real and on substantial basis, therefore, there is no discrimination and exception cannot be taken to the same. In this behalf, he has referred to the cases of A. Thangal Musaliar v. M. Venkatachalan Potti, Authorised Official and Income Tax Officer and another AIR 1956 SC 246, Messrs Pannalal Binjraj and others v. Union of India and others AIR 1957 SC 397, Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah 554, Brig (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and Fauji Founation and another v.
Shamimur Rehman PLD 1983 SC 457. The learned Deputy Attorney-General aruged that the definition of 'Government' was amended and now it includes in its folds both Federal and Prvincial Governments.
5. The learned Deputy Attroney General thereafter proceeded to explain with reference to the record, circumstances under which the Federal Government was compelled to take this drastic measure. He, in this behalf, has referred to following factors:-
(i) That most of the applications for grant of licence are not available. In this behalf, he submitted that out of 86 writ petitioners only the applications of 33 are available. He, in support of his contention has placed on record a statement, according to which the files of petitioners appearing at serial Nos.32 to 85 are not traceable. The photo copies of available applications have been appened with this statement;
(ii) That almost all the applications were incomplete and none of the applications was verified by the local police or District Administration;
(iii) The orders for the most part were not passed on individual applications but lists were supplied.
In this behalf, he has placed on record R.1 to R.11 through which 240, 202, 225, 202, 189, 147, 249, 195, 232, 204 and 188 licences were sanctioned respectively, it is added that there were many more such orders. The submission is that neither antecedents of the applicants were verified by the local police and District Authorities nor there was any scrutiny at the time of issuance of the orders, which were passed in bulk; and
(iv) That the large number of applications were mostly completed and signed by the same person.
In this behalf, he has referred to list of applicants supplied by Ghulam Hussain, Councillor Ward No,43 for sanction of prohibited bore licences for 12 persons. The perusal of these applications showed that only names of the applicants were given while other columns were left blank. The photo copies of the National Identity Cards were appened but the signatures of the applicants on the application forms did not tally with their signatures on the I.D. Cards. Then he referred to another file containing 44 applications. It was evident that the forms were completed and signed by one and the same person out of this list 13 licences were issued. The other file, which was produced by the learned Deputy Attorney General contained 60 applications, which were all incomplete. Thereafer he referred. To another file, which contained licences issued at the behest of Siraj S. Shamas Din, who had supplied the list to the concerned officials for issuance of licences. The entries in all these forms were in one and the same hand. He also referred to order dated 14-12- 1989, according to which 44 forms were appended with the list but the perusal of the forms showed that the same were completed on 24-5-1990.
6. It is submitted that there are many orders like annexure `R.3' where the list was enclosed, the licences were issued as per order and subsequently the list was replaced and on the strength of the previous order another set of licences were issued. It is explained that for instance 225 licences were issued against order annexure `R.3'. Thereafter the exhausted list was detached and another list appended with the order and licences issued to these persons. This of course was the feat of the officials of the Department, who started issuing the licences misusing such type of orders.
' It is submitted that one Iftikhar Hussain Zaidi, a political worker was employed as O.S.D. And he was unofficially made Incharge of the Arms section. He would send a chit alongwith the file for issuance of licence and thereafter collect the chit, file and licence. The licence will be handed over to the licensee and file will be kept with him. It is argued that it is for this reason that most of the files are not traceable in the Department. The arguments are concluded with the submission on this point that licences were indiscriminatory and recklessly issued to the workers of ruling party.
7. The arguments of the learned Deputy Attorney General in nut-shell are that there being mal- practices at large scale, the particulars and in many cases even the application forms being not available with the concerned Ministry, there was no way except to cancel the licences and it was not possible to give hearing to the licensees.
