2026 PLP 1 (MLD)

Mirza Viqas Rauf, J.

This single judgment shall decide subject petition as well as Writ Petition No.1917 of 2024, being raising similar questions of law and facts, more specifically challenging the vires of Section 21(2) of The Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 (II of 1965) (hereinafter referred to as Act, 1965 ). The petitioners, herein, are homoeopathic medical colleges imparting education to the pupils and they are aggrieved of Subsection (2) of Section 21 of the Act, 1965 as amended through The Unani, Ayurvedic and Homoeopathic Practitioners (Amendment), Act, 2021 (hereinafter referred to as Act, 2021 ).

2. The grounds on the basis whereof vires of Section 21(2) of the Act, 1965 are called in question are mainly that it is violative of Articles, 4, 8, 18, 25 and 25A of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution ). In furtherance of the notices, the respondents submitted their report and parawise comments wherein they justified amendment in the Act, 1965. Since vires of Section 21(2) of the Act, 1965 were questioned so a notice in terms of Order XXVIIA of the Code of Civil Procedure (V of 1908) (hereinafter referred to as C.P.C. ) was also issued to the learned Attorney General for Pakistan, who is in attendance today and addressed the Court.

3. After having heard learned counsel for the petitioners and learned Attorney General for Pakistan, record has also been perused.

4. In order to regulate the qualifications and to provide for the registration of practitioners, Act, 1965 was promulgated. Section 2 of the Act, 1965 provides definition of various terms used therein and subsection (c) defines Homoeopathy as under:- (c) Homoeopathy means the Homoeopathic system of medicine, including the Bio-Chemic system of medicine, and Homoeopath means a practitioner of Homoeopathy, or Bio-Chemic System of Medicine; Subsection (k) of Section 2 of the Act, 1965 on the other hand provides definition of Unani and Ayurvedic System of Medicine , which reads as under:- (k) Unani and Ayurvedic System of Medicine means the Unani, Tib and Ayurvedic (including the Siddha) system of medicine, whether supplemented or not by such modern advances as the Council may, from time to time, determine; From the bare perusal of the definition clauses, noted hereinabove, it is manifestly clear that Homoeopathy and Unani Ayurvedic System of Medicine are undoubtedly two distinct phenomena.

5. Chapter II of the Act, 1965 deals with the teaching institutions and examinations and Section 17, being its part, provides mechanism for recognition of institutions imparting or desire to impart instructions in the Unani, Ayurvedic or Homeopathy System of Medicine according to the courses provided by the rules in terms whereof, petitioners were recognized as such. Section 21 of the Act, 1965 provides qualifications for admission to institutions, which for ready reference and convenience is reproduced below:-

21. Qualifications for admission to institutions. (1) The minimum qualifications required for admission to a recognized institution of Unani or Ayurvedic System of Medicine shall be Matriculation with Science or equivalent examination of any University or Education Board in Pakistan established by or under any law preference being given to those having higher qualification with Science and in the case of admission to an institution of Unani System of Medicine to a candidate having one or more of the following additional qualifications, namely: (a) Adeeb. (b) Adeeb Alim. (c) Adeeb Fazil. (d) Munshi. (e) Munshi Alim. (f) Munshi Fazil. (g) Molvi. (h) Molvi Alim. (i) Molvi Fazil. (2) The minimum qualification required for admission to a recognized institution of Homoeopathy shall be Matriculation with Science or equivalent examination of any University or Education Board in Pakistan established by or under any law but those with Intermediate or higher qualifications with Science shall be preferred. [Underlining supplied for emphasis] From the perusal of above referred provision of law, it becomes crystal clear that minimum qualifications required for admission to a recognized institution of Unani or Ayurvedic System of Medicine and Homoeopathy have been laid distinctly in subsections (1) and (2) of the Act, 1965, respectively.

6. As already observed that as per scheme of the Act, 1965 itself, Homeopathy and Unani or Ayurvedic System of Medicine are two different entities. Though initially, minimum qualifications for admission to recognized institutions of both was fixed as Matriculation with Science or equivalent examination of any University or Education Board in Pakistan but in the case of Unani or Ayurvedic System of Medicine, the preference was given to those having higher education with Science along with additional qualifications mentioned in subsection (1) of Section 21 of the Act, 1965 but for the admission in Homeopathy in terms of subsection (2) of Section 21 of the Act, 1965, preference was to be given to the candidates having intermediate and higher education with Science. Keeping in view the specific nature, the minimum qualifications required for admission to recognized institutions of Homeopathy, was, however, changed from Matriculation to Intermediate with Science (F.Sc. Pre-medical) or equivalent examination of any university or education Board in Pakistan established by or under any law for the time being in force but the candidates having Bachelor or higher education with science were given preference by introducing amendment through the Act, 2021.

