MAMOON KAZI, J.-The petitioner in all these petitions is a person who has been aggrieved by the Notification issued by the Ministry of Interior and Narcotics Control (Interior Division), Government of Pakistan No.SRO.870 (1)/90, dated the 22nd August, 1990 cancelling all licences granted under the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965) in respect of prohibited bore and automatic weapons after the period commencing from the 1st December, 1988.
2. It may be pointed out that the petitioners had earlier been granted licences by the respondent Government by virtue of the power vesting in it under subsection (2) of section 11-A of the aforesaid Ordinance.
3. The main contentions raised on behalf of the petitioners by their learned Counsel are:-- (1)That the said Notification offends against the principle of audi -alteram parten which is embeded in every statute unless expressly excluded; (2)that the action taken against the petitioners is discriminatory and is also violative of Article 25 of the Constitution of Pakistan according to which all citizens are equal before law and are entitled to equal protection of law; (3)that the action is also violative of law as the same has not been taken in accordance with the provisions laid down in section 12 of the Arms Ordinance as in no case a general Notification can be issued without specifying a particular province to which it made applicable, and (Mamoon Kazi, J)
(4) that the action is unreasonable and mala fide.
4. These petitions have been resisted by the respondent Government, according to which, the impugned Notification has been issued under section 12(l)(b) of the Arms Ordinance and the same is wholly in consonance with the law. It has been further contended that the Government had noticed that during the period from 2-12-1988 to 6-8-1990 a large number of licences for fire-arms including licences for weapons with prohibited bore had been granted to the citizens. Such licences had been granted indiscriminatery, without any attempt to verify the antecedents of the applicants or their need to possess such weapons, with the result that during the said period, consisting of about 20 months, the licences granted had exceeded 75,000 which included 8,350 licences for weapons with prohibited bore. The licensees had been issued ignoring the normal procedure'-regarding completion of prescribed application forms, photo copies of National Identity Card, Police verification etc. In some cases, even the signatures of the applicants were not available on the applications. Consequently, the licences issued during the said period would have adversely affected the law and order situation in the country. Since a large number of sophisticated weapons with prohibited bore had come into the hands of public, it was, therefore, considered necessary in public interest to cancel all such licences granted during the said period and hence a need was felt for issuance of the impugned Notification.
5. The case on behalf of the petitioners has been argued before us by Syed Nasiruddin, Mr. Azizullah Shaikh, Mr. M.M. Pirzada, Mr. Rasheed A. Akhund, Mr. Rasheed Rizvi, Mr. Talmiz Burney, Mr. Khawaja Naveed Ahmed and Mr. Saeeduddin. The arguments on behalf of the respondent were addressed by.Mr. Aftab Ahmed Ak.Hund, learned Advocate-General Sindh and Mr. S. Shahudul Haquc, learned Counsel for the Federal Government.
6. The Notification around which the entire controversy revolves is as follows:- "PART 11 Statutory Notification (S.R.O.
I Government of Pakistan MINISTRY OF INTERIOR AND NARCOTICS CONTROL (interior Division)
NOTIFICATION Islamabad, the 22nd August, 1990 S.R.O. 870(1)/90.--WIIEREAS it has come to the notice of the Federal Government that., after -the Ist day of December, 1988, large number of licences in respect of prohibited bore weapons and automatic weapons were granted indiscriminately and without any attempt to verify the antecedents of the applicants or their need to possess such weapons; AND WHEREAS the Federal Government is satisfied that it is necessary in the public interest to cancel the aforesaid licences, other than those granted to the persons hereinafter specified; NOW, THEREFORE, in exercise of the powers conferred by clause (b) of subsection (1) of section 12 of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965), the Federal Government is pleased to cancel all licences granted under the aforesaid Ordinance in respect of prohibited bore weapons and automatic weapons after the 1st day of December, 1988, other than those granted to Members of Parliament or the Provincial Assemblies, Chairmen of District Councils or Municipal Corporations or officers or employees of Government.
(N. 7/8/90-Arms. 11)
ABDUL AZIZ Section Officer.'
The above Notification was further amended by another Notification namely, S.R.O. 1054(1)/90, dated the 8th October, 1990, which is also reproduced as follows:-- "MINISTRY OF INTERIOR AND NARCOTICS CONTROL (Interior Division)
Islamabad, the 8th October, 1990 S.R.O. 1054 (1)/90.--In exercise of the powers conferred by clause (b) of subsection (1) of section 12 of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965), the Federal Government is pleased to direct that the following amendment shall be made in this Division's Notification No. SRO 870 (1)/90, dated the 22nd August, 1990, namely:-- in the aforesaid Notification, for the words 'or officers or employees of Government', the comma, words and figures organisations set up or controlled by the Government for protection of their installations, all serving and retired Government officers and employees of organisations set up or controlled by the Government in BPS-17 or equivalent and above' shall be substituted.
