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Petitioner: ABU BAKAR ZARDARI VS Respondent: GOVERNMENT OF PAKISTAN
1992 M L D 2380
1992 M L D 2380
[Karachi]
Before Mamoon Kazi and Salahuddin Mirza, JJ
ABU BAKAR ZARDARI, Advocate and others‑‑‑Petitioners
versus
GOVERNMENT OF PAKISTAN‑‑‑Respondent
Const. Petitions Nos.D‑830 of 1990 with Constitutional Petitions Nos. 1440 1445, 1448‑1450, 827, 830, 837, 844, 857, 861, 863, 864, 870, 871, 878, 879, 880‑88,4, 842, 841, 845, 994, 1007, 1012, 1095, 1127, 1131, 1495 of 1990, 50‑54 of 1991, 818 of 1980, 1369, 1081 of 1990, 750, 890, 188, 611 of 1991 and 59 of 1992, decided on 17th March, 1992.
(a) West Pakistan Arms Ordinance (XX of 1965)‑‑‑
‑‑‑‑S.12‑‑‑Suspension or cancellation of licence‑‑‑Procedure
(b) Maxim
‑‑Audi altram partem‑‑Application of maxim‑‑‑Exception.
The rule of justice embodied in the maxim audi altram partem, 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.
(c) West Pakistan Arms Ordinance (XX of 1965)‑‑‑
‑‑‑‑S.12(1)(b)‑‑‑Cancellation of licences by Government by a notification‑‑ Government which include Federal as well as Provincial Governments can cancel or suspend all or any licences throughout the Province or any part thereof by a general notification‑‑‑Requirement of notice to licensees has been intended to be excluded from S. 12 (1)(b) if there is a large number of cases which would be affected by the notification.
Section 12(1)(b), West Pakistan Arms Ordinance, 1965 clearly authorises the "Government", which expression would include both the Federal as well as the Provincial Governments, to cancel or suspend all or any licences throughout the province or any part thereof by a general notification. Said 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
Pakistan v. S. Hussain Ali Shah PLD 1960 SC 310; Ch. Ghulam Ali v. Commissioner, Lahore Division, Lahore PLD 1981 Lah. 368; Tanweer Ahmad Khan v. District Magistrate, Sanghar PLD 1979 Kar. 732; Muhammad Farooq Asghar v. Federation of Pakistan PLD 1991 Lah. 321; Haji Mir Ghulam Mustafa v. Government of Pakistan PLD 1991 Quetta 57; Saiyyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and another PLD 1964 SC 673; Bihar School Examination Board v. Subhas Chandra Sinha and others AIR 1970 SC 1269; Madarf Mohan Varma v. University of Calcutta and others AIR 1979 Cal. 67 and Rajiv Rattna Shukla v. University of Allahabad AIR 1987 All. 208 ref.
Haji Mir Ghulam Mustafa PLD 1991 Quetta 57 partly dissented from.
1991 PCr.LJ 32 mentioned.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.25‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.12(1)(b)‑‑ Cancellation of licences of arms by Government through Notification under S.12(1)(b) of the West Pakistan Arms Ordinance, 1965‑‑‑"Equal protection of law" occurring in Article 25, Constitution of Pakistan (1973); 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‑= Provision of Art. 25, Constitution (1973),. guarantees equality and not identity of rights.
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 was clear from the impugned notification, as well as the stand taken by the Government in the counter affidavits respectively filed on its behalf clearly appeared to be to safeguard "public interest" as according to it, licences in respect of prohibited arms had been discriminately issued to a large number of persons during the period in question. No doubt, the Notification only covered period between 2‑12‑1958 and 22‑8‑1990, on which date the Notification had been issued, but the contention of the Government clearly being that it was only during the laid period that licences for prohibited fire‑arms had been indiscriminately issued, the action could not be struck down on the ground of discrimination for the said reason alone as there clearly appeared to be a nexus between the classification made by the Government in the Notification and the object which it ostensibly tried to achieve. The impugned Notification was not discriminatory even from any other angle as classification by exclusion of certain persons from the Notification was permissible under the law on the same principle.
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 could be shown that the classification was reasonable and the distinction drawn by the authority taking action could be justified under the circumstances, the action could not be struck down as discriminatory merely, because some persons had been excluded from its mischief whereas the others had been included.
Brig. (Rctd.) F.B. Ali v. The State PLD 1975 SC 506 fol.
(e) Mala fides‑‑‑
‑‑‑‑ Mala fide exercise of powers‑‑‑Meaning.
Saddar Uddin and others v. The Government of Azad Jammu & Kashmir PLD 197(, Azad J&K I; .Jai ('hand Lai v. State of West Bengal AIR 1967 SC 483 ref.
(f) West Pakistan Arms Ordinance (XX of 1960‑‑‑‑
‑‑‑‑S.12(1)(b)‑‑‑Cancellation of licences by ( government by a Notification under S.12(1)(h)‑‑‑"Notification" referred to in S. 12(I)(b) which can be issued in respect of a particular Province can also be issued for all the Provinces‑‑ Mere fact that Notifications were not issue separately for each Province of Pakistan would not render the said Notification illegal or violative of S.12(1)(b) of the Ordinance.
