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 48 before the Court. But notwithstanding the disinclination of the court to give an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rent for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriation was necessary and not an unreasonable classification. In Abul Aala Maudoodi v. State (PLD 1964 SC 673 at 707) this Court expounded the law on reasonable restriction as under: - “The view that the expre ssion “reasonable restrictions’ in a case like the present should be considered exclusively in relation to the factual grounds on which the law imposing the restrictions declares that they may be imposed is one, which in my view, cannot be accepted by a Court which is required to enforce a citizen’s right of free association as formulated in the Constitution. The citizen is entitled to approach the Court for a declaration, firstly, that his freedom has been restrained under law, and secondly, that it has been unreasonably restrained, and for the determination of the latter question, I find it impossible to exclude from consideration, the circumstances of the application of the restraint. A circumstance of overpowering importance, where the Constitution guarantees such a freedom, would be that the restraint has been applied by a person in authority acting merely on his own opinion. I may here cite in support a short passage from
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 49 the judgment of the United States Supreme Court in the celebrated case of Yick Wo (1) 1 – “For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself” Although some weight might be allowed to the contention of Mr. Manzur Qadir that the Courts should assume that an opinion of the Provincial Government in a case like the present has been formed in a responsible manner after a proper examination of the relevant facts, yet I do not conceive that the intention of the Constitution is that the citizens shall enjoy their Fundamental Rights subject to an opinion based, however responsibly, on the mere onesided appraisement of such facts as have been brought to the notice of the authority making the order. Great importance is to be attached to the fact that the Constitution itself makes the Governor, namely a single person, the sole source of executive authority in the Province. To accept the view advanced by Mr. Manzur Qadir would be in effect to cause the opinion of a single person to prevail against the Fundamental Right of all the citizens, over whom he is to exercise executive responsibility and power in the particular respect. The Courts cannot regard themselves as satisfied that the citizen’s freedom has been subjected to a reasonable restriction unless it is proved to their satisfaction that not only the grounds of the restrictions as stated by the law are reasonable in themselves, but they have been applied reasonably as required by the Constitution. The only manner which the Courts themselves would regard as reasonable is that existence of the factual grounds of the restriction should have been established in the mode which the Courts recognize as essential where a right to life or liberty or property is concerned, namely, after a proper hearing given to the person concerned. (I postpone for later consideration the question whether to grant the hearing after making the order, can ever be reasonable). Any presumption that the authority in question has acted in accordance with justice or reason or equity, if made by the Courts in respect of such actions would, in my opinion, amount to a denial of the duty which the Courts are called upon to discharge in respect of these fundamental matters. The duty of the Courts would be thus to apply the principles of reason and justice according to the procedures with which they are familiar, 1 30 Lawyers’ Edition, p. 220
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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