P L D 2001 Azad J&K 24 (PLP)

It is pertinent to note that Annexure 'B', a letter was written to all the M.L.As. and Ministers of twenty‑eight constituencies to propose the roads, which they want to construct in their respective constituencies. It clearly shows that a decision was taken by the Cabinet, after which the letter was written to them for submitting their proposals. As the contention of the learned counsel for the non‑petitioners is concerned, that the decision was cancelled by the Prime Minister, it has no substance, because there is nothing on the record on the basis of which it could be said that this decision was cancelled by the Prime Minister. There is only an affidavit, as stated earlier, ‑whereby it has been sworn that an amendment has been made in the decision. It was the fundamental duty of the non‑petitioners to place the copy of the decision of the Prime Minister on record, but they have failed to do so, therefore, it could not be said that this decision was later on set aside by the Prime Minister. Therefore, the contention of the learned counsel for the non petitioners, that the decision of the Cabinet was set aside by the Prime Minister, is hereby repelled, as being without any substance. Now the next question emerges that when ten k.ms. roads are being constructed in the constituencies of each M.L.A. and the Ministers, then why the schemes submitted by the petitioners were not included in P.C‑I? It C amounts to violation of Fundamental Right No.15 of the Interim Constitution, "Equality Before Law." The meticulous and comprehensive study of legal history of jurisprudence reveals that it was primarily introduced, firmly adopted and practised by the Holy Prophet (May Allah peace be upon him). It was adopted by the Holy Prophet (May Allah peace be upon him) much before Magna Cartra and, Fourteenth Amendment of American Constitution declaring the human rights and the supremacy of law as enunciated by the Western Jurists. The last Sermon of the Holy Prophet (May Allah peace be upon him) is the landmark in the history of the world and the mankind which recognised inalienable rights of man conferred by Islam which are known as fundamental rights. I would like to reproduce the important points of the last Sermon of the Holy Prophet (May Allah peace be upon him):‑‑ The above‑quoted Last Sermon of the Holy Prophet (May Allah peace be upon him), clearly conveys that no preference could be given to an Arbi On Ajmi and Vice Versa. Islam cherished the concept of equality. It is greatest exponent of the equality before law,. It criticized the distinction on the basis of Colour, Creed, Wealth and Power. The theory of "Equality Before Law" is anchor sheet of the Constitution. It postulates that all State‑subjects should be treated equally. In this respect. I would like to refer a case reported in 1989 PCr.LJ 77 (80), which reads as under:‑‑ "However, regarding observation of the learned Judge that one of accused is a Councillor and Vice‑Chairman, Union Council I cannot say anything better than cite from verse 135 of Surah AI‑Nisa of the Holy Qur'an. It reads:‑‑ ..be rich or poor, for Allah is closer to them both; therefore, follow not your inclination, lest ye deviate and if ye swere or turn aside, verily Allah is All‑aware of what ye do." I also recollect an incident at Madina during the days of the Holy Prophet, which has been stated in Sahih‑Al‑Bukhari that a woman belonging to the respectable Muzniyah Tribe was involved in a theft case. People of the tribe who were hesitant in approaching the Holy Prophet entreated Usamah Bin Zaid the emancipated slave of the Holy Prophet to recommend her case to the Prophet (May the Allah Almighty peace be upon him). When Usamah recommended her case to the Prophet, he said that:‑‑ if Fatima, the daughter of Muhammad (May the Allah Almighty peace be upon him) commits the offence of theft, she would surely tie subjected to the punishment of amputation of hand. It is further recorded in the Sahih that the Prophet said: "The previous communities perished because they used to punish the poor and weak and let their rich and powerful go scot free. According to the Islamic concept of justice and fair play people are not treated differently on the basis of their being high ranking personalities or belonging to the poorer class of the society. Even a king and an ordinary person have equal position in the eyes of the Qazi. Nobody is allowed to influence or pressurise the Courts. And same thing is provided in the Constitution of Islamic Republic of Pakistan (Article 4) that every person is equal before law." Although it has been held in various cases and by various authors that equality before law is the concept of English common law and it was introduced through Fourteenth Amendment in the American Constitution. But as stated earlier, that it was firstly adopted and practised by the Holy Prophet (May Allah Almighty peace be upon him) much before the Fourteenth Amendment of the American Constitution. Even the American and European have derived it from the concept of Islam so, it is wrong that it, was introduced firstly through the Fourteenth Amendment of the American Constitution. It is pertinent to note that while dealing with the term "Equality Before Law", Dicey propounded as under, as quoted by Syed Sharifuddin Pirzada, in his Book "Fundamental Rights and Constitutional Remedies in Pakistan" at page 366:‑‑ "it means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts, the 'rule of law' in his sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals, there can be with us nothing really corresponding to the administrative law (droit administratif) or the administrative tribunals' (tribunaux administratifs) of France. Dicey's doctrine has been criticised by Sir Livor Jennings. He says:‑‑ " 'For equality before the law' in its most obvious sense means an equality of rights and duties. In this sense there is no equality. Pawnbrokers, money‑lenders, landlords, drivers of motor‑cars, infants, married women and indeed most other classes, have special rights and duties. Nor is it possible to affirm that equality exists because any person can legally join one of these classes. A man cannot become a married woman or an infant; nor can anyone become a licence of a public house or a film exhibitor without the consent of someone else. What Dicey suggests by equality is that an official is subject to the same rules as an ordinary citizen. But even this is not true. An official known as a collector of taxes has rights which can ordinary person does not possess. A sanitary inspector can enter my house to inspect my drains, though my employer cannot. The Home Secretary .can compel me to make up a census return, though my neighbour cannot. A sheriff can summon me to serve on a jury, though my friends cannot. The list could be expanded almost adinfinitum. All public officials and especially public authorities, have powers and, therefore, rights