1. ' ZAFFAR HUSSAIN MIRZA, J.---This appeal arises with the leave of this Court, from the judgment of a Division Bench of the High Court of Sindh at Karachi, in Constitutional Petition No,780 of 1973, dated 4th July, 1977 dismissing with costs the petition filed by the present appellant.
2. ' The facts in brief which led to the filing of the aforesaid Constitutional petition may be stated.
3. While the country was under Martial Law, on 13th January, 1972 the Chief Martial Law Administrator, promulgated the Foreign Exchange Repartriation Regulation, 1972 (MLR 104). Pursuant to the aforesaid Regulation the appellant declared and repatriated foreign exchange amounting to $ 1,70,000, through the Standard Bank Limited (subsequently having been merged in the Habib Bank Limited), respondent No,4, of which the appellant is said to have been the Managing Director at that time. As a result of this repatriation of foreign exchange, the Standard Bank received on behalf of the appellant a sum of Rs,20,90,486.77 (which shall be referred to as the 'principal amount'), being the rupee equivalent of the foreign exchange repatriated by the appellant. In addition, the Standard Bank received a further amount on behalf of the appellant in the. Sum of Rs,19,55,197.49 (to be referred to as the 'bonus amount'), to which the appellant was entitled under para.3(3) of the said Regulation. The latter amount was transferred, under the instructions of the appellant, by two separate entries, one dated 21st April, 1972 and the other dated 29th June, 1972, to the account of the Rawalpindi Engineering Company, a private limited company, owned and controlled by the appellant and his family. So far as the principal amount of Rs,20,90,486.77 is concerned, the same was withdrawn from the Standard Bank and transferred to the National and Grindlays Bank (hereinafter referred to as the `Grindlays Bank') in account No,230630215. The appellant then drew some cheques on Grindlays Bank, but the same were not cashed and the persons presenting the said cheques were verbally informed that the said Bank had been instructed by the State Bank of Pakistan (to be referred to as the 'State Bank') not to allow the operation of the appellant's account.
4. This fact was verified subsequently by the Grindlays Bank in writing through their letter dated 30th June, 1972 addressed to the appellant.
5. ' In the events that happened on 3rd August, 1972, the President promulgated the Foreign Exchange (Prevention of Payments) Ordinance (XXX of 1972)., which inter aim empowered the State Bank to direct any authorized dealer in foreign exchange through whom any person had repatriated any foreign exchange under MLR 104 to deposit with the State Bank the rupee equivalent of the amount so repatriated and any other amount payable on account of such repatriation. In purported exercise of the above power, the State Bank wrote to the Grindlays Bank, on 28th August, 1972 directing it to deposit the principal amount with the State Bank and also wrote to the Standard Bank to do the same in regard to the bonus amount issued to the appellant. In consequence of these directions, the Grindlays Bank deposited with the State Bank the said amount of Rs, 20,90,486.77 lying in the account of the appellant with it. However, so far as the Standard Bank is concerned, since it had transferzed the amount in the account of the M/s. Rawalpindi Engineering Company, it reversed the said entries and deposited the amount of Rs, 19,55,197.49 with the State Bank. The entries in favour of the said company were reversed at the request of the appellant.
6. ' On 25th September, 1972, Ordinance XXX of 1972 was repealed and replaced by the Foreign Exchange (Prevention of Payments) Act (XXII of 1972), whereby the State Bank was empowered to direct not only an authorised dealer through whom any repatriated amount was received, but also any other person with whom such amount or any part thereof, and any other amounts payable in respect of such repatriation, had been deposited, to deposit the same with the State Bank.
7. Subsequently, on 10th October, 1973, the Foreign Exchange (Prevention of Payments) (Amendment)
8. Ordinance, 1973 was passed, which amended the aforesaid Act and gave it retrospective effect from 10th March, 1972. The said Ordinance, was in turn replaced on 8th February, 1974 by the Foreign Exchange (Prevention of Payments) (Amendment) Act, 1974, which contains a new section validating all directions or instructions issued by the State Bank, from the date of the commencement of the Act first named till 25th September, 1972, to any person or authorised dealer in foreign exchange.
9. ' As the appellant was aggrieved with the directions of the State Bank resulting in the two Banks depositing the amounts in question with the State Bank, on 9th July, 1973 he filed a Constitutional petition in the High Court of Sindh (Constitutional Petition No, 780 of 1973) questioning the actions of the respondents herein. As during the pendency of this petition the aforesaid Act of 1972 and the Amending Ordinance of 1973 were promulgated, consequently an amended petition was filed with the leave of the Court on 25th February, 1975. Eventually by the impugned judgment the learned Judges of the Division Bench of the High Court of Sindh dismissed the Constitutional petition.
10. Being aggrieved the appellant filed a petition for leave to appeal which was accepted by this Court, in orer to consider, inter alia, the following points:
(i) Whether the High Court had misread section 6-A of Amending Act VI of 1974 in holding that the orders of the State Bank against the appellant had been duly validated thereunder, although the validation clause only covered directions issued from the date of the said Act, namely 8th February, 1974, when admittedly the State Bank's orders had been given as far back as May, 1972; and, ' whether the State Bank was competent to issue such directions after the appellant had disposed of the bonus amount in favour of the Rawalpindi Engineering Company, although this was done by a credit entry in the books of the Standard Bank, which was in accordance with the ordinary banking practice.
11. ' Now the salient features of ML1 104 issued on 13th January, 1972 may be stated. Paras 3 and 4 of this Regulation are relevant for the present purpose which may be set forth as under: "3. (1) Any person who holds outside Pakistan, otherwise than under any specific or general authorities of the State Bank of Pakistan, any foreign exchange, howsoever acquired, shall declare it on or before the 15th January, 1972, to the State Bank in such form as the State Bank may specify.
(2) The person declaring foreign exchange under sub-paragraph (1) shall repatriate it to Pakistan on or before the 25th day of January, 1972, through an authorised dealer in foreign exchange.
(3) A bonus of forty-five per cent shall be allowed by the State Bank of Pakistan on the foreign exchange repatriated under sub-paragraph (2).
(4) The rupee equivalent of any amount repatriated under subparagraph (2) shall not be chargeable to any tax to which would, but for this Regulation, have been liable.
4. (1) Whoever makes a full and true declaration of foreign exchange under paragraph 3 shall not be required to disclose how he acquired it nor shall any prosecution lie against him for having kept the foreign exchange abroad.
(2) All declarations made under paragraph 3 shall be treated as confidential and no Court or other authority shall be entitled to require the production of any such declaration in any proceedings before."
