Full Text of Balochistan High Court Judgment on Quota-Based Issuance Of Bore Licenses

28.06.2010.

Mr. Rauf Atta, Standing Counsel.

Mr. Abdul Aziz Khilji, Addl: A.G.

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1.       On 29.3.2010 in C.P. No.188/2010, the following order was passed:-

“During the course of hearing, it transpired that Mr. Iftikhar-ul-Haq, Advocate Supreme Court was abducted by persons wielding Kalashnikovs. Accordingly, we enquired from learned Advocate General as to the authority which issues licenses of Kalashnikovs and other prohibited bore weapons, the criteria employed and whether the Provincial Government’s satisfaction with regard to the person to whom the license is issued is obtained before issuance of license. Learned A.G. states that the licenses are issued by the Federal Government and the Provincial Government has no concern with the matter. He further states that the Provincial Government is also not contacted to verify the particulars of the persons in whose favour the license is being issued nor, to the best of his knowledge, is there any prescribed criteria with regard to issuance of licenses. Issue notice to Attorney General of Pakistan and Ministry of Interior through Secretary Interior to provide the following information:-

(1) The month wise number of prohibited bore weapons issued in the Province of Balochistan for the last five years.

(2) The criteria, if any, laid down for issuance of the aforesaid weapons.

(3) Whether there is any quota prescribed for issuance of prohibited bore weapons, and if so the legal basis thereof.

(4) What is the source from which the prohibited bore weapons after issuance of license are purchased and details in this regard.”

2.                That the Ministry of Interior, Government of Pakistan submitted the following reply to the aforesaid four queries:-

(1) Monthwise details are not available. However, 2918 PB arms licences have been issued to the applicants of Balochistan Province for the last five years.

(2) The prohibited bore licences were issued with the approval of the Prime Minister. Later on, the Prime Minister was pleased to direct that Minister of State for Interior would decide and approve such cases w.e.f. 17.04.2009 (Annex-I). The Prime Minister was also pleased to approve the recommendations of the Standing Committee on Interior that a uniform police of issuance of Arms licences on the recommendation of Members of the Parliament shall be observed and the following maximum annual quota w.e.f. 1^st September, 2009:-

a)	MNAs/ Senators	25 each
b)	MPAs	05 each

All other categories for issuance of PB Arms licences shall apply to the Prime Minister, which shall be decided on merit on case to case basis (Annex-II)

(3)      The Prime Minster was pleased to fix the quota for issuance of PB Arms licences to the Members of the Parliament w.e.f. 1^st September, 2009, which is given at 2 above.

(4)      Prohibited bore weapons are either purchased from POF Wah or gifted by the President, Prime Minster and Maliks of the Tribal agencies.

3.       Subsequently vide order dated 13.4.2010 petitions dealing with target killings that is C.P. No.102/2010 and 517/09 were ordered to be fixed alongwith C.P. No.188/2010.  On  8.6.2010 inter alia the following order was passed:-

“We do not consider that the comments submitted by the Deputy Secretary Ministry of Interior are sufficient reply to the queries posed in order dated 29.03.2010 and provide last and final opportunity to Ministry of Interior/ Attorney General of Pakistan/ D.A.G. to attend to the same.”“

“The Provincial Government is directed to submit the manner in which non-prohibited bore weapons licenses are issued and whether an application or form is required to be submitted and the manner in which it is verified, if at all.”

“Both the Federal and Provincial Governments are also required to state whether in respect of a license issued by the Federal Government any prior approval is taken from the Provincial Government and whether after issuance of such license the Provincial Government is informed.”

“M/s. Shakil Ahmed, Habib Jalib and Nadir Chalgari Advocates state that ‘Rahdaries’ are issued for transporting guns which have no legal basis in law. Both the Federal and Provincial Government are also put on notice as to whether ‘Rahdaries’ are issued and if so under which legal provision.”

Unfortunately the requisite information was not provided and Mr. Rauf Atta Standing Counsel again sought time. However, in view of the seriousness of the matter and the fact that the repeated opportunities had already been granted the request for adjournment was declined and we proceeded to hear the matter.

4.       That vide West Pakistan Arms (Amendment) Act, 1974, the following new Section 11-A was inserted in the Pakistan Arms Ordinance, 1965:-

“11-A.       Power of the Federal Government.—(1) the Federal Government may, by notification in the office Gazette, specify the description, caliber or bore of arms and ammunition which are to be prohibited bores for the purpose of this ordinance.

(2) No license for the arms and ammunition notified under sub-section (1) shall be issued except by the Federal Government.

(3) The Federal Government shall have the power to issue licenses for non-prohibited bore weapons  valid for the whole or any part of Pakistan.

(4) The Provincial Government shall have the power to issue licenses for non-prohibited weapons only which power shall be exercised by the said Government subject to section 11.”

