2010 Y L R 1044
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
Sardar AKHTAR JAN MENGAL ---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior Islamabad
and another ---Respondents
Constitutional Petition No.282 of 2006, decided on 24th December, 2009.
(a) West Pakistan Arms Ordinance (XX of 1965) ---
----S.12(i)(a) --- Constitution of Pakistan (1973), Art.199 ---Constitutional petiti on--.
Cancellation of arms license ---Principles of natural justice ---Condemning unheard --
Effect ---Petitioner was aggrieved of the orders passed by authorities whereby arms
licenses issued to him by Federal Government and Provincial Government were
cancelle d---Plea raised by petitioner was that no opportunity of hearing was provided to
him before cancellation of his licenses ---Validity ---Order for cancellation of arms
licenses could be passed under S.12 (i) (a) of West Pakistan Arms Ordinance, 1965, only
after license -holder was given opportunity of showing cause against proposed
cancellation ---Neither any notice was issued to petitioner, nor any opportunity for hearing
had been provided to him while cancelling his arms licenses, therefore, orders passed by
authorities were not sustainable in the eyes of law ---Orders for cancellation of licenses
were vague and ambiguous in nature as neither any description of single license had been
mentioned therein, nor any cogent reason was assigned ---High Court in exercise of
Constitutional jurisdiction set aside orders passed by authorities and all licenses of
petitioner cancelled by authorities were restored ---Petition was allowed in circumstances.
1970 PCr.LJ 647, PLD 1981 Lah. 386 and 2001 MLD 94 rel.
(b) West Pak istan Arms Ordinance (XX of 1965) ---
----S.12(2) ---Constitution of Pakistan (1973), Art.199 ---Constitutional petition ---
Maintainability ---Appeal, right of ---Illegal order ---Petitioner assailed orders for
cancellation of licenses before High Court in exer cise of Constitutional jurisdiction ---Plea
raised by authorities was that petitioner had right of appeal available to him against the
order of cancellation of licenses, therefore, Constitutional petition was not maintainable --
-Validity ---Though appeal agai nst order for cancellation of licenses had been provided
but as the order was not only without jurisdiction but also was of no lawful authority,
petition was maintainable.
Muhammad Wassay Tareen for Petitioner.
Ch. Mumtaz Yousaf, Standing Counsel and Naseer Ahmed Bangulzai, Asstt. A. -G. for
Respondents.
Date of hearing: 14th December, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---This petition has been presented against the
order dated 5 -4-2006 passed by Joint Secretary, Government of Pakistan, M inistry of
Interior, which is reproduced as under: -
"It has been reported that Sardar Akhtar Mangil is guilty of abduction of persons
belonging to law enforcing agency, manhandling and illegal confinement at his
residence House No.29/3, Khayaban -e-Shamsh ir, St. No.31, Phase -V, Defence
Housing Authority, Karachi.
2. Ministry of Interior, Government of Pakistan has decided that all Arm Licenses
issued to Sardar Akhtar Mangil by the Federal Government and other Provinces
are hereby cancelled on the basis o f gross violation of law."
In view of above order, arms licenses issued to petitioner by Federal as well as Provincial
Governments were cancelled. Copies of the orders were circulated to respective
Provincial Home Secretaries, on the basis of said order, Government of Balochistan,
Home and Tribal Affairs (Arms Section), through its Secretary, has ordered cancellation
of arms licenses granted to the petitioner vide order dated 5 -4-2006, hence this petition.
The Federal and Provincial Governments have fil ed their para -wise comments, raising
legal objection regarding maintainability of petition. On merits, it is mainly contended
that arms licenses of petitioner were cancelled for the reasons that he is involved and
nominated in the criminal cases.
2. Lear ned counsel for petitioner has submitted that the orders in question are illegal and
unlawful, as the petitioner has been condemned unheard. Similarly, no reasons for
cancellation of the licenses have been mentioned and above all, the orders in question ar e
without jurisdiction.
3. On the other hand, Learned Standing Counsel, as well as, Assistant Advocate -General
have strongly opposed the contention of petitioner's counsel and raised objection that the
petition is not maintainable. They further contended that due to criminal activities, arms
licenses of petitioner were cancelled.
We have considered the arguments of both the learned parties' counsel and have gone
through the record of the case. It reveals that the licenses have been granted to the
petiti oner by a competent authority, therefore, right has been created in his favour. The
impugned orders are general in nature, which simply says that all the licenses issued to
petitioner by the Federal Government and Provinces are cancelled on the basis of gr oss
violation of law. It is important to mention here that the order has been passed by Joint
Secretary, Ministry of Interior, Government of Pakistan, but it has not been mentioned
that he was also issuing authority or just subordinate to the issuing autho rity of the
licenses.
