2022 PLP 502 (MLD)

RAZA ALI KHAN, J.

The captioned appeals by leave of the Court arise out of the judgment dated 26.2.2020, passed by the learned High Court of Azad Jammu and Kashmir in Writ Petitions Nos.2170 of 2018 and 805 of 2019. As both the appeals are outcome of the same judgment of the learned High Court, hence, were heard together and are decided as such.

2. The brief facts forming the background of the captioned appeals are that respondents, herein, in both the captioned appeals, challenged the condition for pre-registration examination for the registration as D-Pharmacists with the Pakistan Pharmacy Council, by filing two separate writ petitions before the learned High Court, on the ground that the said condition has been imposed without any legal backing. It was averred that the said condition has been imposed by the Pakistan Pharmacy Council and the Council has now issued a schedule for examination of students for their registration as Pharmacists. It was further averred that the Sindh High Court has set aside the condition for pre-registration examination and has directed the Council to grant registration to the petitioners, therein, within 60 days. A direction was also sought to the Pharmacy Council, appellant, herein, to register the petitioner-respondents as qualified Pharmacists on the basis of Pharm-D degrees granted by the University of Poonch. The learned High Court, after necessary proceedings, has accepted the writ petitions with a direction to the Pharmacy Council to register the respondents, herein, as qualified Pharmacists on the basis of Pharm-D Degrees granted by the University of Poonch. Feeling aggrieved from the said judgment of the learned High Court, the appellant, herein, has approached this Court for redressal of his grievance.

3. Mr. Sajid Hussain Abbasi, the learned Advocate for the appellants in both the appeals was directed to file written arguments, who has filed the same in compliance of the Court order. It was stated in the written arguments that the Pharmacy Council of Pakistan, has been established under section 3 of the Pharmacy Act, 1967, and under sections 17 and 18 of the said Act, it is mandatory for any institution desirous of starting Pharmacy Education to obtain N.O.C. from the Pharmacy Council of Pakistan but respondent No.18 (University of Poonch Rawalakot) unlawfully started pharmacy education without seeking the requisite N.O.C. It was further stated that the requisite N.O.C. was sought by the said University after initiating Pharm. D. Program, which was granted to it on the condition that the students admitted in the University prior to N.O.C. shall get registered through a pre-registration examination and the Institution has to pay the fine. It was further stated that respondents Nos.1 to 11, 14 and 16, in appeal No. 253 of 2020 and respondents Nos. 1 to 36, in appeal No. 254 of 2020 participated in the examination and on their failure, they filed the writ petition before the High Court with mala-fide intention, therefore, their writ petitions before the High Court were not competent. It is further stated that the writ petitions of the respondents, herein, before the High Court were also not maintainable on the ground that they have an alternate and efficacious remedy as they have further four chances to pass OTS examination and without availing the same they could not legally knock the extraordinary jurisdiction of the learned High Court. It was further stated that the Pharmacy Council is not performing any function in connection with the affairs of the Azad Jammu and Kashmir, therefore, according to the Constitution, the learned High Court had no jurisdiction to entertain the writ petition and pass any order against the Pharmacy Council of Pakistan as well. The learned Advocate further stated that the judgment of the learned Sindh High Court which has been relied upon by the learned High Court of Azad Jammu and Kashmir is not applicable to the case in hand as the same has its own peculiar facts and circumstances, but the learned High Court has erroneously accepted the writ petition while placing reliance on the said judgment. It was further stated that the objection raised on behalf of the respondents that Mohi-ud-Din Islamic Institute of Pharmaceutical Sciences, Mirpur, Azad Jammu and Kashmir and Akson College of Pharmacy Mirpur, Azad Jammu and Kashmir were given exemption to the students for pre-registration examination is not tenable as all the said Institutions have been written letters for payment of penalty fee, examination fee and date of the students for pre-registration examination. It was lastly prayed that while accepting the appeal the impugned judgment of the learned High Court dated 26.2.2020, may be set aside.