12. Disobedience of this Regulation was made punishable with transportation for life and also with confiscation of property of the person contravening the provisions of the Regulation. Para 6 of the Regulation conferred upon the Central Government plenary power to make rules and issue directions not inconsistent with the provisions of the Regulation for carrying out its purposes and to provide for matters not provided for therein. All such rules or directions, when issued were to form part of the Regulation itself and have effect accordingly. The next piece of legislation which requires to be noted is section 2 and section 6-A of the Foreign Exchange (Prevention of Payments)
13. Act, 1972 as amended by Act VI of 1974 (hereinafter referred to as the 'Ace) which are as hereunder:-- "2. Power to direct State Bank to stop payment:
(1) Notwithstanding anything contained in the Foreign Exchange Repatriation Regulation, 1972 (M.L.R.104), as continued in force by Article 280 of the Interim Constitution of the Islamic Republic of Pakistan, the State Bank of Pakistan may, and if so required by the Federal Government by order in writing shall direct:
(a) an authorised dealer in foreign exchange through whom any person has repatriated any amount of foreign exchange to Pakistan in pursuance of the said Regulation; or (b) any other person with whom the whole or part of the rupee equivalent of the amount so repatriated and other amount payable in respect of such repatriation is or has been deposited, to deposit with the State Bank, within the time specified by it, the amount representing the aggregate of the rupee equivalent of the amount so repatriated and any other amount payable in respect of such repatriation or, as the case may be, the part thereof so deposited.
(2) Any person or authority to whom any amount of money is payable by the person repatriating the amount of foreign exchange or who has against such person any claim the value of which can be expressed in terms of money may, within such time and in such manner as the Federal Government may, by notification in the Official Gazette specify, apply to the Federal Government for payment of the amount so payable or, as the case may be, of the amount, representing the value of such claim.
(3) Upon the receipt of an application under subsection (2) an officer authorised by the Federal Government in this behalf may, after making such inquiries as he may consider necessary, make such order as he may deem fit. Provided that, while making ouch an order, the officer shall have due regard to an order of the Federal Government, if any, specifying the person or authority whose claim against the person repatriating the amount of foreign exchange shall be paid in priority to all other debts and claims: ' Provided further that no order for the payment of money to any person or authority shall be so made unless the person repatriating the amount of foreign exchange has had an opportunity of showing cause against it.
(4) The officer making an order under subsection (3) shall forward a copy thereof to the State Bank who shall make to the person or authority specified in the order the payment required by the order, if any.
(5) The deposit by an authorised dealer of foreign exchange or any other person referred to in subsection (1) of any amount of money he is required to deposit with the State Bank under subjection (1), and the payment by the State Bank of any amount of money in pursuance of an order under subsection (3), shall be a full discharge of the authorised dealer or that other person or, as the case may be, of the State Bank from all liabilities in respect of the amount so deposited or paid."
14. All directions or instructions issued by the State Bank of Pakistan "6-A. Validation: ' from the date of the commencement of this Act till the 25th day of September 1972, to any person or authorised dealer in foreign exchange as specified in clauses (a) and (b) of subsection (1) of section 2 of the said Act to withhold payment to any person of any amount repatriated under the Foreign Exchange (Repatriation) Regulation, 1972, and of any amount payable in respect of such repatriation, shall be deemed to have been validly issued under this Act."
15. ' It would also be advantageous to mention that in exercise of powers conferred by subsection (2) of section 2 of the Act, the Federal Government issued a notification on 29th December, 1972 calling applications within the time prescribed therein in regard to any claim payable by the appellant, which teals as under: "S.R.O.1297(I)/72.--Whereas a direction under subsection (1) of section 2 of the Foreign Exchange (Prevention of Payments) Ordinance, 1972 (XXX of 1972) has been issued in respect of the foreign exchange repatriated to Pakistan by Mr. Inam-ur-Rehman AM, Managing Director, Standard Bank Limited, in pursuance of the Foreign Exchange Repatriation Regulation, 1972 (M.L.R. 104): Now, therefore, in exercise of the powers conferred by subsection
(2) of section 2 of the Foreign Exchange (Prevention of Payments) Act, 1972 (XXII of 1972) the Federal Government is pleased to direct that an application under the said subsection may be made, within ninety days of the publication of this notification, to the Government of Pakistan, Finance Division (External Finance Wing), Islamabad, staling the amount of money payable by the said Mr. Inam-urRehinan AM or, as the case may be, the amount representing the value of the claim against him and accompanied by documents, if any, in support of the application."
16. ' By another notification of the same date under subsection (3) of section 2 of the Act the Federal Government nominated Mr. N.M. Qureshi, PTS, Securities and Exchange Authority of Pakistan as the Authorised Officer for disposal of applications of claim against the appellant in the following terms: "S.R.O.1298(I)72.--In exercise of the powers conferred by subsection of section 2 of the Foreign Exchange (Prevention of Payments) Act, 1972 (XXII of 1972), the Federal Government is pleased to authorise Mr. N.M. Qureshi, PTS, Securities and Exchange Authority of Pakistan, for the purposes of the said subsection."
17. ' It appears that Fauji Foundation and some others had preferred claims against the appellant before the Authorised Officer which were pending adjudication at the time of the institution of Constitutional Petition by the appellant before the High Court and by order dated 11th July, 1973 the said Authorised Officer was restrained from passing any order on the pending claims. It has been stated by the learned counsel for the appellant that the aforesaid stay was continued throughout the proceedings before the High Court and when the matter was brought before this Court by order dated 20th June, 1977 the proceedings before the said officer were stayed, with the result that no orders have been passed determining the claims so preferred until today.
18. ' It may be stated, at this stage, that the Interim Constitution was promulgated on 21st of April, 1972 and Martial Law was lifted. However, MLR 104 was duly protected under the Interim Constitution.
19. Then came the Permanent Constitution which was promulgated on 14th August, 1973 and once again MLR 104 received due protection (See Schedules I and VI of 1973 Constitution). The result of these Constitutional provisions is that no provision of MLR 104, which has been continued in force as existing law is liable to be called in question under Article 7 of the Interim Constitution or Article 8 of the Permanent Constitution on the ground of inconsistency with or contravention of the Fundamental Rights guaranteed under the Constitution. The Fundamental Rights conferred by Chapter I of Part II of the Permanent Constitution were restored after the imposition of the Martial Law, in July, 1977 for the first time on 31st December, 1985 and since then have continued to remain in operation.
20. ' Mr. S.M. Zafar, learned counsel for the appellant has raised the following three main contentions:
(1) The action taken against the appellant commencing from 22nd May, 1972, when the Grindlays Bank on oral instructions of the State Bank, refused to encash the cheques drawn by the appellant, until the appointment of one-man tribunal under Notification dated 29th , December, 1972 and proceedings thereafter were all tainted with mala fides, and were therefore void on that score.