(No. 7/8/90-Arms. 11)
(ABDUL AZIZ), Section Officer 7.Turning to the first contention of the learned Counsel for the petitioners, it has been argued that the impugned action is violative of the principles of natural justice as no show-cause notice was served upon any of the, petitioners before the issuance of the impugned Notification by the respondent. It has been further argued by the learned Counsel for the petitioners that a licence once issued, its calicellation amounts to a penalty which cannot be imposed without objective assessm ent of the material justifying such action. Reliance in this respect has been placed on the case of Pakistan v. S. Hussain Ali Shah PLD 1960 SC 310, Ch. Ghulam. Ali v. Commissioner, Lahore Division, Lahore PLD 1981 Lahore 368, and Tanweer Ahmad Khan v. District Magistrate, Sanghar PLD 1979 Karachi 732. In the case of S. Hussain Ali Shah, it was held that grant of licence was not merely an act of discretion or unilateral act on the part of the Government but it was granted in fulfilment of an undertaking, which imposed certain prior conditions upon the applicant, which conditions he had fulfiled, and thereby there had accrued in his favour, something in the nature of a legal right and that right had been respected, and in so doing, the Government had performed no bare uncontrolled act of discretion under their powers, but had exercised the relevant power as a matter of obligation in favour of the respondent. In this case, the pretext of non-compliance with the rule, requiring submission of a Bank. Certificate with import application was held to be an afterthought, and in the light of the fact that a licence had actually been issued after proof of the receipt of the sale proceeds of the film from abroad in regard to which controversy existed, it was held that the action appeared to be merely colourable. In the case of Ch. Ghularn Ali it was held that once licence is granted, its revocation or suspension amounts to penalty and imposition of such penalty must be strictly construed and not left to subjective satisfaction of the authority concerned.
Consequently, revocation of licence was held to be permissible only on the basis of objective assessm ent of material and not to be motivated by caprice or arbitrary will. In the case of Tanweer Ahmad Khan, it was held that a licence for fire-arm could be cancelled only after serving the petitioner with a show-cause notice or at least granting a hearing. Section 11-A which was inserted in -the Arms Ordinance, by West Pakistan Arms (Amendment) Act in 1974 provides under subsection (2) thereof that no licence for the arms and ammunition notified under subsection (1) of the said section shall be issued except by the Federal Government and according to subsection (1) thereof, the Federal Government shall have the power to specify arms and ammunition which are to be prohibited bores for the purpose of the said Ordinance. Section 12 of the Arms Ordinance under which the impugned Notification has been issued provides as follows:-- "12.Cancellation and suspension of licences.--(l) 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 or 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 for 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 licence throughout the Province or any part thereof.
(2)An 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 m4k-ing the order, within sixty days of the receipt by him of a copy of the order, where appeal lies to Government, and where appeal lies to any other authority, within thirty days of the receipt by him of a copy of the order."
A perusal of the above provisions shows that a licence issued may be cancelled or suspended-- (1)either by the officer by whom the same was granted; (2)or by any authority to which he may be subordinate; (3)or any District Magistrate within the local limits of whose jurisdiction the holder of such licence may be.
Section 12(l)(a) further shows that such action can be taken bythe officer or authority concerned 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. The said provisions further indicate that the licence may be cancelled or suspended only when such officer, authority, etc. Deems it necessary, for the security or the public peace to cancel or suspend such licence. Section 12(l)(b) further shows that a licence granted to a person may be cancelled by any Judge or a Magistrate before whom the holder of such licence is convicted for an offence against the Arms Ordinance or against the rules framed thereunder. The said provisions further authorise the Government to cancel or suspend all or any licences throughout the province or any part thereof by a Notification in the official Gazette. The term "Government" has been defined by section 3 of the said Ordinance to mean "the Federal Government" for the whole of Pakistan and the "Provincial Government" in the case of a Province".