8. I have given my anxious consideration to the arguments of the parties, gone through the record, provisions of law and precedents relied upon both the sides. Now I proceed to deal with the arguments of the petitioners with reference to counter arguments of the respondents. The first argument on behalf of the petitioners is that the order could not be passed without hearing the licencees. On the other hand, the respondents argued that hearing was factually not possible for reasons that the particulars of all the licensees were not available. Even the application forms of most of the petitioners were not available. They have explained the reasons. The learned counsel for the petitioners on the point of hearing placed reliance on the cases of Ali Haider and Rokhanuddin but the same arc not relevant because in these cases only the the licences of the individuals were cancelled. The learned Deputy Attorney-General has rightly submitted that the right of hearing will depend on the nature of powers exercised, order made and the statute. He, in this behalf, referred to the case of Syed Raza Kazim where the petitioner was refused licence for a Revolver being a political suspect. Thereafter he referred to cases of Godha Singh Jabra Singh and Moti Miyan to submit that the impunged notification is an administrative order against which no writ lies. On the other limb of the argument that since the licences were issued in utter disregard of the law, rules and antecedents of the applicants, therefore, there was no way out but to cancel the whole lot and in such a situation the principles of natural justice are excluded. In this behalf, the learned Deputy Attorney General referred to case of Kishore Singh. It was a case under Arms Ordinance and licence was cancelled, the writ was refused. Then comes to cases of The Bihar School Examination Board, Madan Mohan Varma and others Rajkumar Agarwalla and another and Rajiv Ratna Shukla and another. These were the cases where the authorities had to cancel the examination as a whole on account of mass irregularities and cheating by the students. In all these cases it was held that the principles of natural justice as to right of hearing cannot be invoked in such a situation and there was sufficient material to cancel the examination as a whole. Then he referred to the case of The Tulsipur Sugar Co. Ltd., in this case the area was declared as town. This action was challenged. It was held that there was no occasion to grant hearing before such declaration is issued and principles of natural justice were not attracted.
' The next submission was that the aim of rules is to secure justice. If the application of the same is excluded by word or implication then principles of natural justice cannot be invoked. It is added that hearing is to be provided where necessary. It is submitted that if the action is taken under Section 12(a) of Arms Ordinance then hearing is possible as the licence is to be cancelled of individual or a small group of individuals but where the cancellation involves a large number as in the present case then no hearing is warranted. The learned Deputy Attorney-General, in this behalf, has referred to case of Sikandar Sadiq and others.
' The other submission in this context is that the vires of a statute, rule or notification cannot be questioned on the ground that it offends rules of natural justice. In this context the learned Deputy Attorney General has rightly referred to the case of Muhammad Sidique. In the alternative it was argued that the right of hearing is involved at a specified stage. The rules of natural justice are not embodied in the rules, therefore, the procedure adopted to be as provided in the statute. He, in this behalf has referred to the case of Syed Sharif Hussain Bokhari, Advocate and others where the nomination papers for Punjab University Senate scat were rejected.
' It is clear from the cases referred by the learned Deputy Attorney General that in case of action against a large number of citizens the principles of natural justice do not come into play for the reason it is not possible to give hearing to each and every person. The present case is on stronger and better footing than the case of Sikandr Sadiq and others where the examination as a whole was cancelled because of mass cheating and malpractices. In those cases at least the complete particulars of the candidates taking the examination were available with the authorities but in the present case even the particulars of the licensees were not available and none else but the licensees are responsible for this mess. It was their duty to submit application forms for grant of Arms' licence complete in every respect. It is held that neither there is a provision in section 12 (1)
(b) for granting hearing before ordering cancellation nor it was possible.
9. The second submssion on behalf of petitioners was that the order should have been based on objective satisfaction. The respondents have referred to the type of the orders bidding issuance of the licences, the state of the applications, lack of authenticity and verfication by the District and Police Authorities. It is proved that the licences were issued recklessly as according to the learned Deputy Attorney General in all, according to the data available, 12,505 licences were sanctioned while 8,350 were issued. The argument was that even the persons who were not interested and did not make application still the saction was granted. Therefore, the Government after fully analysing the situation decided to cancel the licences. Even otherwise if the particulars of the licensees are not available then there was no way out for the Government except to cancel the whole lot.