(2) The proceedings at present pending under the Act are liable to be declared without lawful authority, in that,
(i) since restoration of Fundamental Rights on 31st December, 1985 the Act has become void in terms of Article 8 of the Constitution, being discriminatory and arbitrary. In other words, the Act is violative of Article 25 of the Constitution guaranteeing equality before law and equal protection of law to citizens of Pakistan.
(ii) since the lifting of Emergency on 31st December, 1985 and the expiry of six months thereafter, i.e, 30th June, 1986, the Act has ceased to have effect in terms ofclause (6) of Article 234 of the Constitution,because the Act was inroad by the Parliament into the Provincial field of legislation.
(3) The Supreme Court is bound to decide the appeal in accordance with the changed legal position, particularly because it is based on the enforcement of Fundamental Rights and in order to give effect to the Federal structure enshrined in the Constitution, because an appeal is a continuation of the earlier proceedings.
21. ' So far as the first contention regarding mala fides of the actions taken against the appellant is concerned, the learned counsel wanted us to look at a photo-copy of the Summary for the President dated 24th June, 1972, which according to him provided the background for enabling the State Bank to withhold the amount which was due to the appellant on account of repatriation of foreign exchange and the bonus for ulterior motives. However, Mr. Naeemur-Rehman, learned counsel for the Federal Government, respondent No,1, objected to the consideration of this background on the ground that it was a privileged document which cannot be looked at. On this Mr. Zafar submitted that no privilege has been formally claimed under the signature of the competent authority and besides the document has already been produced in legal proceedings in the case of Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457. In this case the very same allegations of mala fides were made based on certain remarks attributed to the then President on this document. Learned counsel for respondent No,1, however, referred us to page 554 of the aforesaid report on which in para 82 of the judgment a finding was recorded that no mala fides was involved in the action taken.
22. ' Be that as it may, we pointed out to the learned counsel that the ground of mala fides does not seem to have either been pleaded in the Constitutional petition before the High Court or raised as a ground of attack on the impugned actions of the Government and its agencies or the legislative measures adopted. These allegations have also not been specifically pleaded in the memo of the petition, filed in this Court nor raised at the time of the hearing of the petition for leave to appeal.
23. On being pointed out this position, Mr. S.M. Zafar did not press the first contention.
24. ' The remaining two contentions hereinabove mentioned are indeed relatable to the point whether the provisions of the Act and the executive action taken thereunder is violative of the Fundamental Right relating to equality before law. It would therefore be convenient to take up these two contentions together. But before adverting to the respective contentions advanced by the learned counsel for the parties, it would be convenient to dispose of first the preliminary objection taken by Mr. Saeed A. Shaikh, learned counsel for the State Bank. He submitted that the question of violation of Fundamental Rights cannot be agitated on behalf of the appellant at this stage. It is in this context that Mr. S.M. Zafar put a great deal of emphasis on the provisions of clause (3) of Article 184 of the Constitution which has the effect of preserving the original jurisdiction of the Supreme Court to entertain a petition directly, in case a question of public importance with reference to the enforcement of Fundamental Rights is involved. Although, the present case is a case on the appellate side of the jurisdiction of this Court, it was urged that Constitution charges the Supreme Court with the overriding responsibility and function of preserving the Fundamental Rights of the citizens by making the highest forum in the country available directly in case where there is a threat of the invasion of Fundamental Rights guaranteed by the Constitution. It is therefore urged that the objection raised on behalf of respondent No,2 is per se technical and places no legal embargo on this Court to consider the contention advanced in support of the present appeal on the basis of the violation of Fundamental Rights. Mr. S.M. Zafar has referred us to the exposition of law on this aspect of the matter by.Hamoodur Rahman, J (as he then was) in Abul A'la Maudoodi v.
25. Government of West Pakistan PLD 1964 SC 673, where he observed as hereunder: "This brings me to the question as to whether, if the provisions of the Constitution are not retrospective, can an act done before the commencement of the Constitution (First Amendment)
26. Act be still called into question on the ground that it now affects a fundamental right. There can be no doubt that acts done and completed before the coming into existence of the fundamental rights cannot be re-opened on the ground of inconsistency, nor can proceedings already commenced be stopped. Thus if a person has been convicted and sentenced prior to the coming into existence of the fundamental rights under a law which now contravenes a fundamental right, his conviction cannot be set aside on that ground, because, the right had already been taken away and extinguished before the constitutional guarantee became available. But the position, in my view, would be different if the right was to be found to be still subsisting and capable of being enforced or there was something still left to be done to complete the extinction of the right even after the conferment of the fundamental rights. Thus if a person is detained under a law, which provides for preventive detention without trial, before the incorporation of the fundamental rights, he would certainly be entitled to challenge the order then made for his detention if the detention continues even after the coming into force of the fundamental rights on the ground that the law under which his detention was ordered is inconsistent with the security of person guaranteed to him. In other words, if a right which arose prior to the Constitution is still subsisting after the coming into force of the Constitution and is guaranteed thereunder, then a continuing infringement thereof may be redressed by invoking the provisions of paragraph (c) of clause (2) of Article 98 of the Constitution on the ground that a right in praesenti is being infringed contrary to the provisions of the Constitution."
27. ' We feel that in view of the fact that fundamental rights have remained in a state of suspension since the actions impugned in the Constitutional petition and until the decision of the same by the High Court, nay indeed even until the filing of the petition for leave to appeal in this Court, it will not be proper to refuse permission to the appellant to raise the Constitutional question at this stage, particularly when the decision thereon is not dependent on any question of fact.
28. ' There is yet another reason for overruling the preliminary objection which may be stated.
29. Although, as observed, on the date of hearing of the Constitutional petition by the Division Bench of the High Court die fundamental rights remained suspended, the question now sought to be raised was in a way raised before the High Court. In paragraph 8 of the impugned judgment the learned Judges have dealt with an argument raised on behalf of the present appellant questioning the conferment of powers under the said Act upon the Federal Government to refer claims against the appellant to a non-judicial forum, placing reliance on the case of Waris Meah v. The State PLD 1957 SC (Pak.)
157. The said case of Waris Meah dealt with the question of a statute being discriminatory and in violation of Article 5 of the 1956 Constitution, which preserved the fundamental right of equality before law in that Constitution. The learned Judges of the Division Bench in the impugned judgment repelled this contention on the following reasoning: "It may, however, be pointed out that the said Act, unlike the impugned Legislation in Waris Meah's case, neither provides for different forums for adjudication of identical matters nor does it confer any discretion upon the Federal Government to refer a claim to one or the other forum. The object of the said Act appears to be that whenever any claim thereunder is made to the Federal Government against a person repatriating foreign exchange under M.L.R.104, such claim is to be referred by it to an officer appointed by it. In East and West Steamship Co. v. Pakistan PLD 1958 SC p.
