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Petitioner: MUHAMMAD AYUB through Lawful Attorney and 37 others VS Respondent: FEDERATION OF JUDGMENT
Court Name: Sindh High Court Judge(s): Faisal Arab, Nadeem Akhtar Title:MUHAMMAD AYUB through Lawful Attorney and 37 others vs FEDERATION OF
JUDGMENT
Reported As: PLD 2012 Sindh 505 Result: Petition allowed Judgment JUDGMENT NADEEM AKHTAR, J.---On 8-8-2011, the Interior Minister of Pakistan/respondent No,1 made a press statement at Karachi that all the arms licences issued by the Ministry of Interior in the form of booklets shall stand cancelled on 31-5-2011 and the licence holders shall have to get their licence booklets replaced by licenses in the form of cards. By an announcement made on 9-8-2011, the aforesaid date was extended till 30-9-2011. On 11-8-2011, a public notice was issued by the Ministry of Interior, Government of Pakistan, in all the leading newspapers notifying that all arms licences issued by the respondent No,1 in the form of booklets or computerized arms licences issued prior to 1-1-2011 shall become invalid after 30-11-2011, and that NADRA (respondent No,2) will issue computerized arms licences from all District level offices throughout Pakistan. Through the said public notice, all arms licence holders were advised to submit the documents mentioned therein before NADRA (respondent No,2). Thereafter on 28-8-2011, the respondent No,2 issued a public notice on the same lines as was issued by the respondent No,1 for replacement of previous arms licences/booklets. All the above mentioned press public notices, statements and announcements of the respondents have been impugned in this petition by the petitioners. 2. The case of the petitioners is that arms licences were issued to them by the Government of Pakistan, Interior Division, Islamabad (respondent No,1) in the form of booklets, which booklet; were issued in the form and format prescribed under the Pakistan Arms Ordinance, 1965, (THE ORDINANCE) and the Arms Rules, 1924, (THE RULES) made thereunder. All the necessary and important, terms and conditions for retaining an arms licence and for possessing weapons and ammunition are specifically mentioned in the said arms licence booklets. The petitioners are
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holding valid arms licences in the form of booklets with full description of their weapons, their bore/calibre/gauge, and the ammunition specified therein. 3. Syed M. Yahya, learned counsel for the petitioners, contended before us that the actions taken by the respondents through announcements made and public notices issued for replacing the existing arms licence from a. Booklet form to a computerized card are arbitrary, illegal and without jurisdiction. Learned counsel submitted that under section 11 of ,the Ordinance, the Government may make rules to determine the officers by whom, the form in which and the terms and conditions on and subject to which an arms licence is granted or renewed. It was further submitted by the learned counsel that such rules are to be notified by the Government in the official gazette under the said section 11. He then referred to Rule 33 of the Rules which provides that a licence for possession of arms and ammunition in reasonable quantities and for going armed for the purposes of sport, protection or display may be granted in Form XVI or in Form XVI-A by the District Co-ordination Officer or by any officer specially empowered by the Provincial Government in that behalf. After referring to the above mentioned Section, Rule and Forms, the learned counsel submitted that the impugned scherne/action has been initiated by respondent No,1 without amending the relevant provisions of the Rules, therefore, the prescribed form/format of an arms licence cannot be amended, altered or changed. He also contended that since the Rules have not been amended, notification thereof in the official gazette was also not issued by respondent No,1, which is a necessary requirement of section 11 of the Ordinance. He further submitted that respondent No,1 cannot delegate its powers or functions under the Ordinance and Rules to respondent No,2. It was also argued by the learned counsel that respondent No,2 has no power or authority either under the Ordinance and Rules or under the NADRA Ordinance, 2000, to issue arms licence. In the end, the learned counsel submitted that the impugned notices and announcement are violative of Articles 9, 14, 24, 35, 37 and 38 of the Constitution of Pakistan, 1973. 4. Learned counsel for the petitioners also contended that as per a report published in the daily 'Dawnon 17-8-2011, the Government of Sindh, under the directives of respondent No,1, is also contemplating similar action of cancelling all previous valid arms licence booklets issued for the Province of Sindh and then substituting the same by licences in the form of cards. 