FARHAT JALIL Versus PROVINCE OF SINDH

TANZIL‑UR‑REHMAN, ACTG. C J. ‑‑‑These are 14 Petitions filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. These petitions, in view of the reliefs sought, are divided into two groups. Group `A' bearing C. P. Nos. D‑258, 265, 274, 275, 276, 277 and 278 of 1990 have been filed by 47 male students, seeking admission to the Medical Colleges in Sindh to the First Year M.B.B.S. of academic session 1989‑90. While Group `13' comprises of the other seven petitions filed by 7 female students, bearing C. P. Nos. D‑168, 169, 170, 176, 241, 225 and 206 of 1990, seeking admission to Medical Colleges of Sindh for the same year of the aforementioned academic session. The facts and points of law involved in all the above petitions, being same and similar, we intend to decide these by this common judgment.

2. The Government of Sindh through its Health Department (the respondent No. 1 hearin) issued a Prospectus on 9th December, 1989 formulating its policy and laying down rules for admission to the First Year M.B.,B.S. & B.D.S. courses in Medical Colleges in the province. Part It of the said Prospectus deals with admissions (Allocation of Seats‑‑M. B., B. S.). Rules 1 and 2 being relevant are reproduced as under:‑‑

"1. Subject to any law and rules regarding admission, a candidate who is a permanent resident of any district shall bye eligible for admission against the quota of the respective district as given below:‑‑

DISTRICT MERITS SEATS

Name Boys Girls Total

Karachi 301 209 510

Name Boys Girls Total

2. Hyderabad 101 36 137

3. Sukkur 44 17 61

4. Shikarpur 25 12 37

5. Larkana 50 14 64

6. Dadu 42 11 53

7. Jacobabad 36 9 45

8. Khairpur 32 12 44

9. Nawabshah including

Nosheroferoze 61 22 44

10. Tharparkar 46 18 64

11. Sanghar 30 11 41

12. Thatta 32 11 43

13. Badin 30 8 38

Total 830 390 1220

II. GENERAL MERIT SEATS

1. Karachi Centre 8 2 10

2. Hyderabad Centre 3 1 4

3. Larkana Centre 3 1 4

Total 14 4 18

Note:‑‑Separate allocation of seats for Boys and Girls is being made as per Government policy determined in the larger public interest."

The respondent No. 1 then invited applications to such admissions on 15th January, 1990 through National Press. The petitioners, in response to the said public notice, submitted their applications on prescribed Forms. Respondent No.2 thereupon prepared and displayed the tentative merit list of the candidates domiciled in their respective Districts for admission to the First Year M.B.,B.S. Class, 1989‑90 Session (hereinafter referred to as "the First List"). Dates of interview of the Candidates including. the petitioners were duly notified. However, respondent No. 2 after few days of the publication of the "First List" withdrew it and displayed another List (hereinafter referred to as "the Second List"). The Second List did not bear the names of the petitioners of Group `A'. Being aggrieved by the omission of their names in the "Second List" they filed the above Constitutional Petitions, challenging the validity of "the Second List". The petitioners‑ prayed that:‑‑

"(a) the second list displayed by the Respondents on 19‑3‑1990 (Annexure `E' to the petition) be declared as inoperative, without lawful authority and of no legal effect and the same be set aside;

(b) The respondent may be directed to act in accordance with law, prospectus and the policies announced by the Respondents as contained in the prospectus for the Session 1989‑90 and give effect to the first list announced on 14‑3‑1990 which contains the names of the petitioners as eligible for admission to the First Year M.B.,B.S. Class 1989‑90 Session;

(c) Restrain the Respondents and all persons acting on their behalf from giving effect to the second list being impugned in this Petition and direct the Respondents particularly Respondents Nos. 2 and 3 to accept the admission fees from the Petitioners and to permit them to attend the classes of First Year M.B.,B.S. as and when the academic session commences;

(d) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case;

(e) Cost of the Petition may also be awarded."

3. The other seven petitioners of Group B', in the circumstances, stated above, inter alia, prayed that:‑‑

(a) The Prospectus of M.B.,B.S. and B.D.S. for Medical Colleges of Sindh, 1989‑90 issued by Respondent No. 1 to the extent of allocating seats and fixing quota on the basis of sex be declared as ultra vires of the Constitution of the Islamic Republic of Pakistan;

(b) to direct respondent No. 2 to admit girl students to Ist Year M. B B. S. Class on merit with the boys seeking admission in 1989‑90."