30. 44, Muhammad Munir, C.J. (as he then was), reiterated the statement of law made in Jibandra Kishore's case that equality is not violated by the mere conferment of unguided power but only it is its arbitrary exercise by those upon whom it is conferred, and that 'if statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of Legislative Power, and also for equality if the standard is reasonable', and 'if no standard is set up to avoid the violation of equality, those exercising the power must' act as though they were administering a valid standard'. In the instant ease, the law declares a definite policy and also a definite standard, which, in our humble opinion, is reasonable, and hence it is our view that the said Act is not hit by the dictum laid down in Waris Meah's case."
31. ' Again in para 20 of the impunged judgement the learned Judges of the Division Bench have expressly referred to the contention raised on the equality clause of the Constitution and dealt with in the following manner: "It was next contended by Mr. Brohi that though the impugned law has a pretended general application, in that it purports to apply to every person who comes within its ambit, it was clearly meant to apply only to the Petitioner, and hence the law is discriminatory and violative of the equality clause of the Constitution. Assuming, as contended by Mr. Brohi, that action under the impugned law has been taken only against the Petitioner, that by itself would not make the law invalid. The law itself has clearly a general application, though Mr. Brohi chose to describe it as 'Pretended generalization', and as we read it, it authorises every one having a claim against a person, who has repatriated any foreign exchange, to submit his claim against such person to the Federal Government and thereupon the Federal Government is required to refer the claim for adjudication to an officer appointed by it We, therefore, are unable to agree with the submission of Mr. Brohi that the law was meant to strike solely against the Petitioner. Even if the impugned law was applied only to the Petitioner, that by itself would not make the law unconstitutional or ultra vires. In F.B. Ali v. State, reported in PLD 1975 SC 506, Hamoodur Rehman, C.J. (as he then was), relying on the decision from the American jurisdiction in Tinsley v. Anderson (171 U.S.318) and a passage from Willis's Treatise on 'The Constitution Law of the United States', page 80, observed: 'Thus even a law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it."
32. The aforementioned two extracts from the judgment clearly demonstrate that the question now being raised was in some form or other raised even before the High Court and consequently the respondents are not taken by total surprise to their prejudice if it is allowed to be raised, when it is available to the appellant in a substantial way at the present time. We therefore overrule the preliminary objection raised on behalf of the respondent No,2.
33. ' Coming now to the first part of the second contention raised by Mr. S.M. Zafar, it may be observed that Article 25(1) of the Constitution reads as under: "All citizens are equal before law and are entitled to equal protection of law."
34. ' The following general observations on the Constitutional guarantee of equal protection of the laws in the U.S. Constitution are made in Corpus Juris Secundum, Volume 16A (Article 502) (page 269): "Equal protection to all is the basic principle on which rests justice under the law. By virtue of a clause in the Fourteenth Amendment of the Constitution of the United States expressly forbidding it to do so, State may not a deny to any person within its jurisdiction the equal protection of the laws. This clause is a pledge of equal protection of laws or protection of equal laws; and it means, and is guaranty, that all persons subjected to state legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed; but it guarantees only the protection enjoyed by other persons or classes in the same place and under like circumstances, in pursuit of their lawful occupations, and it is not a guaranty of equality of operation or application of state legislation on all citizens of a State."
35. ' Similarly, Seervai in his book 'Constitutional Law of India' (Second Edition), in respect of Article 14 of the Indian Constitution relating to the Fundamental Right to equality has tried to summarise the gist of judicial interpretation and opinion in respect of this Article as follows: "Art 14, as interpreted by the Courts, would run in some such words as these: The State shall not deny to any person., equality before the law or equal protection of the law provided that nothing herein contained shall prevent the State from making a law based on or involving a classification founded on an intelligible differentia having a rational relation to the object sought to be achieved by the law."
36. ' On behalf of the appellant, the learned counsel submitted the following four propositions which according to him sum up the content and substance of the right of equality under Article 25:
(i) State can make a reasonable classification for the purpose of legislation.
(ii) Classification in order to be reasonable must satisfy two tests:-
(a) Classification must be founded on intelligible differentia.
(b) Differentia must have rational relation/nexus with the object sought to be achieved by the legislation in question.
(iii) The object must be lawful and must not be discriminatory.
(iv) The object is discriminatory when there is a choice for selecting the person to whom the law may apply.
37. ' In support of these propositions, learned counsel has placed reliance on: (1) Khan Abdul Akbar Khan v. Deputy Commissioner of Peshawar PLD 1957 (W.P.) Peshawar 100; (ii) Toti Khan v. District Magistrate, Sibi and Ziarat PLD 1957 (W.P.) Quetta 1; (iii) Jibendra Kishore v. Province of East Pakistan PLD 1957 SC (Pak.) 9; (iv) Waris Meah v. The State PLD 1957 SC (Pak) 157; (v) F.B. All v. The State PLD 1975 SC 506; (vi) Pakistan Barbers' Association (Regd.), Lahore v. Province of Punjab PLD 1976 Lahore 769; and (vii) Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457.
38. ' It would be convenient now to briefly refer to each decision cited by the learned counsel and the principle laid down thereunder. The case of Khan Abdul Akbar Khan PLD 1957 (WP) Peshawar 100 related to Frontier Crimes Regulation, 1901, some of the provisions of which i.e, civil references, were made applicable to Pathans and Balochis only. The said provisions were therefore challenged as violative of Article 5 of the 1956 Constitution (then in force), in so far as these provisions did not provide equal protection of law to these communities. In this context Kayani, J., in his inimitable style expressed his view as under: "It is true that for the purpose of classification the distinction between a Pathan and a non-Pathan or a Baloch and a non-Baloch is real and substantial. But the process of classification has to be rational at all stages: the object for which discrimination is sought should also possess that quality.
39. If the quality of belonging to a well-defined class were enough for discrimination, we might as well expect a law that for the further suppression of crime all Pathans should be sterilised. If, however, we had a law providing for the sterilization of all persons who had committed theft or misappropriation thrice or more, it would be an instance of reasonableness in the object of classification. In the present case, the classification amounts to racial discrimination and is as open to criticism as discrimination between a negro and a white man."