5. Syed M. Yahya, learned counsel for the petitioners, showed us copies of licence booklets of the petitioners, which have been filed with this, petition, and also placed before us specimens of the proposed card licences to be issued by respondent No,1 and the Government of Sindh. In addition to his above legal submissions, learned counsel for the petitioners argued that the new purported scheme is ill-conceived, impractical, illogical and arbitrary, and if implemented, the same shall cause extreme inconvenience, hardship and financial burden to licence holders inter alia for the following reasons:-- (a) As per the impugned notices and action, all arms licences issued by respondent No,1 in the form of booklets or computerized arms licences issued prior to 11-2011 were to become invalid on 30-11-2011. This would mean that the impugned action of the respondents is going to affect all the licences issued during the last 63 years, that is, from 14th August 1947, which idea is totally absurd. (b) As per the Rules, the present licence booklet has the provision for annual renewals as it provides validity period of one year ending on 31st of December each year with a grace period of one month for renewal. The proposed new card licence does not have any such provision as required under the Rules. (c) There is an obvious ambiguity in the validity period of the impugned card licence. The specimen of card licence shows that respondent No,2 intends to issue the card licence for a minimum period of five years without giving any option to the licence holder. This arbitrary exercise of discretion by the respondents would result into heavy financial burden upon licence holders who
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may wish to get their licences renewed on yearly basis which is not only their right under the Rules, but is the requirement under the Rules. (d) A weapon can be purchased only by a licence holder either from an authorized arms dealer or from another licence holder. In case a weapon is purchased from an arms dealer, the dealer makes an endorsement to this effect on the licence of the purchaser by affixing his stamp with date and the weapon purchased is entered on the licence of the purchaser by the dealer by specifically mentioning the identification number, make and model of the weapon. In case a weapon is purchased from any other licence holder, then the weapon is deleted from the licence of the seller and is entered at the same time on the licence of the purchaser by the dealer by affixing his stamp with date and particulars of the weapon. This exercise cannot be done privately by the seller and purchaser as the above endorsements are to be effected only through an authorized arms dealer. Same is the position when a licence holder wants to change his weapon, or his weapon is lost or stolen, in which case his previous weapon is deleted from his licence and the new weapon with relevant particulars is entered on his licence by the arms dealer. The present licence booklet provides more than sufficient space and pages for all the above mentioned endorsements which can be effected even on urgent basis without wastage of time and money. Whereas, the impugned card licence has no provision or space for such entries. Which implies that whenever a licence holder wishes to sell, purchase or change his weapon, he will be compelled to undergo through long process of applying to the respondents for a pew card licence and by paying heavy fee and charges every time. (e) Under the Ordinance and the Rules, every license booklet provides for a fixed yearly quota of ammunition. A licence holder is entitled to purchase ammunition only within such given quota, and that too only from authorized arms dealers. It is the discretion and choice of the license holder to purchase the entire quota in one go or at different times during one year/season. Every purchase of ammunition is also entered and recorded in the license booklet by the arms dealer by specifically mentioning the make and quantity of the same and by affixing his stamp and 'date. The impugned card licence has no provision or space to record purchase of ammunition, and as such it will, not be possible to maintain such record. (f) The present licence booklet is printed in high security in the press of the Security Printing Corporation of Pakistan, having special security features which are not available in other or ordinary presses. There is a very high risk of forgery, fabrication and manipulation in the impugned card licence. 6. In reply to the submissions made on behalf of the petitioners, learned Deputy Attorney General appearing for respondent No,1 submitted that under Section 11 of the Ordinance, the respondent No,1 assigned the task of computerization of arms licences issued by the Ministry of Interior to respondent No,2 (NADRA) through Notification dated 14-10-2011. He contended that petitionersobjection to this effect has no force in view of the said Notification. It is important to note here that no other submission was made before us on behalf of the respondent No,1 to oppose this petition, and it was also not disputed by respondent No,1 that the Ordinance, the Rules framed thereunder and Forms XVI and XVI-A contained in the Rules are still in the field and the same have not been amended, changed or altered. However in the comments filed "on behalf of the respondent No,1, maintainability of this petition has been challenged on the grounds that this Courthas no jurisdiction to entertain this petition which ought to have been filed before the Islamabad High Court, and that the purported action of replacement of arms licences from booklets to cards has been initiated by respondent No, 1 in view of the judgment passed by the Hon'ble Supreme Court in Suo Motu Case No,18 of 2011 taken up at Karachi. 