It may be mentioned that in a number of books the word ‘except’ has been left out from sub-section 2 of Section 11-A. To resolve the discrepancy the text of the said amendment as appearing in PLD 1974 Central Statutes page 260 was taken as correct.

5.       The reply submitted by the Ministry of Interior referred to a number of documents. In this regard minutes of the meeting held under the Chairman, Standing Committee on Interior were also attached and we have been informed that paragraph 5 and 6 thereof have been approved, as under:-

“PRIME MINSTER’S SECRETARIAT

ISLAMABAD.

Subject:- BAN ON ISSUANCE OF PB ARMS LICENSES- REPORT OF THE STANDING COMMITTEE ON INTERIOR.

The Prime Minister has been pleased to approve the recommendations contained in Paras 5-6 of the Report of the Standing Committee on  Interior, with the modification that a uniform policy of issuance of Arms licenses to the members of the Parliament shall be observed with the following maximum annual quota:-

Prohibited Bore (PB)

a) MNAs/ Senators – 25  each.

b)MPAs                – 05 each.

All other categories for issuance of PB Arms licenses shall apply to the Prime Minister, which shall be decided on merit of the each case.”

There is a contradiction between the report of the Standing Committee and the aforesaid letter of Prime Minister’s Secretariat as the  Committee fixed the quota as a monthly quota, whilst the said letter refers to an annual quota. Learned Standing Counsel was not able to resolve this contradiction. If the quota figure is taken to be annual it means that every year parliamentarians can get 14,690  persons armed with prohibited bore weapons, on the other hand if it is taken  to be  monthly quota the figure  comes to be 161,590. These figures have been arrived at by multiplying the number of parliamentarians with the quota. The minutes of the Standing Committee Meeting, albeit approved by the Prime Minister, are not a substitute for rules that are envisaged inter alia under Section 11 of the Ordinance.

6.                The referred report of the Standing Committee on Interior noted as under:-

“The Committee was informed that FIA is conducing inquiry of Arms Section of Ministry of Interior and during the investigation it was discovered by FIA that, Arms Licenses were issued by some officers and officials on fake bank receipts, forged signatures and fictitious stamps. Furthermore, official record was not maintained properly and part of it is missing.”

However, no information about the said inquiry was provided nor whether it had managed to detect the number of ‘fake’ licences, the persons responsible for their issuance and the action taken against them. The fact that a large indeterminable number of fake licences have been issued is in itself a telling comment on the workings of the Ministry of Interior.

7.                We enquired from learned Standing Counsel to cite the law, which fixes a quota for parliamentarians or any other person or body of persons in respect of prohibited bore weapons. The learned Standing Counsel responded by stating that this has been the practice for the last several years, but failed to cite any  law, rule or regulation in this regard. On the other hand the learned Additional Advocate General states that the Province is not responsible for issuance of  prohibited bore licenses and it is the sole responsibility of the Federation. He further states that neither the Provincial Home Ministry nor the  Police in Balochistan are involved in the entire process of issuance of such licenses and no information with regard to the applicants in respect of whom prohibited bore weapons licenses are to be issued is sought from the Government of Balochistan or the local Police, nor are the particulars of applicants sent for verification, nor after issuance of a license is the Government of Balochistan or the local police informed of such issuance and there is no list available with the Province regarding the number of persons from Balochistan, who have been issued prohibited bore weapons nor even a list of the numbers issued ever month or year.

8.       We have considered the matter and have not been able to discover any provision in the Pakistan Arms Ordinance, 1965, which provides a quota that parliamentarians can utilize nor has learned Standing Counsel been able to cite any law, rule or regulation in this regard. Accordingly, such quota prima facie appears to be contrary to the law governing the subject.  Moreover, the fact that the Province is kept completely in the dark is also a matter of grave concern. It further appears, from the documents placed on record, that no  legal criteria has been stipulated regarding eligibility for grant of prohibited bore weapons.  The governments own record and statements reveal that there is disconnect between the Provincial Government and the Federal Government, no criteria for issuance of prohibited bore licences is in place, no verification of applicants takes places, licenses can be easily forged, record does not exist with the Federal Government, nor duplicate record with the Provincial Government. The free circulation of prohibited bore weapons in society is attaining epidemic proportions and such weapons are unfortunately being used daily in heinous crimes.

9.       The Federal Government has power to issue licenses in respect of prohibited bore weapons under Sub-Section (2) of Section 11-A of the Ordinance, but the law does not permit the Federal government to exercise such power by fixing quota for Senators, Member of National or Provincial Assembles. Therefore, for the time being the Federal Government is restrained from issuing prohibited bore licences on quota basis.

Office to fix this case soon after summer vacations.

Sd/xxx

Qazi Faez Isa

CHIEF JUSTICE

Sd/xxxxx

Justice Muhammad Noor Meskanzai

JUDGE