40. ' The case of Toti Khan PLD 1957 Quetta 1 also relates to Frontier Crimes Regulation, 1901, in which provisions enabling executive authorities to refer any criminal case to a jirga were challenged as repugnant to Article 5. And void, under Article 4 of the 1956 Constitution (then in force.). SA.
41. Rahman, C.J. (as he then-was) accepting the contention stated his reasons as under: "It, therefore, follows that a person whose case has been referred to a jirga for trial is deprived of the ordinary methods of defence available to a person tried for an offence by a regular Court of law.
42. Although in certain instances, for example, in a murder case, he may receive a lower punishment than might be inflicted by a Sessions Judge, yet the process by which the final result is arrived at may be highly prejudicial to an accused person in a jirga trial when judged in the light of accepted canons of a fair trial. It cannot be held that the'classification mentioned in the Regulation for application of the relevant provisions is a rational or reasonable one. It is based principally on racial or tribal considerations and, to the extent that there-is provision for other classes being added to the Pathans or Ralochis for attracting the provisions of the Regulation, the classification may be wholly arbitrary and capricious at the sweet will of the executive. In my opinion, therefore, the provisions are ex facie discriminatory and do not rest on any classification such as could take the enactment out of the mischief of Article 5 of the Constitution.
43. ' It is also apparent that not only is there no reasonable classification of persons whose cases may be referred to a jirga but that the executive authorities have been given an unfettered discretion in the choice of persons belonging even to Baloch or Pathan tribes as to whether their cases should go to a regular Court of law or to a jirga. This discrimination may be exercised in respect of any one or more of a group of accused being tried jointly in a regular Court of law. Such arbitrary discretion is hit by the rule laid down by the Supreme Court in Waris Meah v. The State PLD 1957 SC (Pak) 157.
44. On this ground, therefore, also in the circumstances of these cases, the provisions of the Regulation outlined above should be held to be repugnant to Article 5 of the Constitution. There is no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum is to be regulated. The above provisions of the Regulation, therefore, to the extent that they permit arbitrarity the cases of persons belonging to the Pathan or Baloch tribes or of any individual member of such tribes to be referred to a jirga, and ultra vires of Article 5 of the Constitution and must be declared to be void under Article 4 thereof. The result achieved is parallel to that arrived at in respect of Civil References to a Council of Elders under the Regulation, by this Court in Abdul Akbar Khan's case PLD 1957 Pesh. 100 and there is almost parity of reasoning in that case and the present one.
45. ' In the case of Jibendra Kishore PLD 1957 SC (Pak) 9 some of the provisions of the East Bengal State Acquisition and Tenancy Act, 1950 were challenged as offending the equality clause of the 1956 Constitution: Muhammad Munir, C.J. Who wrote the judgment for the Court while expounding the meaning of the expression "equal protection of law" observed that this expression has been borrowed from the 14th Amendment to the Constitution of United States. He then stated the general principles enunciated by Courts in cases falling under this Constitutional guarantee in the United States as referred to earlier from the Corpus Juris Secundum. Learned counsel has particularly emphasised the following observations of the learned Chief Justice.
46. "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, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the prologs 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 fait and substantial relation to the object of the legislation."
47. ' In the case of Waris Meah PLD 1957 SC (Pak) 157 some provisions of the Foreign Exchange Regulation Act, 1947 as amended by Act XXXII of 1956 which delegated power to the Central Government or the State Bank, to determine whether offender should be tried under ordinary law or by an Adjudication Officer or by a tribunal were considered. These provisions were challenged as offending equality clause of the 1956 Constitution and it was held that impugned provisions were ex facie discriminatory and hence offended against Article 5. The Court re-asserted the general principles governing the guarantee of equal protection of law which have already been referred to and emphasised that a duty is cast on the. Courts to ensure that a law operates equally in relation to all persons within its mischief. In this connection, it was observed: "Here, not only is there discretion in the specified authorities whether they will proceed at all against any member of the class concerned, viz. Offenders against the Act, but there is also an unfettered choice to pursue the offence in any one of the three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by law, the choice must always be, in the judicial viewpoint, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5(1) of the Constitution."
48. ' The next case referred to is the case of F.B. All PLD 1975 SC 506. In this case certain amendments made in the Pakistan Army Act, 1952 and Ordinance IV of 1967 were, inter alia, challenged as violative of the equality clause of the 1962 Constitution on the ground that the said provisions in selecting particular citizens, namely, those accused of seducing or attempting to seduce the defence personnel, for differential treatment were per se discriminatory. It was urged that all offences under Chapter VII of the Penal Code fall in one class and the selection of only a part of one of such offences for a different treatment by a procedure which would result in depriving the person accused of such an offence of all the normal safeguards of a criminal trial, is clearly arbitrary and unreasonable, without a rational basis for such a discrimination. The challenge offered to the Constitutionality of the provisions called in question was repelled on the principles laid down in Waris Meah v. State (supra). It was pointed out that in that case, the impugned provisions of the Act were struck down, but it was observed if the Act had merely set up a Tribunal of exclusive jurisdiction, though with a procedure different from that prescribed by Criminal Procedure Code, no objection could have been taken to the Constitutionality of the Act because offenders against Foreign Exchange Regulation could validly and reasonably be considered to be a class different from offenders under the ordinary law. It was further observed that no objection on the basis of equality clause could have been successfully raised if the Act itself had indicated the classes of cases which were to be tried by ordinary Courts, the Tribunal and the Adjudication Officers respectively. The view taken by the Court was that these principles were applicable to the case in hand as there was a valid classification on a rational basis, namely, those who seduce or attempt to seduce a member of the Armed Services from his allegiance or his duty and there was no possibility of different treatment or of pick and choose from amongst such class of persons so accused for trial in one or the other manner.
49. ' In Pakistan Barbers' Associaiion's case PLD 1976 Lahore 769 Nasim Hasan Shah, J. (as he then was) held that the notification under section 5(4) of the West Pakistan Shops and Establishments Ordinance, 1969, directing that barbers' and hair-dressers' shops located in certain populous cities of the Province shall not be exempt from the operation of sections 6 and 7 of the said Ordinance, was repugnant to Article 25 of the Permanent Constitution. It was observed that no reasonable basis was shown to exist for including the areas actually chosen for the enforcement of the provisions of sections 6 and 7 of the said Ordinance and for excluding other areas from its application.
50. ' Last case relied upon was the case of Fauji Foundation PLD 1983 SC 457. It is not necessary to refer to any particular passage of this judgment as the opinion of Muhammad Haleem, C.J. Which deals with the relevant question has taken into consideration the principles already referred to hereinabove. Learned counsel for the appellant has however invited our attention to observation of Muhammad Haleem, C.J. On page 661 in connection with valid classification under a statute which has a nexus with the reason underlying such statute, as under: "From the above it is clear that generality in relation to classification is a rule but there can be legislation in regard to an individual if it is not discriminatory."