7. Determination of qualifications for admission to institutions in any field is within the legislative competence of the government. The Act, 2021 was placed before the Majlis-e-Shura (Parliament) and after approval, it received assent of the President on 01st December, 2021. The amendment in subsection (2) of the Act, 1965 in no way offends any of the fundamental rights of the petitioners moreso, Article 18 of the Constitution as it in no way abridge the right of trade or profession of the petitioners embodied therein. The qualification so enhanced through the amendment is though directly related to the candidates willing to apply for admission in the institutions but none has come forward to challenge the vires of the same. There is no cavil that judiciary can examine the vires of legislation on the touchstone of the Constitution but the person throwing any challenge to the provisions of a statute is obliged to demonstrate that it either offends any of the fundamental rights or abrogate the provisions of the Constitution. Guidance to this effect, if needed, can be sought from Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802). The relevant extract from the same is reproduced below:-

13. It is well established by this Court, while considering the vires of a legislative enactment under its powers of judicial review, can consider not only the substance of the law but also the competence of the legislature. Further, though it is an accepted principle that no mala fide can be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute. The vires of a statute can also be determined on the ground that the legislation is colourable. In the instant case the only issue involved is the legislative competence of the Parliament vis- -vis the legislative authority of the Provincial legislature. In this regard it is to be noted that there is always a presumption in favour of the constitutionality of a legislative enactment unless ex facie it appears to be violative of any of the Constitutional provisions and in a case where two opinions with regard to the constitutionality of an enactment are possible, the one in favour of the validity of the enactment is to be adopted. Meaning thereby that when a law is enacted by the Parliament, the presumption lies that Parliament has competently enacted it (law), and if the vires of the same (law) are challenged, the burden always lies upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or the provisions of the Constitution. It is also a cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary for injudicious exercise of this power might well result in grave and serious consequences. Reliance in this regard may be placed upon the cases of Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582), Dr. Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499), Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD 2005 SC 719), Master Foam v. Government of Pakistan (PLD 2005 SC 373), Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq (PLD 2007 SC 133), Syed Aizad Hussain v. Motor Registration Authority (PLD 2010 SC 983), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), In re: Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829), M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. and others [(1992) 2 SCC 36], M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [(2006) 9 SCALE 652], Manish Maheshwari v. Asstt. Commissioner of Income Tax (AIR 2007 SC 1696), Bharat Petroleum Corpn. Ltd v. Maddula Ratnavalli and others [2007 (6) SCC 81] and also to the case reported as Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739). In the last mentioned case, this Court has held that "The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative." The Court after relying upon Cooley: "Treatise on Constitutional Limitations, Pages 159 to 186", H.M. Seervai: "Constitutional Law of India, Volume I, Pages 260 to 262", Mr. A.K. Brohi: "Fundamental Law of Pakistan, Pages 562 to 592", Mr. Justice Fazal Karim: "Judicial Review of Public Actions, Volume I, Pages 488 to 492", summarized the rules which must be applied in discharging the duty to declare laws unconstitutional, which read as under: - (a) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; (b) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (c) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (d) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; (e) The Court will not decide a larger constitutional question than is necessary for the determination of the case; (f) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; (g) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; (h) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; (i) Mala fides will not be attributed to the Legislature. Reference to the above effect can also be made to Abdullah Jumani and others v. Province of Sindh and others (2024 SCMR 1258).

8. So far contention of learned counsel for the petitioners that there is clear discrimination with the students, seeking admission in the Homeopathy as compared to the Unani or Ayurvedic System of Medicine; suffice to observe that both the fields are not similar and akin. Article 25 of the Constitution ordains that all citizens are equal before law and entitled to equal protection of law and also guarantees that there shall be no discrimination on the basis of sex but by now it is well entrenched principle that equality does not prohibit classification for differently placed persons. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. Right of equality of citizens is always founded on an intelligible differentia, which distinguishes persons or things that are grouped together from those, who have been left out. Right of equality is always to be weighed amongst equal in all respects and it is not necessary that every citizen shall be treated alike in all eventualities. Thus, in the light of clear distinction between qualifications for Homeopathy and Unani or Ayurvedic System of Medicine, the contention of learned counsel for the petitioners is highly ill-founded. Reference to the above effect can be made to Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687), Province of Punjab through Chief Secretary and another v. Samuel Bhatti and others (2009 SCMR 1034) and Government of The Punjab through Chief Secretary, Lahore and others v. Ch. Abdul Sattar Hans and 29 others (2015 SCMR 915).

9. The nutshell of above discussion is that the petitioners have failed to demonstrate that subsection (2) of Section 21 of the Act, 1965, in any manner, offends any of the provisions of the Constitution or it abridges any of the fundamental right guaranteed therein, as such this as well as connected petition is dismissed with no order as to costs. UN/J-8/L Petitions dismissed.