4. Mr. Obaid‑ur‑Rahman, learned counsel for the petitioners of Group `A', submitted that a vested right to be admitted to Medical Colleges was created in favour of such petitioners by including their names in the first list that was duly published in accordance with rules mentioned in the prospectus that was published under the provisions of the Sindh Medical Colleges Act, 1987. Such right cannot be taken away by dropping their names from the "Second List". It was further submitted by him that unless Act V of 1987 is struck down, the prospectus will hold the field.

5. On the other hand, M/s. Haider Raza Naqvi, Mrs. Rashida Patel and Mr. Abdul Ghaffar for the petitioners of Group B' relied on the case of Shrin Munir v. Government of Punjab PLD 1990 SC 295 and contended that the prospectus issued by the respondents to the extent of fixing quota on the basis of sex being ultra vires the Constitution of Islamic Republic of Pakistan requires to be struck down to that extent by this Court.

6. Mr. Abdul Hafeez Lakho, learned Advocate‑General Sindh submitted that the "1st List" was issued under the said Prospectus, but no sooner respondent No. 1 came to know of the judgment pronounced by the Supreme Court of Pakistan in Shrin Munir's case, the other respondent prepared and displayed "the Second List", which is in accordance with law laid down by the Supreme Court.

7. The Sindh Medical Colleges Act, 1987, inter alia, provides that the Government may, by Rules, regulate admissions in a Medical College and may provide for allocation of seats and conditions for admission. It is under this Act that this Prospectus has been issued, which, inter alia, provides for allocation of seats, District‑wise and sex‑wise in each district. Chapter III of the said Prospectus also lays down Rules of admission. Rule 3 provides that all seats in various districts are open for competition within such district and nobody shall be denied admission on the grounds of race, religion, colour or caste. Rule 4 provides that competition in each district shall take place between candidates of that district. Rule 5 provides that the seats which remain vacant at the time of selection shall be filled by admitting the next candidate on merit from the same . district. If the boy's seat remains vacant in a district, it will be filled in by the girl candidate of the same district and vice versa. If the seats still remain vacant the same shall be filled in by consideration of candidates on combined merit from the tagged district allocating boys' seats to boys and girls' seats to girls. In case a seat falls vacant during first six months academic year of admission, the same shall be filled in by adopting the aforesaid procedure. Any seat falling vacant thereafter shall not be filled and shall stand forfeited.

8. Mr. Obaidur Rahman in support of his contention placed his reliance on the case of Huma Rafiq Khan v. Government of Sindh 1988 MLD 2098 and submitted that the social conditions prevalent in the Province of Sindh are different from Punjab and, therefore, the allocation of seats on discrimination of sex is not the only consideration. For further support, reliance was placed by him on two Indian cases, namely; (i) Sakhawant Ali v. State of Orissa AIR 1955 SC 166 and‑ the case of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and others AIR 1958 SC 538.

9. As regards the two Indian cases cited by the counsel, they were distinguished at the time of arguments and we need not state them in detail as they are based on "reasonable classification", which is not provided in the provision of Article 25(2) of our Constitution. As regards the Huma Rafiq's case the same being under appeal before the Honourable Supreme Court in C.P.LA. No. K‑491 of 1987, judicial norm demands us to exercise a restraint to comment on it. It may, however, be added that no material was placed before us in the above cases that the discrimination was not on the basis of sex alone. The petitions are completely silent about it nor the learned Advocate‑General has mentioned any thing about the material weighing consideration with the Government, other than sex.

10. We may now refer to the Supreme Court judgment in Shrin Munir's case. The said judgment was pronounced on a number of Civil Appeals filed against the judgment of Lahore High Court, Lahore dated 24‑5‑1987 in several intra‑Court appeals. In this judgment the Honourable Supreme Court, while giving an exhaustive discourse on the principle of interpretation of the Constitution, observed that:‑‑

The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality of the one and the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the ground of sex and sex alone. If in Article 22 the word "sex" had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under Article 25 would have become impermissible in educational institutions with regard to admission therein. The girls would have sought admission in institutions exclusively reserved for boys and the boys would have sought reservation in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls was kept exclusive for the purpose of and within the limitation of clause (3) of Article 25. As the two Articles 25 and 22 stand at present, the general rule is that "sex" cannot be adopted as the sole criteria for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article 25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively creating to the needs of the male population and also educational institutions catering exclusively the female population in our society. However, when an educational institution is thrown open for co‑education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation' of Constitutional mandate."