51. ' After referring to the aforesaid cases, learned counsel submitted that the cases in Pakistan are on the point that the legislature can provide for a separate category/classification for the application of any particular law and conceded that this classification can be reduced to even a single individual or person, provided such an individual can reasonably form a separate and distinct class although comprising only of a single member. However, learned counsel pointed out that each of these authorities insists that there must be a special reason for such a classification and that it is not discriminatory.
52. ' Learned counsel also relied upon a number of decisions from the Indian jurisdiction. We may briefly refer to these decisions in chronological order:
(1) Ameerunnissa v. Mahboob Begum AIR 1953 SC 91. The principles laid down in this case were that it is implicit in the functions of the legislature to make special laws to attain particular objects by selecting or classifying persons and things upon which such laws are to operate. It therefore follows that mere differentiation or inequality of treatment does not per se amount to discrimination violative of the equality clause of the Constitution, but it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the legislature has in view. In this case the State legislature intervened in a succession dispute between two sets of rival claimants to the estate of a deceased Nawab, a wealthy nobleman and a high dignitary of Hyderabad State. By this legislation the claim of one set of claimants was dismissed and the property was adjudged in favour of the other by making a special law to that effect. This legislation was held to be discriminatory in its character and void as offending the equal protection clause of the Indian Constitution. In holding so the learned Judges were of the view that the legislation denied to specified individuals right to enforce their claim in a Court of law and thus they were discriminated against from the rest of the community in respect of a valuable right which the law secures to them all. The dispute regarding the succession was considered to be a legal dispute to be adjudicated in an ordinary Court of law and the impugned legislation deprived the individuals subjected to it of their valuable rights which are enjoyed by all other persons occupying the same position.
(2) Meenakashi Mills v. Vibvanatha Sastri AIR 1955 SC 13. In this, case it was laid down that the equality clause guarantees to all persons the right of equality before the law, which means not only equal protection as regards substantive laws but procedural laws also. Therefore the principle was laid down that the implication of the Article is that "all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination". The impugned legislation was held to be discriminatory because it had the effect of some of the tax evaders to be subjected to a drastic procedure leaving other tax evaders to be dealt with under the ordinary law, because the reference of the case within a particular time had "no special or rational nexus with the necessity for drastic procedure". The concept of a classification having a nexus with the object of the legislation seems to have entered into the tests of Constitutional validity with reference to equality clause in the Indian jurisdiction at this stage
(3) Krishna Iyer and another v. State of Madras and another AIR 1956 Madras 480. In this case it was held that one of the tests whether a piece of impugned legislation is based on a reasonable classification is that it must be based upon some real and substantial distinction bearing "a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis".
(4) Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538. In this case, the learned Judges of the Indian Supreme Court upon review of the precedent cases in which principles had been enunciated and applied by the Court on the question of validity of legislation qua the equality clause of the Constitution were categorised in five classes. It is only necessary to reproduce category (iii) which is relevant for our purposes and on which reliance has been placed in which the following principle has been laid down: "A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In dertermining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the. Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law."
(5) Pandurangarao etc. v. Andhra Pradesh Public Service Commission, Hyderabad AIR 1963 SC 268.
53. In this case, Indian Supreme Court emphasised that in every case there must be some nexus between the basis of classification and the object intended to be achieved by the statute.
(6) Nagpur Improvement Trust v. Vithal Rao AIR 1973 SC 689. In this case the test of validity of legislation qua the equality clause was stated in the following words: ' It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved."
54. ' Learned counsel also relied on: Golden Tobacco Co. v. State of Bombay AIR 1957 Bombay 186, Ram Gopal v. Asstt. Housing Commissioner AIR 1969 Allahabad 278, and, Grand Cinema v. E. Tax Officer AIR 1969 Punjab & Haryana 98, but it is not necessary to refer in detail to the facts of these cases or the principles laid down therein, because the other decisions mentioned above from the Indian jurisdiction have been referred, which laid down the same principles and criteria.
55. ' The first question to be considered now is whether any provision of the Act is repugnant to the right of equality before law and equal protection of law guaranteed by Article 25(1) of the Constitution. On behalf of the appellant reference has been made to subsection (2) of section 2 of the Act and it has been submitted that under the aforesaid provisions any person or any claimant can file his claim with the Government in the manner prescribed by it, and then the Government would constitute a one-man tribunal who would adjudicate and determine the claim of such person. It was urged with great deal of emphasis that there is no rationale why an ordinary claimant is given this right to file his claim to be adjudicated in this special manner by a special tribunal, as against other similarly situated claimants, who would be required to go through the normal procedure before the Courts of law. It is in this manner, according to the learned counsel that this law discriminates between person and person who may have similar claims, and yet one category can take the benefit of the special tribunal whereas others of the same class will be left to 'follow the normal procedure. It was also submitted that the discrimination is implicit in the situation inasmuch as the appellant has been singled out to be subjected to claims in this arbitrary manner by ordinary claimants by having recourse to the filing of a petition before the tribunal. It was disputed that any rational basis is apparent for this discrimination or any object can be spelt out for making this discrimination. Citing examples, learned counsel stated that in the wide amplitude of subsection (2) of section 2, any claim by any party, even claims with regard to dower or damages can be filed against the appellant.
56. ' On the other hand, Mr. Saeed A. Shaikh, learned counsel defended the validity of the impugned provisions and submitted that the provision is not ex facie discriminatory and the claims were restricted to claims having a nexus with foreign exchange repatriated and not any claim whatsoever. In the submission of the learned counsel, therefore, there was a reasonable classification of such persons who had a claim to the foreign exchange repatriated, for differential treatment and the provisions of subsection (2) have therefore a nexus with the object of the legislation. He submitted that all the provisions of the Act are in general terms applying equally to persons situated equally. According to him, the expression "within such time and in such manner" as it occurs in section 2(2) does not include the person against whom the claim is preferred. He has objected to the invocation of the fundamental rights on the ground that on the date of the institution of Constitutional petitions the fundamental rights stood suspended. Another objection raised by the learned counsel was that the claimants under section 2(2), not having been impleaded as parties, it was not proper for this Court to give a decision against their interest without hearing them. Yet another objection raised by him was that the notification dated 29th December, 1972 whereby applications were invited against appellant was not the subject-matter of challenge in the High Court and therefore it cannot be assailed at this stage.
