' According to this writ petition, the petitioner was holding foreign exchange accounts which was frozen in the year 1998 in lieu of Special US Dollars Bond Certificates were issued in the sum of U.S.$ 5.268 million on 26-3-1999. These were to mature on 26-3-2002 upon expiry of three years maturity period. By pledging the said bond as security the petitioner, in the first instance, obtained a loan of Rs,436 million from ABN Amro Bank. Vide notification dated 11-8-2001 the respondent No,2 declared that the holders of the said bond, upon encashment in Pak Rupees, shall receive a rupee redemption bonus of 5% of the total rupee value of the bond. The respondent No,1 issued EDMD Circular No,4 dated 11-8-2001 accordingly. In view of the said position a further loan of Rs,46 million was obtained. Vide notification dated 22-3-2002 (Annexure-E) the said bonus has been withdrawn and respondent No, 1 , issued EDMD Circular No, 3 dated 22-3-2002. The said withdrawal and its consequences were stated to be illegal and void.
2. Comments were called for from respondents and these have been filed on 28-5-2002 and 3-6- 2002 respectively by respondents Nos,1 and 2. The plea raised in the comments was that the facility was provided vide notification dated 11-8-2001 to give an incentive to the bond holders to encash the same in Pak Rupee as there was a gap of around 5% between the rates of interbank and Kerb market at that time and since the gap has become nominal and differential prevailing in both interbank and Kerb markets qua the U.S. Dollars vis-a-vis Pak rupee is even placed, under the said changed environment, the bonus was withdrawn vide notification dated 22-3-2002.
3. A further development took place in this case that on 15-6-2002 EDMD Circular No,9 was issued by respondent No,1 whereby a clarification was made that the said bond with three years maturity that matures during 11-8-2001 to 22-3-2002 if redeemed in Pak rupee, holders thereof are entitled to redemption bonus of 5% irrespective of the date on which they are presented for encashment.
This case came up on 8-10-2002 and learned Deputy Attorney-General and learned counsel for the respondents was apprised of the said situation. Time was sought to seek instructions.
4. Learned counsel for the petitioner argues that since acting on the said representation the petitioner proceeded to incur a liability of about Rs,56 million, the respondents would be estopped from withdrawing the said bonus on the principle of the promissory estoppel. With reference to the said letter circular dated 15-6-2002, learned counsel states that this is clear case of discrimination inasmuch as the similarly placed persons have been granted the benefit while his client who is also entitled to the same stands excluded because of the dates .Mentioned in the said EDMD Circular. Learned counsel for the respondents contends that no element of promissory estoppel is involved. In reply to the said second contention of the learned counsel for the petitioner, he argues that Government is entitled to grant the said benefit w,e,f, any date and this is what precisely has been done and since the case of the petitioner does not fall within the said parameter he is not entitled to claim the said benefit.
5. The facts of this case are admitted. There, is no denial that the petitioner holds the said bonds; that 5% redemption bonus was to be paid under the said notification dated 11-8-2001 (Annexure- C/1); that the said benefit was withdrawn vide Notification dated 22-3-2002 (Annexure-E/1) and that vide EDMD Circular No,9 dated 15-6-2002 the said benefit again stands granted but to holders of such bonds which matured during the period of 11-8-2000 to 23-3-2002.
6. So far as the contention of the learned counsel in the matter of withdrawal of the said bonus vide notification dated 11-8-2001 is concerned, I do not find much force in the same. It is being stated that the petitioner took a loan of Rs,46 million acting on the assumption based on representation contained in the said notification dated 11-8-2001 that the said bonus will be paid. However, it cannot be said that the petitioner acted to his detriment. Admittedly it took money from the bank and either is in possession of the same or has invested it else where for its benefit.