It was further observed that:‑‑

"The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females. Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility."

An lastly, invoking the principles of policy contained in Article 37 of the Constitution in aid to the provision of the Constitution of Article 25(2), it was observed that:‑‑

"However, the consensus has developed that the basic principles of policy should be considered to be a part of the Constitution and other provisions of the Constitution should not be interpreted totally losing sight of it. A harmony should be struck as far as possible without of course enforcing in positive terms the basic principles of policy or allowing them to supersede the fundamental rights or in any manner curtailing what is mandated in the Constitution. To that extent the learned counsel for the appellants is justified in referring to the affirmative, terms of the basic principles of policy contained in Article 37 calling upon the State to make technical and professional educational institutions generally available and higher education equally accessible to all on the basis of merits."

11. As regards the enforceability of the principles of policy it seems beneficial to quote from the celebrated judgment in Haji Nizam's case PLD 1976 Lah. 930 which has been referred to by the Honourable Supreme Court in several cases including A.M. Qureshi's case P L D 1981 SC 377, while considering the question of the applicability of the Islamic principles of International Law, and lately approved in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi P L D 1990 SC 1. The relevant passage at pp. 979‑80 reads as under:‑‑

"Thus, there is no bar to the superior judiciary in the performance of its functions and duties and in exercise of its jurisdiction and powers to act or to declare law in accordance with those principles. To put it differently, the judiciary like other organs and authorities is immune from attack qua its actions and declaration of law on any ground relatable to principles of policy. If it takes any action or declares any law in accordance therewith, there is nothing in this Article to prevent it F from doing so. This discussion on the bars relating to the enforcement of, or actions in accordance with, the principles of policy leads to an irresistible conclusion that qua the judiciary (though it cannot direct other organs of the state to act in accordance with principles of the policy) there is nothing to prevent itself from acting on those principles subject of course to some other constitutional limitations and important compulsions qua the statute law which would be spelt out separately. (See Part XVI infra):"

12. And to have further discussion on the applicability or enforceability of the Principles of Policy enshrined in the Constitution, we may refer to the observation' of Shri M.C. Setalvad, Attorney‑General of India, as quoted in "Directive Principles of State Policy in the Indian Constitution" by K.C. Markandan, Jalendhar,1987, pp. 318‑19, which reads as under:‑‑

"Although the Directive Principles of State Policy confer no legal rights and create no legal remedies, they appear to be like an instrument of Instructions, or general recommendations addressed to all authorities in the Union reminding them of the basic principles of the new social and economic order which the Constitution aims at building. These fundamental axioms of State Policy, though of no legal effect, have served as useful beacon‑lights to Courts. It has been held in the context of the directive principles that legislation making the land resources of the country effectively available to the larger mass of the cultivating community in acquisition of the lands for a public purpose. Restrictions imposed by laws on the freedom of the citizen may well be reasonable if they are imposed in furtherance of the directive principles. Thus these principles have helped the Courts in exercising their power of judicial ` review. They will, therefore, not only form dominating background to all State action, legislative or executive, but also a guide, in some respects, to Courts. The directive principles are but an amplification of the Preamble to the Indian Constitution which bases the authority of the Constitution of India on the solemn resolve of the people of India to secure to all its citizens justice in the social, economic and political fields: Liberty in all spheres, Equality of status and opportunity: and the promotion among them all of Fraternity assuring the dignity of the individual and the unity of the Nation."