57. On perusal of the provision:, of the Act it appears from the preamble that the professed object of the enactment of this legislation was to prohibit certain payments, which is also reflected from the title of the Act, namely, Foreign Exchange (Prevention of Payments) Act. This Act was given retrospective effect from 10th March, 1972 by a subsequent amendment. Section 2 confers power on the State Bank to stop payment. Subsection (1) of this section opens with a non obstante clause with regard to MLR 104, which dealt with the repatriation of foreign exchange, as already stated. But it is important to note that this Martial Law Regulation was continued in force by Article 280 of the Interim Constitution. Subsection (1) of section 2 then confers power on the State Bank of Pakistan to issue directions to authorised dealers in foreign exchange through whom foreign exchange had been repatriated by any person in pursuance of MLR 104 or even any other person with whom the rupee equivalent of the amount so repatriated and other amount payable in respect of such repatriation has been deposited (which would include the bonus amount), to deposit such amounts with the State Bank. Subsection (2) of section 2 which is the main provision under challenge, then permits any person or authority to whom any money is payable by such a person who has repatriated the foreign exchange or who has against such persons "any claim the value of which can be expressed in terms of money" to apply to the Federal Government for payment of his claim. The" important words to be noted besides the words already put in quotation, in this subsection are "any" and "within such time and in such manner as the Federal Government may, by notification in the official Gazette specify". The first proviso to subsection (3) which deals with the appointment of authorised officer by the Federal Government as a tribunal for determining the claim, gives the power to the Federal Government to specify the priorities for the payment of debts and claims which will be followed by the authorised officer.
58. ' On a first look it does appear that the provisions of the Act are designed to subject a particular class of persons who had clandestinely and illegally kept foreign exchange outside the country and were compelled to repatriate such foreign exchange as a result of MLR 104, to a special procedure before a special tribunal so that if any other person was deprived of such money, he may establish his claim to the foreign exchange kept abroad. In this perspective it would appear that the object of the legislation was, in view of the special circumstances, in which the money was brought during the Martial Law period, in extraordinary circumstances and not voluntarily, to classify such persons who had repatriated the amount and persons who had a claim to such foreign exchange as a distinct class of claimants and persons on whose money such claim is made. However, on a closer scrutiny of the provisions in question it would appear that they are not capable of standing the tests laid down to be free from the taint of the prohibitions contained in Article 25 of the Constitution.
59. ' In the first place subsection (2) uses the word "any" with reference to person or authority to whom any amount of money is payable by the person repatriating the foreign exchange. The other expression used is "any claim" which can be represented in terms of money. These expressions are of very wide amplitude. The term "any' according to the Black's Law Dictionary (Fifth Edition) page 86 means: one out of many; an indefinite number; one indiscriminately of whatever kind or quantity. With reference to case law it has been stated: Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject-matter of the statute.
60. ' In the context in which the word is used it quite plainly means without qualification any person having any claim to money from the person repatriating foreign exchange or having any claim whatsoever, without qualification except that such claim must be capable of being expressed in terms of money, which could be preferred under the subsection. There is no indication whatsoever that such claim must have a nexus with foreign exchange originally repatriated. In this view of the matter it follows that merely because a person has repatriated certain foreign exchange under the Martial Law Regulation, he is being put into a separate class and any claim, which would have gone to ordinary Court of law with all the advantages of the procedure applicable in the trial of suits, is being treated differently by a special procedure of determination by a non-judicial tribunal presided over by a persona designata. There appears to be no rational basis for such a classification. But for the repatriation of foreign exchange any such claim against such person would have passed through ordinary procedures applicable to generality of civil litigation with right of appeal etc. ' As discussed above, the constraints and prohibitions contained in Article 25 of the Constitution are equally applicable to substantive rights as well as procedural rights. As held in the case of Toti Khan (supra) making a distinction between a case referred to jirga and ordinary methods of defence available to a person tried by a regular Court of law, here also the persons who have declared and repatriated foreign exchange were being deprived of the benefits of a regular Court trial for adjudication of claims against them on no rational basis. Mr. Saeed A. Shaikh was unable to shell out any reasonable basis for such classification and therefore the classification is wholly arbitrary and discriminatory as compared to the members of the community at large against whom any claims may be preferred in regular Courts of law. The impugned provisions are therefore justifiably exposed to attack on the ground that the classification does not rest on any intelligible differentia, which word means an attribute by which a species is distinguished from all other species of the same genus, or a distinguishing mark. The dicta laid down in the case of Waris Meah (supra) are also fully attracted in the present case, in that, as would be discussed next, the impugned provisions conferred unguided discretion to the executive to pick and choose the persons against whom claims would be invited. Therefore by virtue of the conferment of such unbridled discretion, the provision is ex facie discriminatory and arbitrary. In this behalf, the reasoning adopted by this Court in the case of F.B. Ali (supra), while distinguishing the case of Waris Meah, to the effect that if the legislation challenged in the last mentioned case had set up a tribunal of exclusive jurisdiction, by itself, the Constitutionality of the Act would not have been open to exception, because the discretionary powers of the executive functionaries of the Government would not have intervened to permit to some and refuse to others, the benefits of the Act providing for special procedure. We are also unable to see how this differentiation and separating of persons repatriating foreign exchange were treated as a class to achieve the object of the said Act. There is in the provisions of the Act no discernible object, nor was any pointed out for the purpose of which the classification was made. If the object of the legislation was to prevent the payment of amounts which had been repatriated to Pakistan and either held in foreign currency or in the form of rupee equivalent of such repatriated foreign exchange or other amounts payable in respect of such repatriation like the bonus dues, by the authorised dealers or other persons. Holding such amounts, so that the amounts be deposited with the State Bank, then the classification contemplated in para 2(2), has apparently no nexus with the object sought to be achieved by the legislation. However, as discussed above, the object of the legislation seems to be to subject selected persons out of those who had repatriated foreign exchange to claims at the discretion of the Government within such time and such manner as the Government specifies, to be determined by a special tribunal presided over by a non-judicial officer. This object in itself is per se discriminatory and not permissible by virtue of the equality clause of the Constitution.
61. ' It was argued that the impugned section 2(2) is only an effort at a pretended generality in its terms, but on closer scrutiny it is apparent that the Government possesses absolute discretion to apply the provisions to all or some or only one of the persons who repatriated foreign exchange. It was explained 'that by virtue of the secrecy provisions contained in MLR 104, no one else except the Government knows who were the declarants under the said Regulation. Therefore, the Government has a choice to declare the name of all declarants and invite claims against them or declare the names of some or only one. It was emphatically argued that in the present case the Government has declared the name of only the appellant as would appear from the notification of 29th December, 1972 in which only the appellant is named. In this connection, it was submitted that the assertion of the appellant that only he has been picked up has not been controverted by the respondents (paragraph 26 of the Constitutional petition and ground (v) thereof). There is substance in these arguments, for, it is quite apparent that unless the Federal Government by notification specify the time and manner for application by claimants for payment of the amounts, no such application could be entertained against any person or persons who may have repatriated the amount of foreign exchange, whose names, in any case, could not be made public, unless the Government in its discretion discloses the name of any such person or persons against whom it decides to invite the claim for adjudication. The conclusion therefore is that not only the impugned provisions are per se arbitrary and discriminatory but have been proved to have been put into operation in a discriminatory manner so as to violate the guarantee contained in Article 25 of the Constitution and deny the equal protection of law to the appellant.