4. Conversely, Barrister Humayun Nawaz Khan and Muhammad Hanif Khan Minhas, the learned Advocates appearing for the respondents forcefully defended the impugned judgment of the learned High Court and argued with vehemence that the condition of pre-registration examination imposed by the Pharmacy Council Pakistan is without any statutory backing as well as in derogation of the judgment of the Supreme Court of Pakistan rendered in Civil Petition No. 596-K of 2018 dated 17.12.2018, hence, the same has rightly been set aside by the learned High Court through the impugned judgment. The learned Advocates further argued that the argument of the learned counsel for the appellant that the learned High Court had no jurisdiction to entertain the writ petition filed by the respondents, herein, is without any substance because the Pharmacy Council is running its business in the State and directly granting N.O.C. to Colleges and Universities in Azad Jammu and Kashmir, which directly affects the rights of the State Subjects of the Azad Jammu and Kashmir, therefore, the learned High Court is vested with jurisdiction conferred by the Interim Constitution, 1974, which has rightly been exercised by the learned High Court while handing down the impugned judgment. They further argued that some of the private respondents have got their admission in MS and near to complete their M.Phil degrees, but could not get jobs as the Pharmacy Council of Pakistan has not registered them so far without any legal justification, as such they have been deprived of their legal rights, therefore, the impugned judgment is quite in accordance with law, which warrants no interference by this Court. The learned Advocates further argued that the appellant has failed to point out any illegality or legal infirmity in the impugned judgment, therefore, the appeals filed by the appellants may be dismissed. 6(sic) Mr. Babar Ali Khan, the learned Advocate for the Akson College of Pharmacy was also directed to file written arguments, who through an application has requested to treat the concise statement filed on behalf of Akson College as the written arguments.

7. We have heard the learned Advocates representing the parties and have gone through the record of the case made available along with the impugned judgment of the learned High Court. A perusal of the record reveals that the respondents, herein, in both the appeals, filed two separate writ petitions before the High Court of Azad Jammu and Kashmir for setting aside the condition imposed by the Pakistan Pharmacy Council in relation to pre-registration examination for registration as D-Pharmacists with the Pakistan Pharmacy Council. The learned High Court consolidated both the writ petitions and through the impugned judgment dated 26.2.2020, while placing reliance on the judgment of the learned Supreme Court of Pakistan has accepted both the writ petitions and declared the condition as illegal and without any lawful authority and also directed the respondents, therein, to register the petitioners as qualified Pharmacists on the basis of Pharm-D Degrees granted by the University of Poonch, Rawalakot. The main argument of the counsel for the appellant is that the learned High Court has accepted the writ petition relying on such a judgment, which is not attracted to the case in hand because the facts and circumstances in the cited case are quite different than one in hand. The attested copy of the judgment relied upon by the learned High Court is available in the file. To clarify the situation, we have ourselves gone through the whole judgment of the learned Sindh High Court as well as that of the Supreme Court of Pakistan titled Pharmacy Council of Pakistan through its Secretary v. Zakir Khan and others (Civil Appeal No. 596-K of 2018 dated 17.12.2018). The controversy involved in the case was that the Federal Urdu University of Arts, Science and Technology, introduced Degree "D" Pharmacy (five years course) as a morning programme. Later on, the said University, on its own, started the same Degree course as an evening programme without obtaining N.O.C. from the Pharmacy Council of Pakistan. The Pharmacy Council took notice, however, finally the matter was resolved, as a result whereof, the University had to pay 4.8 million as fine and after the payment of the fine amount on behalf of the University, the students who had completed their 'D' Pharmacy course, were issued degrees, as such to this extent the matter was unanimously settled between the University and the Pharmacy Council. Subsequently, the Pharmacy Council while filing further comments in the High Court imposed condition of taking pre-registration/exit test from the students, which was struck down by the Sindh High Court vide judgment, dated 20.2.2018. This very judgment of the Sindh High Court was challenged before the Supreme Court of Pakistan through a petition for leave to appeal, which was dismissed and the judgment of the Sindh High Court was upheld. A perusal of the judgment of the learned Supreme Court of Pakistan reveals that the learned Supreme Court made a query to Advocate Supreme Court (ASC) for the petitioner that under what specific provision of Pharmacy Act of 1967, or the rules or regulations made thereunder, the Pharmacy Council is authorized to take pre-registration/ exit test from the students, who have completed their course of "D" Pharmacy in the evening programme to which learned ASC could not satisfy the Court. The relevant portion of the referred judgment is reproduced as under:- " We have asked the learned ASC for the petitioner to show any specific provision of law that of Pharmacy Act of 1967 or rules or regulations made thereunder authorizing the petitioner to obtain from the students, who have completed "D" Pharmacy Course such tests, the learned ASC while going through various papers and the law, could not cite before us any specific provision authorizing the petitioner to take pre-registration/exit test from the students, who have completed the course of "D" Pharmacy in the evening programme. In absence of any provision in the law authorizing the petitioner to take pre-registration/ exit test, the condition imposed by the petitioner upon the students, who have completed their "D" Pharmacy Course in evening programme from the said University appears to be based upon no authority of law and obviously of no legal effect " The above reproduced paragraph clearly reveals that, the moot point before the Courts was relating to the condition of pre-registration test from the students. In the case in hand the University of Poonch Rawalakot was imposed penalty for not obtaining the N.O.C. from the Pharmacy Council before initiating the programme, which was paid by the said University in form of instalments. Later on, the Pharmacy Council imposed a further condition of pre-registration examination for registration as D-Pharmacists, which was challenged by the respondents, herein, before the learned High Court and the learned High Court vide impugned judgment while accepting the writ petition has declared the said condition illegal. In our considered view, the facts and circumstances of the case in hand and that of the case relied upon by the learned High Court of the Azad Jammu and Kashmir while delivering the impugned judgment, are of similar nature. It may be observed here that Order XIII, Rule 2 and Order XVIII, Rule 6 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 recognize the judgments of the Supreme Court of Pakistan, hence, the principle of law enunciated by the Supreme Court of Pakistan shall be followed keeping in view the facts and circumstances of the case. This Court in the case reported as Riaz Ahmed v. Amin Beg and others [PLD 1978 SC (AJ&K) 161], observed as under:- "These observations of the Lordships of the Supreme Court of Pakistan apply to the facts of the present case with equal force. High Court of Azad Jammu and Kashmir in its judgment has often observed that the decisions of the Supreme Court have binding force on Courts in Azad Kashmir but it is regretted that some of the observations of their lordships of the Supreme Court of Pakistan have not been receiving due attention by the Azad Jammu and Kashmir High Court, which, on question of procedure, are very much Illuminative and provide a correct guidance." The same view was reiterated by this Court in the case reported as Ch. Muhammad Aziz v. Faisal Mumtaz Rathore and 15 others (2015 SCR 159) Thus, we are of the opinion that the ratio decidendi of the case referred to and relied upon by the learned High Court of Azad Jammu and Kashmir is fully applicable to the case in hand and the learned High Court while placing reliance on the same has committed no illegality or legal infirmity.