7. Mr. Zulfiqar Solangi, Law Officer of the respondent No,2 (NADRA). Defended the task of replacement of arms licences from, booklets to cards assigned to respondent No,2 by the
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respondent No,l. At the very outset he submitted that the impugned public notice dated 28-8-2011 was issued by respondent No,2 only in respect of arms licences issued by the Federal Government/respondent No,1 and not by Provincial Governments, which fact according to him is evident from the said public notice itself as it was specifically mentioned therein that This scheme is not applicable to the Arms Licences issued by Provincial Governments". The learned Deputy Attorney General appearing for respondent No,1 also agreed with this contention of the learned counsel for respondent No,2. No other submission was made before us on behalf of respondent No,2 to oppose this petition. Like respondent No,1, the respondent No,2 also not disputed that the Ordinance, the Rules framed thereunder and Forms XVI and XVI-A contained in the Rules are still in the field and the same have not been amended, changed or altered. However in the comments filed on behalf of respondent No,2, it was claimed that respondent No,2 has now been empowered by respondent No,1 to undertake the task of replacement of arms licences from booklets to cards, and that such purported action has been initiated in view of the judgment passed by the Hon'ble Supreme Court in Suo. Motu Case taken up at Karachi. 8. We have examined Section 11 of the Ordinance which clearly provides that "Government may, from time to time, by notification in the official gazette, make rules to determine the officers by whom the form in which and the terms and conditions on and subject to which any licence shall be granted, or renewed, " Under this Section, the Government may also make rules in order to fix inter alia the period for which licences shall continue in force, and the fee payable in respect of such licences. Rule 33 of the Rules made under the Ordinance provides that "a licence for the possession of arms and ammunition in reasonable quantities and for going armed for the purpose of sport, protection or display may be granted in Form XVI or Form XVI-A by District Coordination Officer or by any Officer specifically empowered . By the Provincial Government in that behalf " It is an admitted position that Section 11 of the Ordinance, Rule 33 of the Rules and Forms XVI and XVI-A contained therein have not been amended, altered or changed by the Government. Therefore, no deviation or changes can be made in any of the Forms of arms licences, including Forms XVI and XVI-A, prescribed by the Rules, especially when the Rules have admittedly not been amended by the Government and no such deviation or changes have been notified by the Government in official gazette as required under section 11 of the Ordinance. The importance of maintaining the Forms of arms. Licences in the present form prescribed by the Rules is because of the reason that the same provide not only sufficient space and pages for important and vital endorsements for entering, deleting and changing of weapons and for purchase of ammunition, but also contain all the relevant terms and conditions on which a licence is issued to a licence holder. In order to appreciate whether a licence holder should or should not be aware of such terms and conditions of his licence, we deem it necessary to reproduce below the arms licences issued in Forms XVI and XVI-A:-- "[FORM XVI] [(See Rule 33)] ARMS LICENCE No date Name and parentage of the licensee Photograph of Licensee Profession Address____ Police Station Tehsil "'District Name and parentage of the retainer Photograph of Retainer Profession_____________________ Address Police Station______ Tehsil___________ District ____
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Name and parentage of the retainer WEAPONS/WEAPON COVERED BY THIS LICENCE Shotgun Revolver Pistol Knife Stengun Sword Spear Sword-stick Note:--The issuing authority should initial in the box against the weapon covered by this licence. Description of Arms including calibre Quantity and description of ammunition that licensed retainer is entitled to possess Maximum to be possessed at a time - Maximum quantity to be purchased during the year Area within which the licence is valid Date on which licence expires (unless previously ceased to be in force under the proviso to sub- rule 42)_ _ _ _ _ Date on which licence or the arms or both shall be produced for inspection before the licensing authority (under proviso to sub-rule 42) RENEWAL OF ARMS LICENCE From To Signature of D.M./A.D.M./S.D.M./Resident Magistrate/Tehsildar/Mukhtiarkar