62. ' It was argued by Mr. Saeed A. Shaikh that section 2(2) was not ex facie discriminatory, because there can be no other way of drafting the provisions contained therein. However, this submission was controverted on the plea that if the intention of the Government was not to retain any discretion, it was .Easy for the Legislature to provide that the Government shall, by notification in the Official Gazette, specify the names of all those who have declared their assets under MLR 104, and leave it to any person having any claim to apply to the Government against any one out of the whole class of such persons.
63. ' In such a case, according to the learned counsel, there would have been no discrimination involved, inasmuch as, there would be no occasion for pick and choose on the part of the Federal Government. The submissions of the learned counsel for the appellant have great deal of force. Mr. Saeed A. Shaikh has also relied upon several judgments. He has relied on the proposition that one of the cardinal principles of interpretation is that law should be saved rather than destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation. (Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397). There can be no cavil against this proposition as it is a well-recognized rule of Constitutional interpretation that there is a presumption in favour of the Constitutionality of a legislative enactment but if there is on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subjected to its provisions, then the presumption is displaced. We cannot be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for, in that case we will be making a travesty of the fundamental right of equality before law enshi fined in the Constitution. Reference was also made by him to Jibendra Kishore v. Province of East Pakistan PLD 1957 SC (Pak) 9 and Waris Meah v. The State PLD 1957 SC (Pak)
157. The propositions relied upon are also undisputed that equality before law as contemplated by Article 25 does not mean equality of operation of legislation upon all citizens of the State. But in this case, it has been demonstrated that certain individuals or a group of people, without any rational basis have been denied the equal protection of law in the matter of litigation available to the generality of other citizens of the State. Learned counsel has also referred to the case of Fauji Foundation (already referred to above) but in the foregoing part of this judgment the accepted principles and tests governing the question whether a piece of legislation is violative of equal protection clause have already been referred to from various cases. Some of these principles on which reliance was placed are that if a classification in the impugned law on the basis of any state of facts can be reasonably conceived that would sustain it and the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary lies upon one who assails a classification. For reasons already mentioned there appears to be no rational basis for classification which could reasonably be assumed in the present case.
64. The contention of the learned counsel for respondent No,2 that there is a reasonable classification which is the basis of the impugned provisions is not sustainable, because the claims envisaged by the provisions in question, as already discussed, are not restricted to claims against the persons concerned qua the foreign exchange repatriated, but any claim against the person as such. We cannot read into the provisions what is not there and the rule regarding the historical background of the statute as a guide to interpretation, as laid down in L Hamdard Dawakhana v. Commissioner of Income-tax, Karachi PLD 1980 SC 84, can only be invoked where the "words used are capable of more than one payable by the person repatriating the amount" and "any claim" as employed interpretation". In the present case, the expression "any amount of money are capable of plain meaning and there is no question of more than one interpretations of these expressions.
65. As to the argument that fundamental rights cannot be invoked because on the date of the institution of Constitutional petition they were suspended and not in operation, we have already referred to the dictum laid down by this Court in Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673 to the effect that where certain rights which are violated are still capable of being in force and there was something still left to be done under the impugned legislation when the fundamental rights have been restored, then the Court would be bound to give effect to such fundamental rights and save a citizen from being denied the benefit of the same. This was precisely the position in the case of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 in which legislation promulgated during the Martial Law, when the fundamental rights stood suspended, was struck down after the restoration of the Constitution and the fundamental rights.
66. The position in the present case remains identical, inasmuch as the claims before the Tribunal constituted under the impugned legislation are still pending and are yet to be disposed of.
67. ' The plea of non-joinder is also without substance because no such plea was raised before the High Court either by the first two respondents or by the claimants themselves who must be aware of the proceedings because of the stay operating against the Tribunal all along. Besides, it has been rightly urged that any claimants whose claims were pending before the Tribunal, do not have a vested interest in the procedure or the forum; The ordinary forums and remedies would be available to the said claimants in case the legislation is declared un-Constitutional.
68. ' In the foregoing part of this judgment are reproduced extracts from the impugned judgment of the High Court dealing with the question of Constitutionality of the impugned legislation. From the discussion hereinabove, it will appear that the learned Judges were not correct in holding that the impugned provisions did not confer any discretion upon the Federal Government to refer a claim to the forum thereunder. In holding that the law declares a definite policy and a demise standard which was reasonable, the learned Judges did not point out what was the policy of the law and what standard or guideline was prescribed for the exercise of discretionary powers vested in the Government. Similarly, learned. Judges have not taken into consideration all the provisions of section 2(2) when holding that it authorises every one having a claim against a person who has repatriated foreign exchange, to submit his claim against such person to the Federal Government.
69. Unless the Federal Government in its discretion chooses to invite applications by issuing a notification, there was no general provision enabling every claimant to prefer a claim against such person. The reasons finding favour with the learned Judges of the Division Bench are therefore unsustainable.
70. ' In view of the foregoing discussion, it is held that the impugned legislation being violative of Article 25 is void and un-constitutional. It may be clarified that as we have mainly dealt with section 2(2) for the purpose of testing the validity of the provisions, it does not mean that the provisions not expressly mentioned are free from illegality. Subsection (2) of section 2 is an integral part of the entire section 2 and therefore if that is struck down, the rest of the subsections of section 2 which are mainly ancillary cannot stand and operate independently. Similarly, sections 6 and 6-A are interconnected with action taken under section 2 and would similarly suffer from the same Constitutional infirmities.
71. Since the entire appeal is liable to be disposed of on the conclusion arrived at by us on the aforesaid arguments, we deem it unnecessary to consider any other contention. In the result this appeal is allowed and the provisions of the Act are declared void and of no legal effect to the extent as mentioned hereinabove. Likewise, all consequential actions taken or purported to have been taken pursuant to the above-said provisions of law and still pending or continuing in effect, are also declared to be without lawful authority and of no legal effect.
72. ' In the circumstances of this case, we leave the parties to bear their own costs.
…and 51 more citing cases