13. We would further like to quote two important paragraphs written by the learned author of the above Book, which read as under:‑‑

"To make a just appraisal, therefore, of the real nature of the Directive Principles and the significance of their incorporation into the Indian Constitution, one has to take into consideration all the above observations. It is incorrect to categorise them wholly as rights, duties, obligations or even as principles as the terms are understood in common parlance although they partake the nature of each one of them. They are rights which the individual enjoys in his collective capacity by virtue of being a member of the Welfare State: They are not rights in the sense that they are inherent and the individual can demand as a matter of right, but rights which are conferred by the State on the individual for the specific objective of promoting the social well‑being. Similarly, they are duties devolving upon the State only to the extent that they have to establish a social order in which social, economic and political justice would prevail. They are not duties in the legal sense, duties, for the non performance of which the State shall be answerable in the Courts of law, but in the moral and constitutional sense. The Constitution enjoins that the State shall perform these duties and in the absence of legal enforcement, these duties have a moral binding and to the extent the directives morally bind the State to discharge its duty for the achievement of the ideal in view, they partake the nature of obligations. The Directives are not wholly obligations for through them certain rights can be conferred on the people and they have a legal character also by virtue of being a part of the Constitution which is a legal document. Obligations on the contrary do not confer any right nor do they have a legal connotation and to use the word `legal obligation' to convey something that is legally binding is not correct usage. Finally, the Directives are not mere principles although the heading or the title says so. The Directives, unlike principles, are binding in character and their non‑observance would mean breach of faith.

`Directives', to reiterate, are in the nature of duties which the Constitution calls upon the State to perform to achieve the Welfare State, thereby conferring on the people the rights to their well‑being, and for the performance of which the State is constitutionally and morally obliged. Directives aim at achieving social and economic democracy in addition to political democracy thereby supplementing and not supplanting the rights enjoyed by the individual under fundamental rights. From Article 37 it is evident that the Directives are fundamental in the governance of the State and as such it is obligatory on the part of the Executive and the Legislature to take into consideration the principles contained in it, while framing laws relating to social and economic matters although the individual cannot effectively see to its compliance by resorting to the Courts of law and through it compelling the State to discharge its duties under the Directives at any point of time. They ate directives from the Constitution to the State, specifically and exclusively, asking it to perform certain duties fundamental in character with the assurance, implicit that in the performance of those duties there shall be no compulsion by individuals acting through the judiciary. In other words, it is the constitutional requirement that in the State's performance of these duties individuals should not drag in the judiciary as they would in respect of the enforcement of fundamental rights. From the point of view of the State, non‑compliance of these directives would be as much unconstitutional as it would if they had been made enforceable by the Courts. That precisely is the meaning of the word `shall not be enforceable by the Courts of law' in the context." (pp. 171 72, ibid).

14. Now adverting to the contentions of the learned counsel that "the Second List" was ultra vires the prospectus and the Act V of 1987 under which the same was issued. The contention of the learned counsel in view of the law laid down by the Honourable Supreme Court, loses its force. As provided in Article 189 of the 1 Constitution, "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan". In fact, the law declared by the Honourable Supreme Court becomes the law of the land. It is binding not only on all Courts in Pakistan, but also on all functionaries of the Government.

15. A law to be valid must be in conformity with the Constitutional norm. If a statute does not conform to the constitutional norm, and transgresses the limits I prescribed by it, the statute is ultra vires the Constitution and thus invalid. H.M. Searvai, a famous writer and author of "Constitution of India", published in 1975 at pages 54‑57 has ably summed up certain rules in this regard, as under:‑‑

(1) There is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and the onus to prove that it is unconstitutional lies upon the person who challenges it.

(2) Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of the law upheld.

(3) The Court will not decide constitutional questions if a case is capable of being decided on other grounds.

(4) The Court will not decide a larger constitutional question than is required by the case before it.

(5) The Court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it. .

(6) A statute cannot be declared unconstitutional 'merely because in the opinion of the Court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution.

(7) In assessing the constitutionality of a statute, the Court is not concerned with the motives, bona fides or mala (ides of the legislature; the Court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a Court may think of it.

(8) Ordinarily, Courts should not pronounce on the validity of an Act or part of an Act, which has not been brought into force, because till then the question of validity would be merely academic." (pp. 48‑49 Cf. "Role of Supreme Court in Indian Constitution" by M.P. Dube,_New Delhi, 1987).

