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Constitutional Petition No.S.7 of 1985, decided on 28th April, 1986.
‑‑‑S.12(ii)‑‑Section 12(ii) of Ordinance deals with an appeal against an order of cancellation or suspension of licence and not with order of withdrawing permission for transfer of arms‑‑Order of District Magistrate cancelling permission granted by himself for transfer of rifle, challenged through constitutional petition‑‑Contention that proper remedy of petitioner was appeal under S.12(ii) of West Pakistan Arms Ordinance, repelled.
‑‑‑S.12(ii)‑‑Constitution of Pakistan (1973), Art.i99‑‑Owner of a rifle agreeing with petitioner for transfer of his rifle and District Magistrate allowed such transfer‑‑District Magistrate later on cancelling such permission‑‑Parties had not only complied with provisions of S.12(ii) of Ordinance but had sought permission of District Magistrate before sale‑ District Magistrate, held, had no jurisdiction to withdraw his permission which in fact amounted to cancellation of contract of sale‑‑Order of District Magistrate declared without any lawful authority in circumstances.
Madad Ally Shah for Petitioner.
Gul Muhammad Abro for Respondent No.2.
S. Sarfraz Ahmed, A.A.‑G. for the State.
Date of hearing: 28th April 1986.
The petitioner has felt aggrieved against the order, dated 5‑1‑1985 cancelling the permission granted to Muhammad Bux Vistro to sell his rifle to the petitioner.
2. The relevant facts are that the petitioner and the respondent No.2 had argeed to the transfer of rilfe No.203125 7 MM bore from the respondent to the petitioner and the respondent No.2 had applied to D . M . , Sanghar for grant of permission in that regard. Ttwe same was .granted on 18‑11‑1984. Thereafter, on the same date the petitioner got the entry made in his licence. It is also stated by the petitioner that he had received the said rifle from the respondent No.2 and that he had paid a sum of Rs.20,000 to the respondent No.2. However, no receipt of payment is attached with this petition nor there is any counter‑affidavit from the respondent No.2 controverting this position. It is, however, urged by Mr. Gul Muhammad Abro for respondent No.2 that the petitioner had not paid the price of the rifle and, therefore, the respondent No.2 had moved the D.M. that the permission should be cancelled and thereupon the permission was cancelled. It is however, an admitted position that the respondent No.1 before cancelling the permission did not give any notice to the petitioner. Since the permission granted on 8‑11‑1984 had been acted upon and the entries were duly made in the licence of the petitioner then thereafter the locus prenitentice in this respect was not available to the District Magistrate as the transaction was past and closed. Therefore, evidently the action of the D.M. was in breach of principles of natural justice and was without lawful authority and has to be declared as such.
3. Mr. Sarfraz and Mr. Gul Muhammad Abro had further contended that the petitioner had not availed of the remedy; of the appeal provide in section 12 (ii) of the West Pakistan Arms Ordinance, 1965. The A submission is, however, not correct as section 12(ii) deals with a appeal against an order of cancellation or suspension of licence whereas the present order is neither of suspension or cancellation of the licence but is an order withdrawing the permission for transfer of the rifle. In fact, section 4(ii) of this Ordinance allows the holder of an arm to sell the same to any person, who is not prohibited from possessing the same but only an intimation has to be required to the D.M. after the sale without delay. But in this case the parties had gone to a step further and had sought the permission of the D.M. before the sale and, therefore, the D.M. had no jurisdiction to withdraw his permission which in fact, amounts to cancellation of the contract of the sale. The District Magistrate had no authority in law to do so. Consequently, this petition is allowed and the impugned order is declared to be without lawful authority and not binding and respondent No.1 is restrained from acting upon the same. It is, however, made clear that the order will be without prejudice to any right which the respondent No.2 may have in respect of the price of the rifle.
H. A . K . Petition allowed.
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