which are not possessed by other persons. Similarly, they may have special duties. An elementary education authority must provide free elementary education for all children between certain ages. The Minister of National Insurance is under duty to provide unemployment insurance benefit out of funds vested in him for that purpose. Again a long list of examples could be drawn up. It is clear, therefore, that by 'equality before the law' and 'obedience to the law' Dicey was not referring to that part of the law which gives powers to and imposes duties upon public authorities. What he was considering‑‑and subsequent chapters make this clear‑‑was that if a public officer commits a tort he will be liable for it in the ordinary Civil Courts. I have explained that normally and subject to qualifications that is true. But it is a small point upon which to base a doctrine called by the magnificent name of 'rule of law‑, particularly when it is generally used in a very different sense. Nor does this make any effective contrast with droit administratif. For the purpose of droit administratif, as I have indicated in Chapter VI, is not to exclude public officers from liability for wrongful acts, but to determine the powers and duties of public authorities and to prevent them from exceeding or abusing their powers. For this administrative Courts are not in the least necessary, though both English and continental experience suggests that it can be done more easily by such Courts. The fact that France has one system and England has another for controlling administrative authorities is a strange reason for suggesting that England knows no administrative law but has a 'rule of law' instead. Moreover, administrative Courts are as 'ordinary' as the Civil Courts. There is no more reason for calling them extraordinary than there is for calling the criminal Courts extraordinary. Also, they are just as much official as the Civil Courts, and no more. All Courts are official. What matters is their independence of administrative influence and control. A judicial system in which the Lord Chancellor, an administrative officer, has such considerable authority can hardly be said to be less 'official' than the French Administrative System." While according to Jennings, 'equality before law', means that 'among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted, for the same kind of action should be the same for all citizens of full age and undertaking and without distinction of race, religion, wealth, social status, or political influence'. " We are, in full agreement with Jennings that equality before law means that among equals the law should be equal and should be equally administered, that like should be treated alike. This view finds support from PLD 1959 Karachi 342 (359). It is also pertinent to note that the following views were expressed by a Committee of International Jurists:‑‑ "It is thus clear that the concept of 'equality before the law' is susceptible of two interpretations. It could firstly be a purely formal principle. In this manner it implies only that those persons shall be treated as equal whom the law regard as equal. Secondly ‑‑ and it is with this meaning that we are here concerned ‑‑ it may imply that the law should treat human beings as equals in respect of those qualities with regard to which it is right so to regard them. This is in essence a moral judgment which cannot be exhaustively defined within the confines of any Constitution and still less in any document applicable to many national societies. It is possible, as in section 40(6) of the Constitution of Eire, 1937, to lay down the general principle that 'all citizens shall, as human persons, be held equal before the law and then to limit the generality of the principle by saying that this shall not be held to mean that the State shall not in its enactment have due regard to difference of capacity, physical and moral and of social function. Alternatively, as in the Pakistan Constitution, there may be a general statement (Article 5(1) that 'all citizens are equal before law and are entitled to equal protection of law' and in other (Articles 13 and 14) examples may be given of particular application of equality; thus, Article 13(3) provides that 'no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth, and Article 14(1) provides that in respect of access to places of entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, or place of birth'. Neither of these two techniques, however, cam avoid vagueness or incompleteness. As a general principle limiting the competence of the Legislature 'equality before the law' means simply this: The law passed by the Legislature must not discriminate between human beings except in so far as such discrimination can be justified on a rational classification consistent with the progressive enhancement of human dignity within a particular society. It is easy to think of extreme examples of discrimination in legislation which would offend against the principle of equality before the law as here defined; legislation against the Jewish people under the National Socialist regime is a case in point. The essential value, however, of insisting on equality before the law lies in the necessity which it places on the Legislature to justify its discriminatory measures by reference to a general scale of moral values. Equality before the law is thus the opposite to arbitrariness, and in spite of the difficulty of its interpretation, lies at the root of the Rule of Law put forward in this paper." Now when according to the decision of the Cabinet, ten k.ms. roads are being constructed in the constituencies of each M.L.A., then why the schemes, submitted by the petitioners have not been included in P.C‑1? The learned counsel for the non‑petitioners although submitted that ten k.m. road is being constructed in the constituency of the petitioner No.l, but he also conceded that the road is not being constructed on his proposal. When in all other constituencies, the roads are being constructed on the proposals of the M.L.As. concerned, then why the roads should not be constructed on the schemes submitted by the petitioner No.l? The non‑petitioners are also not constructing ten k.ms. road in the constituency of the petitioner No.2, according to his proposal. It is ruthless denial and violation of the Fundamental Right No.15 "equality before law". The non‑petitioners are comnutting discrimination by not constructing the roads in the constituencies of the petitioners; aecording to their proposals. The upshot of the above discussion is that, this writ petition is accepted. The non‑petitioners are directed to include the schemes submitted by the petitioners in P.C‑

1. They are also directed to start the work of construction on the schemes submitted by the petitioners alongwith the schemes submitted by other Members of the Azad Jammu and Kashmir Legislative Assembly. H.B.T./13/AJ&K Petition accepted.