7. However, learned counsel for the petitioner is on strong footing vis-a-vis his second contention.
Now vide EDMD Circular Nci.9 dated 15-6-2002 the bonds maturing during the period of 22-8-2001 to 22-3-2002 and redeemed in Pak rupee are to bear redemption bonus of 5% irrespective of the date on which they are presented for encashment. Now admittedly bonds being held by the petitioner were to mature on 26-3-2002. A plain reading of the said Circular would show that a holder of bonds maturing during the ' period of 11-8-2001 to 23-2-2002, even if he presented the bonds at a point of time after 22-3-2002 which can or may be a point of time beyond 26-3-2002 would get 5% redemption bonus if he redeems the value in Pakistani rupee but the petitioner standing by his side on the same date would not be getting the said 5% redemption bonus on the same terms. The Honourable Supreme Court of Pakistan has laid down principles with regard to equal protection of law in several judgments. Articles 25 (1) of the Constitution came up for consideration in the case of I.A. Sharwani and others v. Government of Pakistan (1991 SCM R 1041).
Mr. Justice Ajmal Mian (as his lordship then was) while delivering the leading opinion, after recapitulating case-law on the subject, deduced the following principles of law with regard to equal protection of law. These are to be found in para.26 of the judgment at page 1086 as follows:- -
(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 classification 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 found 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 classification reasonable; it should be based-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
8. The principles as to the classification were thus laid down in para-27 of the report after quoting with approval of commentary by V.N. Shukla on the Constitution of India, 7th Edition:
(a) A law may be Constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.
(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. The person, therefore, who pleads that Article 14 (corresponding to Article 25 of Pakistan Constitution) has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstance without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the Constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact.
(c) It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds.
(d) The Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.
(e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge. Matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.
(f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the fact of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
(g) A classification need not be scientifically perfect or logically complete.
(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.
9. Now applying the said rule to the facts of the said case wherein question was whether a specified date can be made basis for classification, it was thus observed by his lordship in para.30 of the judgment at pages 1089 and 1090 of the report:-- "30. It may be stated that as a general proposition it cannot be laid down that in no case a specified date can be made basis for classification. It will depend on the facts of each case and if the specification of a particular date is based on an intelligible differentia, which in turn has nexus to the object for which the relevant statute has been enacted, such classification will be legal and valid but if the specification of a date is arbitrary or whimsical, it cannot be made basis for classification as has been held in the above case of D.S. Nakara an others v. Union of India (supra) by the Indian Supreme Court. Furthermore, a distinction is to be drawn between a case in which a date is specified for the purpose of qualifying for certain benefit under certain enactment/scheme and a date which may be specified for the enforcement of a particular Taxing Statute or a notification granting certain concession from payment of taxes and excise duty. In our view, the former category should pass the test of reasonable classification, whereas for the latter category, there is no such requirement as the Legislature or the Government has the discretion/power to fix a date for the enforcement of a particular statute or for granting certain concession in respect of tax or excise duty, and for that purpose, there cannot be any mathematical or logical way of fixing a date except that the Legislature of the Government may fix the same according to its own need and convenience."
' To my mind, present is a case in which a date has been specified for the purposes of qualifying for certain benefits under certain enactment/scheme. Now according to the said dictum of Honourable Supreme Court this category has to pass the test of responsible qualification on the touchstone of the above-referred principles stated by the apex Court.
10. Learned counsel for the respondents was called upon to explain as to on what basis the said dates i,e, 11-8-2001 to 22-3-2002 have been fixed. Learned counsel replies that in fact the intention of the said circular is that benefit has been given to such persons who have purchased such bonds from 11-8-2001 to 22-3-2002. He refers to para.2 of the circular. Now para-2 of the said circular does provide that bonds sold during the period of 11-8-2001 to 22-3-2002 would be entitled to the said bonus on maturity during the period of 11-8-2004 to 22-3-2005 if redemption is made in Pak.
Rupee. However, para.2 caters for the situation mentioned therein, whereas para.1 clearly grants the said benefit to the holders of the bonds maturing during the period 11-8-2001 to 22-3-2002 irrespective of the date on which they are presented for encashment. Learned counsel is unable to state a single reason as to why this classification has been made between similarly placed citizens of the country. To my mind, it can be safely assumed that the specification of the said dates in the said circular dated 15-6-2002 is not based on intelligible differentia and, is clearly arbitrary and whimsical.
11. For all that has been discussed above, I do find that the petitioner stands discriminated against in the matter of application of said EDMC Circular No,9 dated 15-6-2002. This writ petition is accordingly allowed and the petitioner is declared to be entitled to the benefit of said EDMD Circular No,9 upon fulfilment of its conditions. No order as to costs.