8. The learned Advocate-General has argued that whereas it has been clearly postulated in section 12(1)(a) that no licence can be cancelled without giving its holder an opportunity of showing cause against proposed cancellation or suspension, no such condition would be applicable if cancellation or suspension of the licence is made under section 12(l)(b) of the said Ordinance. Both the learned A.-G. As well as Mr. Shahudul Haque have also invited our attention to two judgments respectively given by the Lahore High Court and the Balochistan High Court in the case of Muhammad Farooq Asghar v. Fedei ation of Pakistan PLD 1SO1 Lahore 321 and Haji Mir Ghulam Muitafa v. Government of Pakistan PLD 1991 Quetta 57 wherein the same Notification which has been impugned in the present petitions had come under examination. A similar contention raised on behalf of the petitioners before a Division Bench of the Balohistan High Court in Haji Mir Ghulam Mustafa's, case,was repelled on the grounds that no action f the Federal Government for controlling a situation of emergency could back down as without lawful authority as would appear from the follow* observations made by the Division Bench:- There is no doubt that Federal Government for controlling any situation of emergency, condition of insecurity, communal riot, factional dispute or disturbance of graver nature enjoys plenary power to cancel, suspend arms licence, or to disarm inhabitants of particular area or group of person or class of people. In our opinion prerogative of the Federal Government in this behalf cannot be controlled, restricted or abridged by introducing service of notice to the licence-- holders. In certain eventualities, any laps-e or delay of invoking authority may defeat and frustrate very object of exercising such prerogative. These actions are obviously of executive nature hardly needing any adjudication. In such circumstances principles of natural justice even otherwise have no applicability as considered in $aiyyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and another PLD 1964 SC 673 at pages 741-742 and 772-773."
In Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673 it was observed by Fazle Akbar, J. That "hence taking action in an emergency without observing the maxim audi alteram parten. Would be a valid exercise of plenary administrative discretion. In other words, in such exceptional cases the safeguard of fair hearing can be relaxed. It is against this background of guiding consideration I must view the action of the Government".
9. The question was also examined by the learned Division Bench of the Balochistan High Court from a different angle as according to it, a comparison of the provisions Of section 12(l)(a) and 12(l)(b) of the Arms Ordinance clearly indicates that the requirement of a show-cause notice which has been stressed in the former has been dispensed with by the latter. The same reasons appear to have weighed with the learned Single Judge of the Lahore High Court in the case of Muhammad Farooq Asghar as it has been observed by him in the said case as follows:-- 'The next submission was that the dim 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."
10.. We would like to point out that there can hardly be two opinions in regard to the fact that the rule of justice embodied in the maxim audi alterlim. Parten, meaning thereby that no man shall be condemned unheard, extends to' all proceedings, by whomsoever they may be held which may affect any right of a party concerned in a dispute. However, the rule is subject to exception depending upon the circumstances of each case. In the present case, although it has been expressly provided in section 12(l)(a) of the Arms Ordinance ' that proposed cancellation or suspensions of a licence cannot be made without affording an opportunity to its holder to show- cause against the same. However, there is no express reference to such show-cause 4otice in section 12(l)(b). Apart from this, we would like to point out that section'12(l)(b) clearly authorises the Government, which expression, as pointed out earlier, would include both the Federal as well as the Provincial Government, 'to cancel or suspend all or any licences throughout the province or any part thereof by a general notification. Such provision clearly indicates, if not expressly, at least by implication, that the requirement of notice was intended to be excluded from the said section because it can hardly be possible to issue show-cause notice to the individual licence-holders if there is a large ,number of cases which would be affected by the notification. Even in the case of Muhammad Farooq Asghar similar observations have been made by the learnedSingle Judge of the Lahore High Court. The learned Judge has referred to the cases of the Bihar School Examination Board v. Sublias Chandra Sinha and others AIR 1970 SC 1269, Madan Mohan Varma v. University of Calcutta and others AIR 1979 Cal.
67 and Rajiv Ratna Shukla v. University of Allahabad AIR 1981 All. 208 wherein authorities had to cancel examination as a. Whole on account of mass irregularities and cheating by the students.
When the action was challenged it was held that the principles of natural justice cannot be invoked. In a situation where there is sufficient material to cancel the examination as a whole. In the present case also, h s as has been alleged in the counter-affidavit filed' on behalf of the respondent, Government,. Action has been taken on account of , large irregularities discovered at the time of grant of licences to the petitioners. Consequently, we find ourselves in agreement with the contention raised on behalf of the respondent that service of show-cause notice on the petitioners in the present case was neither possible nor the same was required under the law.