1. One time fee of Rs,1000/- for extending the validity to the whole of Pakistan of non-prohibited bole arms licence and Rs,2,000/- for extending the validity to the whole of Pakistan of a prohibited bore arms licence shall be charged. 2. An application for extending the licences to whole of Pakistan shall be made to the Deputy Commissioner concerned who may allow the same whereafter the applicant shall deposit the requisite fee in the State Bank of Pakistan, National Bank of Pakistan / Government Treasury in the Head of the Account No, "1300-Misc. Receipt 139-fees, Fines Forfeitures-Arms Licence Fee" within fifteen days from the date of receipt of the order of the sanction, failing which the application shall be deemed to have been rejected. CONDITIONS 1. This licence is granted subject to all the provisions of the West Pakistan Arms Ordinance, 1965 and of the Arms Rules .1924. 2. It covers only the person named, and the arms and ammunitions described therein and such retainers (if any) as may be entered in column 5. 3. The licence is valid to the extent specified in Mum 8, subject to the case of a licence having effect outside the Province in which it is granted or renewed subject to any restrictions which may be imposed by any general or special order of the Provincial Government. 4. The licensee or any retainer acting under this licence shall not go armed with any arms covered thereby otherwise than in good faith for the purpose of sports/ protection/ display; and save where he is specially authorised in this behalf by District Co-ordination Officer or an officer, he shall not take any such arms to a fair, religious procession or other public assemblage. 5. The licensee, at the time of purchasing arms or ammunition shall cause the following particulars to be endorsed upon his licence under the vendor's signature; namely (a) the name, description and residence of the period who takes delivery of the articles purchased ; (b) the nature and quantity of the articles purchased ; and (c) the date of purchase;
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and, if the arms or ammunition are purchased from any person other than a licensed dealer, shall also cause the particulars specified in clauses (b) and (c) to be furnished in writing to the authority who granted this licence within such period as may be prescribed for this purpose by such authority. No purchase of ammunition shall, however, be permitted except on a written certificate from the licensee certifying that with the amount proposed to be purchased the total quantity of ammunition in his possession will not exceed the maximum which lie is entitled to possess at any one time, or his total allowance for the year. 6. He shall not purchase ammunition of any kind in excess of the maximum which may, from time to time, be fixed by the Provincial Government. Such maximum may be prescribed both for the amount purchasable in a calendar year and for the amount that may be possessed at any one time. Lf, however, a licensee exhausts the total quantity ammunition purchasable in a year earlier than the close of the year, he may,. For good and sufficient reasons, be given a temporary increase in the total quantity purchasable at the discretion of the licensing authority. 7. He shall forthwith give information at the nearest Police Station of the loss or theft of any arms or ammunition covered by the licence. 8. He shall not possess Government arms and ammunition. Explanation - For the purpose of this Condition -- (a)"Government Arms" means a fire-arm or other weapon which is the property of the Government; and (b)"Government ammunition" means ammunition manufactured in any Government factory, or prepared for and supplied to Government. 9. Condition 8 may be cancelled by the authority granting the licence if empowered to do so by the Provincial Government and an endorsement added showing the Government arms and ammunition which the licensee is authorised to.Possess. 10: Where the licence is granted for the purpose of sport, the licensee or any retainer acting under the licence shall observe such close season as may be prescribed by the Provincial Government in respect of the game birds and animals hereinafter set forth below. 11. The licensee shall report any change of his permanent residence either to the authority who granted him the licence, or in the event of the licence having been renewed by some other authority on a previous occasion of change of permanent residence, then to such authority. In case of any change of residence, whether permanent or temporary, he may, at his option, apply to the nearest licensing authority for the renewal of his licence, if it is necessary. 