No doubt, the language used by the legislature in section 12(1)(b), West Pakistan. Arms Ordinance, 1')65 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, 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(1)(b) of the said Ordinance.
(g) Constitution of Pakistan (1973)‑‑‑‑
‑‑‑‑Art. 199‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.‑12(1)(b)‑‑ Cancellation of licences by Government by a Notification under S.12(1)(b) of the West Pakistan Arms Ordinance, 1965‑‑‑High Court would be empowered to examine whether the action taken was arbitrary or unreasonable or whether the same was discriminatory or mala fide or suffered from any other such infirmity.
No doubt, the Government is empowered under section 12(1)(b) of the Arms Ordinance to cancel or suspend all licences issued throughout the Province or any part thereof by a general Notification in the Official. Gazette, but the mere fact that such power can be exercised under the law by the Government would not necessarily mean that such action was to be sustained under all circumstances. The Courts would still be empowered to examine whether the action taken was arbitrary or unreasonable or whether the same was discriminatory or mala fide or suffered from any other such infirmity. In the present case, no doubt, High Court declined to strike down the impugned action on the ground that it did not ostensibly appear to be discriminatory, mala fide or that the same could be sustained under the provisions of section 12(1)(b) of the Arms Ordinance, but nevertheless it observed that the action taken against the licensees was highly unjust, unreasonable and arbitrary. The Government could not be permitted to take advantage of its own wrong. When the licence was granted in favour of the licensees the same entitled them to keep weapons with prohibited bore. The licensees who had purchased weapons spending a substantial amount of money could not be deprived of the same with one stroke in such an arbitrary manner particularly when the blame was placed by the Government 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 could hardly provide justification to the same authority to cancel licences granted to others after due observance of procedure as provided under the law.
Constitutional petitions were allowed and the action taken by the Government was held to be without lawful authority and of no legal effect.
1991 PCr.LJ 32 mentioned.
Syed Nasiruddin, Azizullah Shaikh, M.M. Pirzada, Rasheed A. Akhund, Rasheed Rizvi, Talmiz Burney, Khawaja Naveed Ahmed, Saeeduddin, Abdul Aziz A. Shaikh and Imam Ali Memon for Petitioners.
Aftab Ahmad Akhund, A.‑G. and Shahudul Haq for Respondent.
Dates of hearing: 26th and 27th February, 1992.
JUDGMENT
MAMOON KAZI, J.‑‑‑The petitioners in all these petitions are persons who been aggrieved by the Notification issued by the Ministry of Interior and Narcotics Control (Interior Division), Government of Pakistan No.S.R.O. 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 Ist 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 partem which is embedded 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 is made applicable, and
(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(1)(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 indiscriminately, without any attempt to verify the antecedents of the applicants of 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 licences 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. Rashded Rizvi, Mr. Talmiz Burney, Mr. Khawaja Naveed Ahmed and Mr. Saeeduddin. The arguments on behalf of the respondent were addressed by Mr. Aftab Ahmed Akhund, learned Advocate‑General Sindh and Mr. S. Shahudul Haque, learned Counsel for the Federal Government.
6. The Notification around which the‑ entire controversy revolves is as follows:‑
"PART II
Statutory Notifications (S.R.O.)
Government of Pakistan
MINISTRY OF INTERIOR AND NARCOTICS CONTROL
(Interior Division)
NOTIFICATION
Islamabad the 22nd August, 1990
S.R.O. 870(1)/90.‑‑‑WHEREAS it has come to the notice of. the Federal Government that, after the 1st 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 Ist 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.II) 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.
(N.7/8/90‑Arms.lI) 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 cancellation amounts to a penalty which cannot be imposed without objective assessment 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 Lah. 368, and Tanweer Ahmad Khan v. District Magistrate, Sanghar PLD 1979 Kar. 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 fulfilled, 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, 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. Ghulam 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 assessment 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 subjection (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.
(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 ,fudge 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 licence throughout the Province or any part thereof.
(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 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) of any District Magistrate within the local limits of whose jurisdiction the holder of such licence may be.
Section 12(1)(a) further shows that such action can be taken by the 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 (1)(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 ah 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 the proposed cancellation or suspension, no such condition would be applicable if cancellation or suspension of the licence is made under section 12(1)(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. Federation of Pakistan PLD 1991 Lah. 321 and Haji Mir Ghulam Mustafa 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 Balochistan High Court in Haji Mir Ghulam Mustafa's case was repelled on the grounds that no action of the Federal Government of controlling a situation of emergency could be struck down as without lawful authority as would appear from the following 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 of power to cancel, suspend arms licences or to disarm inhabitants of particular area or group of persons 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 lapse 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 Saiyyid 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 partem 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 back ground 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 sections 12(1)(a) and 12(1)(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 Judged 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 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. 1t is added that hearing is to be provided where necessary. It is submitted that if the action is taken tinder 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…
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