Although we may not go to the extent of agreeing with the observations made by the learned Division Bench of the Balochistan High Court in the case of Haji Mir Ghulam Mustafa reported in PLD 1991 Quetta 57 that the power was exercised by the respondent to control a situation of emergency, and we say so with utmost humility and respect, but in-our opinion, firstly, by implication the requirement of serving show-cause notice on the petitioners was excluded by the provisions of section 12(l)(b) and also for the reason that a large number of persons was affected by the impugned Notifications it was not possible to serve show-cause notice on all such persons individually who could be affected by the said Notifications.The first contention raised on behalf of the petitioners, therefore, cannot be accepted.
11. Turning now to the second contention raised by the learned Counsel for the petitioners, it. Has been argued that the action was clearly discriminatory and mala fide. In this regard, the argument has been two-fold. Firstly, according to the learned Counsel, the Notification has been issued only in respect of persons to whom licences for keeping arms of prohibited bores had been issued between 2-12-1988 and 22-8-1990 and the persons to whom such licences had been issued prior to the said dates or thereafter have been clearly excluded from the Notification. The second contention is that a certain class of persons has been expressly excluded from the said Notification which further shows that the action taken against the petitioners was completely discriminatory.
12. In this regard, it may be pointed out that as was held in Brig.. (Retd.)
F.B. Ali v. The State PLD 1975 SC 506 the expression "equal protection of law" occurring in Article 25 of the Constitution does not forbid discrimination with respect to things different nor does it prohibit classification which is reasonable and is based upon substantial differences having nexus to the objects or persons dealt with and to the purpose sought to be achieved. It guarantees equality and not identity of rights. The object in the present case as is clear from the impug ned Notification as well as the stand taken by the respondent Government in the counter-affidavits respectively filed on its behalf clearly appears to be to safeguard '$ublic interest", as according to it, licences in respect of prohibited arms had been indiscriminately issued to a large number of persons during the period in question. No doubt, the Notification dated 22-8-1990 onlycovers period between 2-12- 1988 and 22-8-1990, on which date the Notification "has been issued, but the contention Pf the respondent, Government clearly being that it was only during the said period that licences for prohibited fire-arms had been indiscriminately issued, the action cannot be struck down on the ground of discrimination for the said reason alone as there clearly appears to be nexus between the classification made by the respondent in the Notification and the object which it ostlensibly tried to achieve. We are also of the view that the impugned notification is not discriminatory even from any other angle as classific4tion by exclusion of certain persons from the notification is permissible under the law on the same principle. As was held in F.B. Ali's case equal protection of law would not mean that every citizen, no matter what his condition be, must be treated in the same manner. Equal protection of law would only mean that there would be no discrimination between a particular class of persons vis-a-vis the enjoyment of rights in respect of their life, liberty, property etc. If it can be shown that the classification is reasonable and the distinction drawn by the authority taking action can be justified under the circumstances, the action cannot be struck down as discriminatory merely because some persons have been excluded from its mischief whereas the others have been included. So far as the second limb of the argument is concerned, viz., that the action taken against the petitioners is mala fide, we are also unable to accept the argument for the simple reason that allegations of male fides must be clearly proved by the person who makes them. In Saddar Uddin and others v.
The Government of Azad. Jammu & F Kashmir PLD 1976 Azad J & K 1 it was held, "Mala fides" literally means "in bad faith". Action in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives whether to hurt the person again whom the action is taken or to benefit oneself." According to the Supreme Court of India in Jai Chand Lai v. State of West Bengal AIR 1967 SC 483, mala fide exercise of power the statutory power is exercised for purposes alien to those would mean that for which it is in law intended. In other words, the power conferred by the statute has been utilized for some indirect purpose not connected with the object of the statute or the *mischief it seeks to remedy. We would like to point out that nothing has been placed before this Court by the petitioner~ from which it can be inferred that the action taken against them was mala fide. Consequently, we are also unable to accept the second contention raised by the learned Counsel.
13. Mr. Azizullah Shaikh, learned counsel appearing for the petitioner in C.P. No.D-188/91 while referring to the provisions of section 12(l)(b) of the Aring Ordinance has contended that in any case, as is indicated by the language urged by the legislature therein, the Notificaition contemplated by the said provisions can only extend to one province or a part thereof but it cannot be issued in respect of the whole of Pakistan. No doubt, the language used by the legislature in section 12(l)(b), clearly indicates that a Notification referred to therein can be issued in respect of a particular province but if it can be issued in respect of one province, it can be issued in respect of all the provinces. The impugned Notification which covers all the provinces of Pakistan, therefore, in our opinion, does not suffer from any legal infirmity. The mere fact- that the Notifications were not issued separately for each of the four provinces in no way renders the impugned Notification illegal or violative of the provisions of section 12(l)(b) of the said Ordinance.
