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Ss. 4. 5 & 6‑Gravity and nature of offences under Ss. 4, 5 & 6 Held, different.

(b) Prevention of Gambling Act (XXVIII of 1977 .‑

Ss. 4, 5 & 6 read with Constitution of Pakistan (1973), Art. 4 Bifurcation of cases against keepers of den and persons found in premises‑Held, reasonable and not offending equality clause.

In the instant case, the question was whether the bifurcation of the cases against the keepers of the den and the persons found in the premises was permissible in view of the provisions of Article 4 of the Constitution

Held : Such argument appears to be based on the equality clause. It is not every discrimination that is hit down by the Constitution. The Courts are to see whether "equal protection of law" means equality of operation of legislation or executive action in respect of the citizens.

There is in fact no equality of citizens except to the extent to which each one of them is classifiable. Differentiation or inequality would often offend equality clause on the ground of discrimination but only when the same is unreasonable or arbitrary, having no rational basis qua the law. It would, therefore be incorrect view in law if it is said that mere fact of two persons having been apprehended in the same transaction, they could not be tried separately or would be liable to equal sentence.

It would seem that if distinction proceeds on rationale based on reasonable classification equality clause would not be offended. Applying this test to the instant case it would appear that while the petitioners/ convicts were found gaming and organizing the gambling they could be considered to be a class separate and distinct from such other accused who were only resent in the gaming house or the place where gambling was carried on. The distinction is by no means whimsical or fanciful. It is substantial as the enormity of crime committed by such persons who run a gaming house or organize gambling is of a higher magnitude as compared to the crime of persons who indulge in laying stakes. In the first category the profits derived are also larger for it is common knowledge that the den keeper reserves to himself a portion of the stakes. Such classification was, therefore, reasonable and would not even offend the equality clause.

Haji Ghulam Zamin v. Khondkhar P L D 1965 Dacca 156 ; Haji Khudiadad v. Deputy Martial Law Administrator P L D 1978 Quetta 177 ; Nazeer Ahmed v. President, Special Military Court P L D 1978 Kar. 777 ; Rustam All v. The Martial Law Administrator P L D 1978 Kar. 736 ; Jibendra Kishore. v. The Province of East Pakistan P L D 1957 S C (Pak.) 9 and Moonda v. The State P L D 1958 S C (Pak.) 275 ref.

Nizamuddin Memon for Petitioner (in Petitions Nos. 1079 and 1090 of 1978).

Ameer Ahmed Khan for Petitioner (in Petitions Nos. 1115 and 1188 of 1978)

Rashid Akhund for Petitioner (in Petition No. 1108/78)

Mohomed Ali Jan for Petitioner (in Petition No. 1138 of 1978).

Usman Ghani Rashid, A.‑G. (Sind) for the State.

Date of hearing : 5th November, 1978.

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