12. The authority granting or renewing the licence has the right to inquire at any time during the currency of the licence whether the weapon or weapons for which it has been granted is or are still in the possession of the licensee, and to require its or their production for the purpose of such inquiry. Note - (1) Any breach of the conditions of this licence is punishable with imprisonment for a term which may extend to six months or with fine which may extend to. Rs,500 or with both. (2) Licensees are warned that in case they sell any arms, ammunition and military stores covered by the licences possessed by them to any person (other than a person exempted under section 27 of the West Pakistan Arms Ordinance) they are required to give notice forthwith of the sale together with particulars as to the name and address of the purchaser to the Magistrate of the District or the officer-in-charge of the nearest Police Station. Failure to give notice as required above is punishable with imprisonment for a term which may extend to three years, or with fine, or with both." "FORM XVI-A [See Rule 33]
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FREE OF ALL FEE Licence for the possession by a retainer of arms and ammunition and for going armed for the purpose of sport, protection display. TABLE No,1 Arms or ammunition that licensee is entitled to process Serial number of licence. Name, description and residence of person exempted under Schedule I, (1), nominating licensee. Name and residence of father of licenseeBrief description on of each weapon with detail, e.g. distinguishing marks register No. etc.Quantity and description on of each kind of ammunition.Extent of validity of licence, i.e. throughout Pakistan, Province of District. Date on which licence expires. CONDITIONS 1. This licence is granted subject to all provisions of West Pakistan Arms Ordinance, 1965, and of the Arms Rules, 1924. 2. It covers only the person named in column 3 of this licence and the arms and ammunitions described in columns 5 and 6. 3. This licence is valid to the extent 'specified in Column 7, subject to the case of a licence having effect outside the Province in which it is granted or renewed .To any restrictions which may .Be imposed by any general or special order of Provincial Government in respect of the territories administered by it or subject to its control. 4. This licence shall only be granted to a person nominated in that behalf and certified to be his own retainer by a person exempted under Article 1(a) of Sched. I to these rules; and it shall only be granted in respect of the arms and ammunition specified in this behalf by and being the property of such exempted person. 5. This licence nay be granted or renewed for any period not exceeding one year, provided that it shall expire on the date on which the person specified in column 2 of this licence ceases to be exempted under Article 1(a) of Sched. I to these rules, where such date is prior to the date on which it would ordinarily expire. 6. The licensee shall not go armed with any arms covered by this licence otherwise than in good faith for the purpose of sport, protection, display; and save where he is specially authorised in this behalf, in any place, by the [District Coordination Officer] or an [Officer] he shall not take any such arms to a fair, religious procession or other public assemblage. 7. He shall forthwith give information at the nearest Police Station of the loss or theft of any arms covered by the licence. 8. He shall not possess Government arms and ammunition. Explanation.-- For the purpose of this condition--- (a) "Government Arms" means a fire-arm or other weapon, which is the property of the Government; and (b) "Government ammunition" means ammunition manufactured in any Government factory, or prepared for and supplied to Government. 9. Condition 8 may be cancelled by the authority granting the licence if empowered to do so by the Provincial Government, and an endorsement added showing the Government arms and ammunition which the-licensee is authorized to possess. 10. Where the licence is granted for the purpose of sport, the licensee shall observe such close season as may be prescribed by the Provincial Government in rbspect of the game-birds and
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animals hereinafter set forth below. The licensee shall report any change of his permanent residence to the authority who granted him the licence, or in the event of the licence having been renewed by soine other authority on previous occasion of change of permanent residence, then to such authority, in case of any change whether permanent or temporary, he may, at his option, apply to the nearest licensing authority for renewal of this licence, should it be necessary.. 4. The authority granting or renewing the licence has the right to inquire at any time during the currency of the licence whether the weapon or weapons for which it has been granted is or are still in the possession of the licensee, and to require its or their protection for the purposes of such inquiry. Note-- (1) Any…
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