The. Argument, therefore, in our opinion, has no force.
14. It now remains to be considered whether the action taken by the respondent is justified under the circumstances of the case. The contention that the licences were granted indiscriminately without verification of the antecedents of the persons applying for the same if supported by existence of substantial material would be valid if the authority which issued the licences and the authority cancelling the same were different. In the present case, it was the respondent Government itself which issued licences in favour of the petitioners. And a large number of other persons and again it is the same Government which has cancelled such licences by the impugned Notifications. It has been pointed out in the counter-affidavit filed on behalf of the respondent that during the period between 2-12-1988 and issuance of the impugned Notification, consisting of about 20 months, about 75,000 licences were issued by the Federal Government including 8,350 which were issued in respect of automatic weapons and arms with prohibited bore. It has been further contended that such licences were issued ignoring all normal procedure. It is -indeed very strange that the blame has been placed by the respondent Government upon itself for issuing such a large number of arms licences in the manner as stated in the counter-affidavit filed on its behalf. If the cases had been properly scrutinized by the respondent Government before issuance of a licence to persons desiring the same, the necessity to cancel all such licences by a single Notification, as has been issued in the present case, would not have arisen. It is, therefore, clear that the petitioners have suffered on account of the lapses committed by the respondent Government itself. However, as per the own admission of the respondent in the counter-affidavits filed on its behalf, all such licences issued during the said period have not been cancelled by the authorities empowered to cancel the- same but only such licences have been cancelled by the respondent Government which had been issued for automatic weapons or weapons with prohibited bore. In fact, the figures supplied by the respondent show that the number of such licences is comparatively much smaller than the other number. In our opinion, vigilance, should have been exercised by the respondent Government at the time of issuance of the licences to such persons but the action now taken by the Government against the petitioners appears to be highly unreasonable. According to the petitioners, such weapons were purchased by them respectively for their own security and safety. It has not been alleged on behalf of the respondent that the licences were issued to the petitioners without verification of their antecedents. The mere fact that, as vaguely contended. Some licences had been so issued does not necessarily lead to an inference that the petitioners had also been issued licences in the same manner. The result of the impugned notification now would be that the petitioners would be deprived of their weapons which have been purchased for value. Although it was recommended by the judgments respectively given by the Lahore High Court and the High Court of Balochistan that suitable compensation be awarded to the petitioners affected by the notification but ostensibly no such action has so far been taken by the respondent. No doubt, the Government is empowered under section 12(l)(b) of the Arms Ordinance to cancel or suspend all licences issued throughout the province or any part thereof by a general Notification in he Official Gazette, but the mere fact that such power can be exercised under the law by the respondent Government would not necessarily mean thataction is to be sustained under all circumstances. The Courts would still be empowered to examine whether the action taken is arbitrary or unreasonable or whether the same is discriminatory or mala fide or suffers from any other such infirmity. In the present case, no doubt, we have declined to strike down the impugned action on the ground that it does not ostensibly appear to be discriminatory, mala fide or that the same can be sustained under the provisions of section 12(l)(b) of the Arms Ordinance, but nevertheless we find that the action taken against the petitioners is highly unjust, unreasonable and arbitrary. The respondent Government cannot be permitted to take advantage of its own wrong. When the licence was granted by the respondent in favour of the petitioners, the same entitled them to keep weapons with prohibited bore. The petitioners who have purchased weapons spending a substantial amount of money cannot be deprived of the same with one stroke in such an arbitrary manner particularly when the blame is placed by the respondent upon itself for issuing licences in such manner. The mere fact that licences were issued to some of the persons without verification of their antecedents or without observance of the normal procedure provided under the law can hardly provide justification to the same authority to cancel licences granted to others after due observance of procedure as provided under the law. No doubt, we are not oblivious of the fact that similar petitions filed before the Lahore High Court and the High Court of Balochistan have been dismissed and the action taken by the Federal Government was upheld, but with utmost respect, we would like to point out that if the Government is permitted to recall its orders in t~e manner the same has been done in the present case, there would be no sanctity attached to the orders of the Government. It is pertinent to point out that in another case reported in 1991 P.Cr.LJ 32 wherein the same Notification was also challenged before another learned Judge of the Lahore High Court, the action taken by the respondent has been struck down as without lawful authority, although on different grounds.
15 The upshot of the discussion is that these petitions are allowed and the action taken by the respondent Government is held to be without lawful authority and of no legal effect.
16. We would, however, like to clarify that the Government would be at liberty to take action in individual cases after observing due formalities of law.
M.BA./A-1218/K