The Constitution of Pakistan, 1973 Developed by Zain Sheikh

MUHAMMAD FAROOQ ASGHAR

V/S

FEDERATION OF PAKISTAN

Per  Ihsan-ul-Haq Chaudhry, J.

(a) Constitution of Pakistan (1973), Article  199.
r/w West Pakistan Arms Ordinance (XX of 1965)—-S. 12(1)(b)—-

It clear from the cases referred by the learned Deputy Attorney General that in case of action against a large number of citizens the principles of natural justice do not come into play for the reason it is not possible to give hearing to each and every person.  The present case is on possible to give hearing  to each and every person.  The present case is on stronger and better footing than the case of Sikander Sadiq and others where the examination as a whole was cancelled because of mass cheating and malpractice’s.  In those case at least the complete particulars of the candidates taking the examination were available with the authorities but in the present case even the particulars of the licensees were not available and none else but the licensees are responsible for this mess.  It was their duty to submit application forms for grant of Arms’ licence complete in every respect.  It is held that neither there is a provision in section 12 (1) (b) for granting hearing before ordering cancellation nor it was possible.

The second submission on behalf of petitioners was that the order should have been based on objective satisfaction.  The respondents have referred to the type of the orders bidding issuance of the licences, the state of the applications, lack of authenticity and verification by the District and Police Authorities. It is proved that the licences were issued recklessly as according to the learned Deputy Attorney General in all, according to the data available, 12, 505 licences were sanctioned while 8,350 were issued.  The argument was that even the persons who were not interested and did not make application still the sanction was granted.   Therefore, the Government after fully analyzing the situation decided to cancel the licences.  Even otherwise if the particulars of the licensees are not available then there was no way out for the Government except to cancel the whole lot.[p. 327]B

It is clear from the portion underlined that the Government has a free hand and unfettered powers in this behalf, therefore, the action is fully covered by the law and no exception can be taken to the same. The argument noted at No.6 is off-shoot of the main argument, therefore, dealt here along with the same.  The arguments was that Government means Provincial Government. In this behalf, the learned counsel has referred to definition of Government as given in section 3(d).[p. 328]D

(b) Constitution of Pakistan (1973), Article  159.

The argument is that care-taker Government was appointed only to hold elections and conduct day to day business.  I find no force in the argument in view of the Full Bench decision of this Court in Kh. Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1991 Lah. 78).  The relevant portion reads as under:-

“159. So far as the powers of  powers of the Prime Minister/caretaker Prime Minster as held of the caretaker Cabinet are concerned, I could not find any material difference between the two except that the tenure of the caretaker Prime Minister is to last till induction into office of a regularly elected Prime Minister by the new Assembly after the election.  I am strengthened in this view by the fact that no separate oath of office has been prescribed for the caretaker Prime Minister while assuming office.

The is also interesting to note that the words “caretaker Prime Minister” as such do not appear anywhere in the Constitution.[p. 329]E

(c) Constitution of Pakistan (1973), Article  24.
r/w West Pakistan Arms Ordinance (XX of 1965), S.12(1)(b)—-

Before parting with the judgment would like to point out that the petitioner and others purchased the arms after obtaining valid permission from the Federal Government to hold these arms and now the Federal Government by notification has cancelled the licences.  The action of the Government amounts to compulsory acquisition of the weapons of a given category and according to Article 24 no one can be deprived of the property without being paid compensation, therefore, it is expected that the Government shall expeditiously decide the mode of payment of compensation/price of the Arms and Ammunition deposited by the licences.  The learned Deputy Attorney General submitted that the Government is conscious of its obligations and is already framing  a scheme in this behalf.

The result is that there is no force in this petition.  The same is dismissed.[p.329,330]F

Advocate for Petitioner.
Zafar Iqbal Bajwa

Advocate for Respondents
Maqbool Illahi Malik, A.G.,
Farooq Bedar and Rana Muhammad
Arshad, Additional Advocates-General

Faqir Muhammad Kokhar, Deputy Attorney General
for the Federation Government.

Dates of hearing : 16th, 17th, 19th and 24th February and
5th March, 1991.