10. There is another interesting aspect of the matter. The petitioners and all the applicants applied for grant of licence for Kalashnikov on the ground that the same is required for self-protection. It is not a weapon of self-defence. It is a weapon of offence. The learned Deputy Attorney General submitted that the Government has realized this glaring mistake and for that reason a complete ban has been imposed on issuance of such licences. It will be in the fitness of circumtstances that if the remaining licences are also cancelled because this is the only way to completely take the Kalashnikovs out of the hands of the people, otherwise if some citizens are allowed to retain such weapons then this will also help and encourage the others to keep such weapons illegally.
11. The third submission is that the licences could be cancelled only under section 12 on the specified grounds therein and no other ground. The learned counsel for the petitioners made great effort in this behalf and referred to large number of precedents but the same are not relevant because section 12 deals only with the invididual cases while the action in the present case has been taken under section 12-1B. The same 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 proposesd cancellation or suspension, such officer, authority or Magistrate deems it necessary for the secruity 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."
(The relevant portion has been underlined by me).
'It is clear from the portion underlined that the Government has a free hand and unfettered powers in this behalf, therefore, the action is fully covered by the law and no exception can be taken to the same. The argument noted at No,6 is offshoot of the main argument, therefore, dealt here alongwith the same. The argument was that Government means Provincial Governmet. In this behalf, the learned counsel has referred to definition of Government as given in section 3(d). The same reads as under:-- "3(d) "Government" means the Federal Government for the whole of Pakistan and the Provincial Government in the case of a Province."
' The learned counsel while raising this argument perhaps did not take into consideration amendment brought by Act XXXVIII of 1974. The action can be taken by either Federal or Provincial Government, therefore, there is no force in this argument too.
12. Syed Afzal Haider, Advocate argued that this is a policy decision which could not have been taken by a care-taker Government. The argument is that care-taker Government was appointed only to hold elections and conduct day to day business. f find no force in the argument in view of the Full Bench decision of this Court in Kh. Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1991 Lah. 78). The relevant portion reads as under:-- "159. So far as the powers of the Prime Minister/caretaker Prime Minister as head of the caretaker Cabinet are concerned, I could not find any material difference between the two except that the tenure, of the caretaker Prime Minister is to last till induction into Office of a regularly elected Prime Minister by the new Assembly after the election. I am strengthened in this view by the fact that no separate oath of office has been prescribed for the caretaker Prime Minister while assuming office.
It is also interesting to note that the words "caretaker Prime Minister" as such do not appear anywhere in the Constitution.
13. The last ground that the order is discriminatory because Senators, M.N.As. M.P.As. And other classes of citizens have been allowed to hold the arms although the same were issued during the period in dispute. The learned counsel for the petitioners while raising this argument conceded that the Government is always empowered to have classification but it was added that it should be reasonable. On the other hand, it was argued on behalf of the respondents that only the licences of the citizens holding elected offices, who were the representatives of the people, civil servants etc. Were left untouched. It was argued that since the particulars and antecedents of these classes were readily available, therefore, the classification is reasonable and no exception can be taken to the same. It is argued that there is no merit in the argument that the order is discriminatory.
14. It was argued on behalf of some of the petitioners that in case the Government provides the petitioners security from dacoits and out-laws then they will not press these petitions. The learned Advocate-General sharply reacted to the argument and rightly submitted that the Government is bound to protect life, liberty and property of the citizens. This does not require any further guarantee through statement in these proceedings.
15. Before parting with the judgment I would like to point out that the petitioner and others purchased the arms after obtaining valid permission from the Federal Government to hold these arms and now the Federal Government by notification has cancelled the licences. The action of the Government amounts to compulsory acquisition of the weapons of a given category and according to Article 24 no one can be deprived of the property without being paid compensation, therefore, it is expected that the Government shall expeditiously decide the mode of payment of compensation/price of the Arms and Ammunition deposited by the licensees. The learned Deputy Attorney General submitted that the Government is conscious of its obligations and is already framing a scheme in this behalf.
16. The result is that there is no force in this petition. The same is dismissed.