اسلحہ لائسنس کی منتقلی کے بارے لاھور ہائیکورٹ کا تفصیلی فیصلہ۔

PLD 2021 Lahore 473

Under Part “E” of The Punjab Arms Rules, 2014, arms licenses are non-transferable but under Rule 22 thereof, in case of death or incapacitation of the licensee or “on account of other compelling circumstances”, the transfer of

license was possible through a No Objection Certificate by the prospective legal heirs. However, under part “C” titled “Transfer of license or place of business” in The Punjab Arms Rules, 2017 it has been provided under Rule 45 that transfer of the business arms license in cases other than death is possible only if a transferee has a legal heir and that too after fulfilling the requirements and eligibility criteria prescribed in Rule 35 of the 2017 Rules. Under Sub Rule 4 of Rule 45 of Rules of 2017, the original licensee shall remain responsible for compliance of the provisions of the Ordinance and Rules, terms of the license and instructions issued by the Government from time to time and shall also be held responsible for any violation thereof. Interestingly, under Rule 44 of the Rules of 2017, in case of death of licensee, a license can be transferred to a legal heir if an affidavit is submitted subject to fulfilment of the criteria under Rule 35 of The Punjab Arms License Rules, 2017. For the convenience, rule 22 of The Punjab Arms Rules, 2014 and Rules 44 and 45 of The Punjab Arms Rules, 2017 are reproduced as under for ready reference:-

22. Transfer of license in case of death or incapacitation.– (1) Subject to sub-rule (2), the Government may, in case of death of a licensee or his being incapacitated to carry out business on account of mental or physical health or some other compelling circumstance, transfer his license in the following manner:

(a) in case of death or incapacitation of a licensee due to loss of mental faculties, to a legal heir or any other person as may be authorized by all legal heirs through a no objection certificate on a stamp paper in the amount of not less than Rs.100/- duly certified by a Notary Public; and

(b) in case of an incapacitated licensee who retains full mental faculties, to such person, including a legal heir, as may be authorized by him through a no objection certificate in the manner provided in clause (a).

(2) Transfer of license under sub-rule (1) shall be subject to the following conditions:

(a) all transfers shall be made on an application which shall not be considered unless a non-refundable processing fee, as may be prescribed by the Government, has been deposited;

(b)the legal heir or any other transferee shall meet the same eligibility criteria as specified under rules 7 and 8; and

(c) no application for transfer of license shall be considered if on the date of making that application a period of more than three hundred and sixty five days has elapsed since the death or incapacitation of the licensee.

(3) The transfer of license under this rule shall not be construed as a right and as such may be denied on any reasonable grounds.

44. Transfer of license in case of death.– (1) A business arms license may be transferred to a legal heir of a deceased licensee, as may be authorized by all legal heirs in the form of an affidavit attested by a judicial or revenue authority, subject to fulfillment of the eligibility criteria as mentioned in section (35) of the rules and subject to prescribed fee (Schedule-I).

45. Transfer of the business arms license in cases other than death.- (1) A business arms license may, in cases other than death of a deceased licensee, be transferred to a legal heir, subject to the fulfillment of the eligibility criteria as mentioned in section (35) of the rules, and personal appearance of the original licensee, subject to prescribed fee (Schedule-I).

(2) An application for transfer of the business arms license under sub-rule (1) shall be submitted in writing to the Government on Form-V, along with the following documents:

(i) Copy of the business arms license;

(ii) all documents mentioned in subrule (2) of rule 43 in respect of the proposed transferee; and

(iii) any other document that the Government may specify from time to time.

(3) The Government may, after ascertaining the eligibility of the proposed transferee and obtaining the report as to his credentials, general conduct, and criminal record, present as well as past, from the local police and, if required, from any other appropriate agency, may approve the transfer and forward the case to the DC/ NRC for further processing.

(4) The original licensee, where living, shall remain responsible for compliance of the provisions of the Ordinance and the rules, terms of the license, and instructions issued by the Government from time to time, and shall be held responsible for any violation thereof, till the completion of transfer process in the prescribed manner.

(5) The transfer of license under this rule shall not be construed as a right and as such may be denied on any reasonable grounds.

A comparative analysis of the above said Rules of 2014 and 2017 reveals that during the lifetime of the licensee, a license can be transferred to a legal heir without the authorization by the other legal heirs. However, it is nowhere prohibited that if prospective legal heirs or legal heir(s) may not agree to transfer the license to a person already conducting business in partnership. Obviously, the inheritable right can be transferred with the consent of the prospective legal heirs. To put up an argument that a sui juris and legally competent person cannot transfer or attorn during his lifetime to some other person, would be a false argument. Prospective legal heirs are nothing but a heir in the waiting who may enjoy some rights with the contingency of the death of predecessor and until that fact is materialized. They cannot have any right except that of an advisor or a consultant. In the present case, as already stated the actual licensee has consented to the transfer of the license in the name of petitioner No.1. In other words, there is nothing on record to have adverse conclusion that petitioner No.2 has consented the transfer. 8. Another aspect of this case is that when the petitioner No.1 has applied for the transfer of arms license in his favour, The Punjab Arms Rules, 2014 were in existence and the Rules of 2017 were promulgated during its pendency.