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PLD 1993 SC 341

Per Saleem Akhtar, J.

(a) Constitution of Pakistan (1973), Article (1973) 25(2) (3), 8(3) (b)
r/w Criminal Law (Special Provisions) Ordinance (II of 1968)—-Premable—-

To begin with the impugned Ordinance does not fall within the provisions of Article 25(2) and (3) nor it has been saved under Article 8(3)(b).[p. 355]F.

(b) Constitution of Pakistan(1973), Article 25
r/w Criminal Law (Special Provisions) Ordinance (II of 1968)—-Preamble —–

The generality of application of the impugned Ordinance has removed the earlier discrimination of Balochi and Pathan (as ceated by section 8 of F.C.R) but has discriminated from the other areas of Pakistan which are similarly situated. This classification is neither rational nor based on any intelligible differentia. Further it can be noted that under section 1(3) the Government may, by notification on such a date specified therein, direct that the Ordinance shall cease to be in any area in which it is in the force and shall be deemed to have been repealed in that area.[p. 362]M

This power to repeal in any area is unguided and unfettered depending entirely upon the mercy, whim and wishes of the Government. In the absence of any guidelines such repeal may be discriminatory and unreasonable. If the object of the Ordinance is to meet the undefined requirements of the area, then unless a criterion for repeal is laid down, the exercise of power may lead to discrimination, favoritism, despotic order and in spite of an area having achieved the level to be governed by general law will not get rid of the Ordinance. This provision by itself may be justified but its operation is destructive of equality clause and fundamental right to have equal protection of law.[p. 364]N

Although areawise classification on the basis of local circumstances for applying different laws may be justified, it must be intended to achieve a lawful, rational and reasonable object which may not run contrary to the fundamental rights guaranteed by the Constitution and principles of justice and equality. The law should have real nexus with the object. It is not sufficient to decorate the Act by making provisions which may seemingly look like complying with the demands of justice as required by the Constitution but the effective and operative provision may in application be violative of these provisions. Such complex and compounded provisions will have to be examined and scrutinized to find out the real object and the effect of such provisions in their application.[p.364]O

In the impugned Ordinance the process of applicability has been reversed. It has been applied to areas instead of tribe and race but the power to notify its cessation thereby repealing it from any area has been given to the Government without any guiding principle or fixed criteria for exercise of discretion. Thus a “repulsive procedure” could be withdrawn or allowed to continue without any reasonable ground. Even the power to notify the cessation of the Ordinance from any area must be based on certain grounds, reasonings and principles which are completely absent here. This offends against the guarantee contained in Article 25 of the Constitution. [p. 365]P

If one takes a deep scrutiny of the provision it will be clear that it confers unrestricted and unfettered power in the executive to administer criminal justice. When regular Courts have been established in the area to adjudicate civil disputes, to provide for trial of criminal offences by tribunal (Jirga) under a different procedure, leaving the destiny entirely in the hands of the executive officers does not serve the object and purpose of the Ordinance. It is complete negation of the fundamental rights which guarantee equal protection of law, equality before law and right of access to justice unhindered and unfettered as provided by the Constitution and the Injunctions of Islam.[p. 365, 366]Q

Our Constitution is based on the principle of trichotomy of power in which executive, legislature and judiciary has their own functions independent from each other. None of these three organs are dependent upon the other nor can claim superiority over the other. In this context and background to impose executive officers to carry out the judicial work by ignoring the Court established in that area by itself creates discrimination and negates the very concept of justice and violates fundamental rights.
[p.366]R

All these facts clearly contradict and negate the assertion of the appellant that the provisions of the Ordinance have nexus with the object of the Ordinance. The provisions for demanding security and imposing collective fine equally give unfettered discretion to the Naid-Tehsildar, Tehsildar and the Deputy Commissioner. [p. 367]S

These provisions crest a bar to the right of citizens to approach the established Courts of law and to be governed by the general criminal law applicable in the entire country. The exclusion is not based on any rational classification or intelligible differentia.[p. 367]T

After passage of about four decades the situation has much improved, Courts have been established in very district and judicial officers are performing their duties and adjudicating civil cases, investigating agencies with sufficient experience and training exist, which have in the past handled criminal cases. the infrastructure for trial of criminal offences is available. It will only require issuance of notifications by the Government for trial of offences under the ordinary law in the entire province, which in adjudication of civil rights, is governed by the ordinary law of the land.[p. 374]DD

Preamble — Constitution of Pakistan (1973), Articles 9, 25 & 175 — right to access to justice — Meaning — Legislature cannot frame such law which may bar right of access to Courts of law and justice — Provisions of Criminal Law (Special Provisions) Ordinance, 1968 deny the right of access to Courts and justice which is infringement of Articles 9, 25 & 175 of the
Constitution.

(c) Constitution of Pakistan(1973), Article 9, 25, 175
r/w Criminal Law (Special Provisions) Ordinance (II of 1968)—-Preamble—-

The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases where special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons on the Tribunal, providing procedure or imposing any sentence of conviction. Such special Tribunalls and Courts must follow the ordinary rules of justice, equality and good conscience. In fact the administration of justice cannot be made subject to or controlled by the executive authorities.
[p.368]W

Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty have save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice.[p. 367]U

The right of access to justice is internationally well-recognized human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal and Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law. The right of equal access to ordinary Tribunals and Courts is recognized in other countries also. [p. 368]V

One of the modes for blocking the road to free access to justice is to appoint or handover the adjudication of rights and trial of offences in the hands of the executive officers. This is merely a semblance of establishing Courts, which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly
meet the demands of Constitution.

Considering from this point of view Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildasr to the officials of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquillity or economic prosperity and well-being. The Constitution envisages independent judiciary separates from the executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25 of the Constitution. [p.369]Y

Interpretation of Constitution —

Principles.

The interpretation of Constitution attracts most of the principles employed in interpreting the statutes, but care has to be taken that it is not restrictive, pedantic or limited. Unlike other enactments the Constitution is a living documents, which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare and amity among the citizen and the nations abroad. It is the basic structure on which the entire edifice is built and therefore it has to be interpreted in a manner to keep it alive and blossom in every atmosphere and in every situation. [p. 355]G.

(d) Constitution of Pakistan(1973), Article 25

Following are the principles for application of equality clause of the Constitution —

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classifiction can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classifiction reasonable it should be based

(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left our;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification. [p.358]I

As the judgment from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classifiction for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and defferentia must be (based) on rational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles in liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate eqauality clause. Thus, the substantive and proceedural law and action taken under it can be challenged as violative of Articles 8 and 25.[p. 359]J.

Where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution.[p.357]H.

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