It is settled principle of law that arms licenses can be cancelled or suspended under
section 12 of the West Pakistan Arms Ordinance 1965, which is reproduced as under: -
"12. Cancellation and suspension of licences .---(1) Any lice nce 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 Co -ordination Officer 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, or
authority deems it necessary for the security of the public peace to c ancel or
suspend such licence; or
(b) Be 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 suspen d all or
any licenses 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 o fficial superior to the authority making the order,
within sixty days of the receipt by him of a copy of the orders, 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 or der."
The above provision of law clearly stipulates and specifies the authority that who could
cancel or suspend the licenses. The orders impugned do not show, as to whether, the
person, who is cancelling the licenses, had the authority to do so. During the arguments,
when the learned Standing Counsel was asked as to show the authority of the person
concerned, he had failed to satisfy the Court or show his authority. Thus, in such view of
the matter, it is proved that the licenses of petitioner have been cancelled by a person
having no authority to do so under the law, therefore, the orders impugned are without
jurisdiction.
Apart from above, it is also note -worthy that the impugned order passed by the Joint
Secretary does not specify the description of particular license issued by Federal
Government, however, on his direction, all the licenses of petitioner, which were issued
by Provincial Government, were cancelled. Again, question arises, as to whether, he had
the authority to interfere in the jurisdic tion of provincial authority, who has lawfully
granted arms licenses to the petitioner. Admittedly, he has no jurisdiction to cancel the
licenses issued by the competent authority of the Provincial Government. It is strange to
note here that the provincial government without consulting the relevant provision of law
has blindly followed the directions of Joint Secretary of Federal Government and has
followed the order by cancelling the arms licenses issued to the petitioner.
After going through the impugne d order dated 5 -4-2006, passed by the Secretary, Home
and Tribunal Affairs Department, Government of Balochistan, it reveals that his intention
was never to cancel the licenses in question, however, they have been forced by the
Federal Government to do so, as such, the said order is also void and has no force at all.
Without prejudice to the above, even otherwise, procedure provided under section 12 of
the Ordinance is that holder of arms license, which was validly issued to him, should be
given prior sho w-cause notice for cancellation of the same.
Keeping in view the provision of law, order for cancellation of arms licenses can be
passed under section 12(i)(a) of West Pakistan Arms Ordinance, 1965, only after a
license -holder was given an opportunity of showing cause against proposed cancellation.
Since no notice has been issued to the petitioner, nor any opportunity for hearing was
provided to him while cancelling his arms licenses, therefore, the order in such a situation
is not sustainable in the eyes of law. Furthermore, the orders impugned are vague and
ambiguous in nature as neither any description of single license has been mentioned
therein, nor any cogent reason has been assigned. However, it has been mentioned in the
order that the petitioner is guilty of abduction of persons belonging to law enforcing
agencies, man -handling and illegal confinement at his residence. The respondents have
failed to give any detail in respect of any F.I.R. registered against him in respect of any
alleged act. On the other hand, learned counsel for petitioner has submitted that neither
any such case is pending against the petitioner, nor he has been convicted in any case.
The contention of learned counsel for petitioner has not been controverted by respondents
and the y have no answers to the queries in this behalf. Instant petition is pending since
May 2006 and the respondents have filed their para -wise comments, but not a single
document has been annexed with their reply, similarly, till today, no copy of F.I.R. has
been placed on record in proof of their claim, hence, it is held that the allegation in the
impugned order is not only vague, but is baseless, as well.
As far as contention of learned counsel for respondents is concerned that appeal lies
against cancellat ion of arms licenses, the same has no force at all, because had the
competent authority passed order for cancellation of licenses, then, keeping in view the
provisions of section 12 of the Ordinance, of course, appeal has been provided, but if the
order is not only without jurisdiction, but also is of no lawful authority, then writ is quite
competent. In present case, as discussed above that the orders impugned of Federal, as
well as, Provincial Government are without jurisdiction and void, therefore, prese nt writ
petition is competent.
Reliance has been placed on judgments reported in 1970 PCr.LJ 647, PLD 1981 Lah. 386
and 2001 MLD 94.
5. In view of what has been discussed hereinabove, we are inclined to accept the petition,
set aside the impugned order dated 5 -4-2006 passed by Joint Secretary, Ministry of
Interior, Government of Pakistan, as well as, order impugned dated 5 -4-2006 passed by
Secretary, Home and Tribal Affairs Department (Arms Section), Government of
Balochistan. Resultantly, all the licen ses of petitioner cancelled by the respondents
through above discussed orders are hereby restored.
M.A./19/Q Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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