16. If any Law, Rule or Regulation, comes into conflict with any fundamental right guaranteed by the Constitution, the same will be ultra vires the provisions of the Constitution under which the fundamental right has been guaranteed, which seems to have been violated by that law, Rule or Regulation, as specifically provided under Article 8 of our Constitution. The relevant Rule appearing on page 3 of the Prospectus in so far as it discriminates admission on the ground of sex is liable to be declared as void and it is so declared by us. The provisions of the Act V of 1987, however, do not call for to be declared as void as the Act simply enables the Government to regulate the admissions in a Medical College and allocation of seats. The provisions of section 3(a) and 3(2) (a) of the Act do not specify any ground for discriminating the allocation of seats on the basis of sex, and, therefore, they do not call for being struck down and the Act and relevant provisions thereof remain unaffected by the aforesaid judgment of the Honourable Supreme Court.

17. The contention of Mr. Obaidur Rahman that the "Ist List". displayed by the respondents had created a vested right in favour of the petitioners, deserves no consideration, as admittedly and on his own showing in the petitions the said list Was "tentative" only, subject to several exercises, provided in Rules 15 and 19, such as scrutiny of original documents, appearance before the. Selection Board l and even after selection, the admission to be remained as provisional for some time.

18. Mr. Obaidur Rahman, submitted lastly that the equal protection clause being Article 25 of the Constitution is to be interpreted and applied within the limits of principles of Islamic Social Justice in the light of Article 2‑A i.e. equality of status, of opportunity before law. In fact, Article 2‑A read with the Objectives Resolution, annexed to the Constitution was not only referred to by the counsel for male students, .Mr.. Obaidur Rahman, but also by Mrs. Rashid Patel, counsel for female students. But, both the learned counsel, did not discuss at all the proposition any further. We would, however, like to mention that the Constitution is the grundnorm for the other legislation and the Objectives Resolution made substantive part of the Constitution is the grundnorm of .the Constitution itself. In the words of Justice Holmes of the United States of L America, "The provisions of the Constitution are not mathematical formulae having their essence in the form; they are organic living institutions ....Their significance is vital not formally; it is to be gathered not simply by taking the words and the dictionary, but by considering their origin and the line of their growth". Cf. "Role of Supreme Court in Indian Constitution" by M.P: Dube, New Delhi, 1987.

19. In the ideological context of our Constitution, we owe a duty to provide ideological inspiration while interpreting a provision of the Constitution a purposive interpretation rather than neutral. However, a reasonable balance is always to be maintained between, the main organs of the State‑‑‑the Legislature, the Executive and the Judiciary.

20. The Objectives Resolution made substantive part of the Constitution provides a new approach to the constitutional interpretation since the principles and provisions of the, said Objectives Resolution have been placed in the body of the Constitution and have now to be read alongwith the other provisions of the Constitution.

21. We may quote herein from a most recent Article "Women and their legal Rights" in the light of some recent decisions of Courts in Pakistan. written by Mr. Justice Nasim Hasan Shah, a learned Judge of the Supreme Court of Pakistan, published in the Daily "Dawn" Karachi, March 26, 1990, wherein the learned author, in the very beginning writes that:

"At the outest it should be stated that consistent with the provision of our Constitution whereby all laws that are repugnant to the Qur'an and Sunnah will be invalid and that henceforth the decisions of the Courts are to be based on the injunctions of Islam, Islamic law has become the rule of decision in particularly all matters. It needs mention that the guarantee of equality of status conferred upon women by Article 25 of the Constitution is also being fully enforced by our Courts ."

22. We may, however, add that Islam is the greatest exponent of equality before law. The famous Hadith of the Holy Prophet (Allah's Blessing be on him) is very significant in this respect, when he said, "it was the usual practice in the j past that if ordinary persons committed a crime they were punished, but if an important person was found guilty he was let off. If Muhammad's daughter, Fatima, is ever found guilty of stealing I would have her hand cut off." We may also refer to a passage from "Introduction to Islam" by Dr. M. Hamiduilah, Central Cultural Islamique, Paris, a renowned Scholar of Islam, published by Sh. Muhammad Ashraf, Lahore 1968 page 125, while discussing about equality before law, a context relevant to the present case, writes:‑‑

"310. It goes without saying that if a chieftain has himself a bad conscience, having committed a prohibited thing, he would have little courage to reproach others about that thing. Therefore Islam has struck at the root and the source of this kind of evil, and declared that nobody is exempt from obligations, not even the sovereign, not even the Prophet. The teaching as well as the practice of the Prophet Muhammad, ~followed by his successors, requires that the head of the State should be fully capable of being cited before the tribunals of the country, without the least restriction. The Islamic tradition has been that judges never hesitated in practice to decide even against their sovereigns in cases of default.