8. The contention of the learned counsel for the appellant that the learned High Court has no jurisdiction to entertain the writ petition and pass any order against the Pharmacy Council of Pakistan as the Pharmacy Council of Pakistan is not performing any function in connection with the affairs of the Azad Jammu and Kashmir, has no substance, as the proposition has already been resolved by this Court in the case reported as Ministry of Kashmir Affairs and Gilgit Baltistan and another v. Messrs Z.K. Associates (Pvt.) Limited and 4 others (2021 YLR 2337), wherein in para No. 8 of the report, it has been held as under: - "

8. Before proceedings further, we would like to take up the question of jurisdiction of the High Court of Azad Jammu and Kashmir, as has been raised by the learned Additional Attorney General. He submitted that the Federal Secretary, Ministry of Kashmir Affairs and Gilgit Baltistan is not performing functions in connection with the affairs of Azad Jammu and Kashmir, therefore, the High Court of Azad Jammu and Kashmir has got no jurisdiction to issue writ to him under Article 144 of the Azad Jammu and Kashmir Interim Constitution, 1974. This argument, in view of the scheme of the Constitution, in our considered view, has no substance in it. The question of jurisdiction has been considered by the superior Courts with regard to the issuance of writ to the Federal Government or the authorities located beyond the territories of Azad Jammu and Kashmir in various cases and it was resolved that the order passed by the Federation or the authorities even located beyond the territory of Azad Jammu and Kashmir which perform functions in connection with the affairs of the Azad Government of the State of Jammu and Kashmir or Council are amendable to the jurisdiction of the High Court of Azad Jammu and Kashmir." As the Pharmacy Council of Pakistan is a regulatory body in connection with affairs of education of D Pharma programme at University of Poonch, Rawalakot, hence, the learned High Court has got the jurisdiction to entertain the writ petition and to issue direction to the Pharmacy Council of Pakistan as well in light of the case law reproduced above, hence, the argument of the learned counsel for the appellant is hereby repelled. 8(sic) The appellants in both the appeals have failed to point out any illegality or legal infirmity in the impugned judgment of the learned High Court. The findings recorded by the learned High Court in the impugned judgment are quite in accordance with law, which warrants no interference by this Court. The upshot of the above discussion is that finding no force in these appeals, the same are hereby dismissed. No order as to costs. ZH/29/SC(AJ&K) Appeals dismissed.