MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 28 justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity or preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency. Where, however, the law itself makes no classification but leaves the selection to an outside agency or an administrative body without laying down any guidelines, thus enabling the body or authority to pick and choose, a legitimate complaint may be made on the ground that the law itself permits discriminatory application. Such was the position which came under consideration by this Court in the case of Waris Meah v. The State (1) 1 where this Court struck down the law on the ground that it was violative of this particular right. On the other hand, in the case of Jibendra Kishore Achharya v. Province of East Pakistan (2) 2 , a law which provided for payment of compensation on a sliding scale to proprietors, which decreased in proportion to the income of the estate acquired. The larger the income the lesser the scale of compensation. Nevertheless, this Court held the differentiation to be based upon a valid classification. The concept of the ‘equal protection of law’, which is derived from the American Constitution is not susceptible of any exact definition. “In other words”, as stated by the editors of American Jurisprudence, Vol. 12, page 409, “no rule as to protection of laws that will cover every case can be formulated and no test of the type of cases involving such a clause of the Constitution can be infallible or allinclusive. Moreover, it would be impracticable and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises.” Be that as it may, the only generalization that is possible is that it means “subjection to equal laws applying to all in the same circumstances” but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable and is based upon substantial differences having a relation to the objects or persons dealt with and to the public purpose sought to be achieved. It guarantees equality and not identity of rights. The principle is well recognized that a State may classify persons and objects for the purpose of legislation and 1 PLD 1957 SC (Pak) 157 2 PLD 1957 SC (Pak.) 9
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 29 make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, it prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification.” Reference may also be made to the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), where Chief Justice Dr. Nasim Hasan Shah held as under: - Fundamental Rights in essence are restraints on the arbitrary exercise of power by the State in relation to any activity that an individual can engage. Although Constitutional guarantees are often couched in permissive terminology, in essence they impose limitations on the power of the State to restrict such activities, Moreover, Basic or Fundamental Rights of individuals which presently stand formally incorporated in the modern Constitutional documents derive their lineage from an are traceable to the ancient Natural Law. With the passage of time and the evolution of civil society great changes occur in the political, social and economic condition of society. There is, therefore, the corresponding need to re-evaluate the essence and soul of the Fundamental Rights as originally provided in the Constitution. They require to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future. Indeed, this progressive approach has been adopted by the Court in the United States and the reason given for doing so is that – ‘While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield a new and fuller import to its meaning: (Hurtade v. California— 110 US 516)’.” At Para 17 of the above judgment, Ajmal Mian, J., as he then was, (later Chief Justice) observed as under: -
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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