23. As regards status, men and women are equal in the eye of Islam. A s woman in Islam is a sui juris. She can acquire and own property exclusively to herself. She can buy and sell the property in her own right. In fact, she has a I complete independent character in his behalf. It will be of interest to note that in England till 1883 the married women could not acquire properties in their own name exclusively. The Holy Qur'an in Surah Nisa'; "The women" in the very first verse telling about the origin of human being says:‑‑

"O Mankind: reverence

Your Guardian‑‑‑Lord

Who created you

From a single person,

Created, of like nature,

His mature, and from them twain

Scattered (like seeds)

Countless men and women"

It is further stated in the same verse:

"Reverence God, through whom

Ye demand your mutual (rights)"

And further it states:

"And (reverence) the wombs

(That bore you) for God

Ever watches over you."

The women whose womb bears the infant, as mother, is held in reverence, love and respect. The Holy Prophet Muhammad (Sallalahu `alaihe wa sallam) as stated by Syed Amir Ali, is reported to have said, "Paradise lies at the feet of thy mother". This is the highest regard which is paid by Islam to a woman. R Islam measures men and women with same yardstick in justice, prayer, charity, punishment and reward. (There is however, some difference of opinion among several schools of Fiah and the jurists in certain matters relating to inheritance, evidence etc. with which we are not presently concerned).The Holy Qur'an gives the best example regarding equality of status of man and woman when it says:

"They are your garments

And ye are their garments.

(Surah 11, Verse 187),

Men and women are each other's garments: i.e. they are for mutual support, mutual comfort; and mutual protection, fitting into each other as a garment fits in the body. It further says: And they (women) have rights similar to those over them in custom. For equal opportunity of education the Holy Prophet (p.b.u.h.), said i.e. to acquire education is the duty of every Muslim man and woman. As to the acquisition of professional training, there is no‑bar to women, but the nature of job is to be such as not to affect her modesty and social behaviour.

24. It may thus be observed that Article 2‑A of the Constitution in so far as it relates to point involved in the case as to the right of admission on the basis of "open merit" with no discrimination on the ground of sex alone, the provision of the equality before law, equality of status and equality of opportunity does not come into conflict with Islamic Social Justice; rather the provision and principle laid down in the Objectives Resolution, relating to the aforementioned concept of equality, aims at achieving the same through the Constitution of Pakistan.

25. The whole case was argued by the learned counsel for the parties on legal point only. We will; however, like to observe that by the "Second List" prepared on the basis of "open merit" the 47 male students before us have been excluded in the "Second List" and the 7 female students before us and perhaps many more will be benefited because the number of marks obtained by female students exceed the marks obtained by male students. It may. further be mentioned that the vires of the Prospectus as to the allocation of seats district‑ U wise was not challenged before us by the petitioners. Even otherwise the same does not appear to be ultra vires the Act V of 1987 as the same, perhaps appears to have been made on some other basis.

26. In result, respectfully following the judgment of the Honourable Supreme Court in Shrin Munir's case referred to above and for the aforesaid discussion, the seven petitions, Gied by male students, bearing C. P. Nos. D‑258, 265, 274, 275, 276, 277 and 278 of 199() are dismissed and the petitions filed by female students, bearing C. P. Nos. D‑168,169, 170,176, 241, 225 and 206 of 1990 succeed. Rules 1 and 2 falling in Chapter 11 of the Prospectus at page 3 relating to admission, issued by Health Department, Government of Sindh for the academic year 1989‑90 for the admission of Ist Year M.B.,B.S. to the extent of allocation of seats for boys and girls into the co‑education medical colleges of V Sindh have been framed without lawful authority and are of no legal effect and the above‑said Rules 1 and 2 are struck down to the extent of allocating the seats on sex basis, under Article 8 of the Constitution of the Islamic Republic of Pakistan. The respondents in the 7 petitions riled by female students, (the petitioners of Group `B') are directed to grant admission to them in the Ist Year M.B.,B.S. Class on the basis of open merit list in any of the co‑education medical colleges concerned, if entitled.

There will be no order as to costs,

M.B.A./M‑1078/K Order accordingly,