1. ' SARDAR Said MUHAMMAD KHAN, J.-This writ petition has been filed, challenging the validity of letter written by Section Officer, Services and General Administration to all concerned, directing them not to provide accommodation, to Political Leaders of Pakistan and Azad Kashmir who were disqualified to hold political offices by special tribunals in pursuance of the relevant law on the subject.
2. The case of the petitioner is that he is a citizen of the Azad Jammu & Kashmir State and was elected as a Member of the Legislative Assembly of the Azad Jammu & Kashmir in May, 1975 against one of the seats reserved for the refugees of Jammu & Kashmir State, settled in Pakistan. It is further the case of the petitioner that on a reference made by the Chief Secretary of Azad Government of the State of Jammu & Kashmir, under section 4 of the Ordinance known as the Holders of Representative Offices (Disqualification) Ordinance, the petitioner was disqualified for a period of seven years from being elected or chosen as a member of the Azad Jammu & Kashmi Lagislative Assembly or the Council in terms of section 6 of the said Ordinance on the alleged grounds of using a jeep belonging to Pakistan Govern ment in the election campaign and the aforesaid order passed by special tribunal has been challenged by way of appeal before the Supreme Court of Azad Jammu & Kashmir, which is still sub judice. The petitioner has further stated in the writ petition that in view of the aforesaid letter, the petitioner was refused accommodation facilities on 9-9-1979 by the Protocol Officers and the Estate Officers of the Guest House and the M.
3. L. A's. Hostel at Muzaffarabad. The petitioner challenges the legality of the aforesaid action on the grounds that-
(1) the impugned order has been made without any lawful authority because it has not been issued in pursuance of any law, and thus, the action is clearly mala fide ;
(ii) it is violative of Fundamental Right No, 15 guaranteed by the Azad Jammu & Kashmir Interim Constitution Act of 1974, which guarantees the right of equality before law to all the citizens of the Jammu & Kashmir State ;
(iii) the Ordinance known as the Holders of Representative Offices (Disqualification) Ordinance, does not visualise any such restriction against the disqualified persons and the impugned order does not bear any relation to the object of the said Ordinance.
4. ' Coming to the points raised by the learned counsel for the petitioner, it may be observed that according to the contents of the impugned order, it was issued by the Section Officer, Services, in compliance of some 'direction'. It is not evident from the impugned order as to who had issued the direction which resulted in the impugned order. Even if it is assumed that the impugned order was issued in pursuance of direction by the Government, it still remains to be seen as to whether Government had any such powers under any statutory provisions. No law has been cited by the learned Advocate-General that Government had power to make any such order under any law on the Statute Book of the Azad Jammu & Kashmir State. if an order issued by the Government which affects the right of a citizen adversely, is not shown to have been made in pursuance of some statutory provisions, that order, being without any lawful authority, is to be struck down, especial when it offends against any constitutional provisions. It may be observed that the aforesaid disqualification Ordinance does not visualise any such C restrictions on the disqualified politicians.
5. Even if it is assumed for the sake of arguments that such an order can be issued in exercise of executive authority of the Government without any backing of law, the question arise that if the impugned order offends against the right of equality before law, how it can be held to be a valid order, passed in exercise of executive authority.
6. ' Now, the point which needs determination is as to whether the impugned order offends against Fundamental Right No, 15 guaranteed by the Azad Jammu & Kashmir Interim Constitution Act of 1974. Before dealing with the point, it would be expedient to survey some case-law on the subject.
7. ' In PLD 1957 SC (Pak.) 157, some provisions of Foreign Exchange Regulation (Amendment) Act of 1956 were held discriminatory as being violative of Article 15 of the Constitution and were held to be void. The Amending Act contained three sections prescribing three different punishing authorities, each with different powers and procedure and entailing punishments of unequal nature and description. It was held that Act conferred discretion of a very wide character upon the authorities to act in relation to subject falling within the same class in three different modes, varying greatly in severity. As no guidance, whatsoever, was provided by the amending Act with regard to exercise of this discretion, the Act leaves the subject falling within its provisions, at the mercy of arbitrary will of the authority. Thus, the provisions of the amending Act were held to be void.
8. ' In PLD 1958 SC (Pak.) 41, it was held that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party.
9. ' In PLD 1976 Lah. 789, a Notification issued under the provisions of West Pakistan Shops and Establishments Ordinance of 1969, whereby the shops of barbers and hair dressers in certain populous cities of the province were exempted from the operation of sections 6 and 7 of the said Ordinance. It was held that as no reasonable basis was shown to exist for including chosen areas and for excluding other areas for the enforcement of provisions of sections 6 and 7 of the Ordinance, the Notification was arbitrary, unreasonable and discriminatory and violative of principle of equality before law.
10. ' In PLD 1975 SC 506, it was held that phrase "equal protection of laws" in the Constitution of Pakistan (1973), does not forbid discrimination with regard to things different, nor does it prohibit reasonable classification. It was further held that mere fact that legislation is made to apply only to certain group of persons, does not invalidate legislation if all persons, subjects to its terms, are treated alike under similar circumstances. "Equal protection of laws" does not mean uniformity of procedure. It was further opined that phrase "equal protection of the laws" means that no person or class of persons shall be denied the protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness's. It only means that persons similarly situated or in similar (circumstances, will be treated in the same manner. However, it was held that to justify the validity of classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinctions. It was also opined that where 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. The concept of "equal protection of law," was held to be not susceptible of any exact definitions and it was opined that it would be impracticable and unwise to attempt to lay down any generalization covering the subject, each case must be decided as it arises.
11. ' In AIR 1955 SC 166, it was held that reasonable classification is no bar under Article 14 of the Indian Constitution. The classification, however, should not be arbitrary and must rest upon some real and substantial distinctions bearing a reasonable and just relation to the things in respect of which the classification is made. In other words, the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation.
12. ' The perusal of the case-law on the subject shows that the principle of "equality before law" or "equal protection of law," does not imply that law should be uniform in its application to all the groups of citizens. The classification is permissible and uniformity in its application is not necessary in case of different situations and different circumstances. It means that classification is permissible under law in different circumstances and in different situations, subject to the conditions that there is a classification and it is made either by Legislature or by an authority which derived its powers from law or rules, having the force of law and that it should be just, reasonable and should not be arbitrary, capricious, unjust or unreasonable.
13. Applying the aforesaid principle to the case in band, we see, as has been already pointed out, that it has not been shown that impugned order was passed in pursuance of law or Rules, having the force of law. The learned Advocate-General has placed on record the Rules regarding stay in P. W.
14. D. Rest House. A perusal of the said Rules indicates that every traveller is entitled to get accommodation facilities in Rest Houses, subject to the conditions of payment of prescribed charges and the availability of the accommodation. It means that irrespective of the character of a person, a traveller even if he is not a State-Subject of the Jammu & Kashmir State, is entitled to stay in these Rest Houses etc. On the payment of prescribed charges, if the accommodation is available. It follows from this, that even a convict for an offence, involving moral turpitude, is not debarred to stay in a Rest House but a disqualified politician is not entitled to such a facility. It is obvious that the classification denying the right of accommodation only to the disqualified politicians, cannot be regarded as reasonable. Just or fair and thus, it offends against the sacred right of equality before law, enshrined in the Azad Jammu & Kashmir Interim Constitution Act of 1974.
15. ' The upshot of the above discussion is that the impugned order is unlawful, void and the petitioner is entitled to accommodation facilities in-Government Rest House etc. Subject to the Rules, governing the matter regarding such accommodation. The result is that the writ petition stands accepted.