P L D 2000 Azad J&K 1 (PLP)
SADIA AHMED DAR and 7 others‑‑‑Petitioners Versus AZAD JAMMU AND KASHMIR NOMINATION BOARD through Secretary, Muzaffarabad and 9 others‑‑‑Respondents
| Citation | P L D 2000 Azad J&K 1 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | SADIA AHMED DAR and 7 others‑‑‑Petitioners Versus AZAD JAMMU AND KASHMIR NOMINATION BOARD through Secretary, Muzaffarabad and 9 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in P L D 2000 Azad J&K 1 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2000 Azad J&K 1 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2000 Azad J&K 1 (PLP) (SADIA AHMED DAR and 7 others‑‑‑Petitioners Versus AZAD JAMMU AND KASHMIR NOMINATION BOARD through Secretary, Muzaffarabad and 9 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Raja Muhammad Hanif Khan for Petitioners.
- Abdul Rasheed Abbasi, A.G. and Ch. Muhammad Ibrahim Zia for Respondents.
- 4. The learned Advocate for the petitioner arguing the case contended that the nomination policy of 1986 does not authorise the Nomination Board to make any discrimination or allow any reservation of seats for male and female candidates. According to him, under the policy it is only the merit the candidates which is the criteria for nomination. The learned Advocate further contended that the candidates seeking nomination have to fulfil requirement of respective colleges for nomination and in all the colleges it is the merit of the candidates, not their sex, which is the basis of admission. The learned Advocate referred to the result of entry test held by Governments of Punjab and N.W.F.P. of the candidates belonging to Azad Kashmir wherein the list is prepared according to merit of the candidates irrespective of their gender. The learned Advocate also contended that the District‑wise quota is allocated under the policy to give proportional representation to State Subjects in all the units and that purpose can be achieved only if it is open to all the candidates of the District irrespective of their sex. He further contended that the discrimination on the basis of sex violates clauses (12), (15) and (17) of Fundamental Rights enshrined in the Constitution of Azad Kashmir. The learned Advocate in support of his contentions relied upon PLD 1990 SC 295; AIR 1960 (sic) 1125; AIR 1971 SC 1762; PLD 1990 Kar. 342 and PLD 1958 SC 298.
- 5. Mr. Abdul Rashid Abbasi, learned ‑ Advocate representing respondents 1 to 10 except No.9, objected to the maintainability of the petition on the ground that all the candidates for nomination are necessary party while the candidates belonging to Muzaffarabad District only have been arrayed as respondents on account of which the petition is liable to be dismissed. The learned Advocate drawing distinction between provisions of Fundamental Rights of Azad Kashmir Constitution and Constitution of Pakistan contended that the case‑law disallowing discrimination in admission to the medical colleges by the Supreme Court and High Courts in Pakistan is not applicable in Azad Kashmir as the provisions of Azad Kashmir Constitution are different than those of Pakistan, on account of which precedents of law of Pakistan jurisdiction do not apply to the nomination policy in Azad Kashmir. The learned Advocate referring to the record contended that the ratio of male and female students in co‑education colleges' and university is 5:3 or 5:4 and similar ratio is made applicable for nomination to M.B.,B.S. by the nomination Board. The learned Advocate further contended that the female candidates have been allocated due share keeping in view feeding cadre and geographical position of Azad Kashmir, where the female doctors cannot be posted in far flung areas which can be attended by male doctors only. He also contended that most of female doctors/candidates leave Muzaffarabad or Azad Kashmir after becoming doctors on account of marriage or other family compulsions hence the higher proportion of the seats is reserved for male candidates which is the requirement of the areas and justice. He argued that the criteria adopted by the Board is intelligible which does not create any discrimination. Arguing further he contended that if the nomination in practice is changed the seats reserved in the Fatima Jinnah Medical College cannot go to male candidates if the female candidates do not come up to the level in open competition and in that case, Azad Kashmir will be losing its 20 seats reserved in the college.
- 6. Mr. Ibrahim Zia, Advocate representing respondent No.9, contended that it is established practice of Nomination Board that only 24 female candidates are nominated and this practice is in field since long which has become rule by practice and the applications filed for nomination for the year 1999‑2002 shall be governed by this practice. The learned Advocate referring sections 3 and 31(3) of the Constitution and sections 3 and 9 of Enforcement of Shariat Act, 1989, contended that the Court is to adopt interpretation which is nearer to Islamic Injunctions. On the basis of this argument the learned Advocate contended that subsection (6) of Fundamental Right No. 12, authorises the public authority to make provisions for advancement of any society or educationally backward class of State Subjects. The learned Advocate stressed that the male gender in the society is to be given preference over female as it is the male gender which is responsible for food and shelter of female in Islam. Mr. Ghulam Mustafa Mughal, Advocate who assisted the Court on the request contended that as the nomination policy is not challenged in the petition, therefore, no finding can be given against the nomination policy. Supporting the Advocate for the respondents he contended that the practice adopted by the Board is not in conflict with the Constitution. The learned Advocate appearing for respondent relied upon PLD 1980 SC (AJ&K) 5; 1997 SCMR 1804; 1995 SCMR 334; PLD 1987 (sic) 77; AIR 1962 SC 26 and 1998 SCMR 1469.
- 16. Mr. Abdul Rashid Abbasi the Advocate for respondents 1 to 10 except 9, however, vehemently contended that the above‑referred authorities from Pakistan jurisdiction do not apply to the case in hand in view of different Constitutional provisions of Pakistan and Azad Kashmir Constitution though, he agreed with the principle of law laid down thereunder. His contention is that the Constitution allows special treatment for backward class therefore, separate allocation of seats for female and male is not unconstitutional, in the absence of special treatment for women like clause (2) of Article 25 of Pakistan Constitution. To appreciate his contention relevant provisions of both the Constitutions are reproduced:
- give comfort to the men, keep and maintain homes; in short, except fighting at borders women are capable of doing everything which a man can do. It is in this background that the above two extra clauses are added to Article 25 of Pakistan Constitution. Preference or edge if any, under Constitution and law is conceivable, that is for women not against them as suggested by the learned counsel for respondents. The argument of the learned counsel that the word "sex" is missing in section 4(12)(3) of Azad Kashmir Constitution which is corresponding to Article 22(3)(b) of Constitution of Pakistan and it is prominent in Article 25 of Pakistan Constitution but absent in section 4(15) of Azad Kashmir Constitution, hits him back as the right to equality is unqualified in Add Kashmir Constitution while it is qualified in Pakistan Constitution and that qualification is also in favour of women. Without dilating further on this point of distinction, it would be worth while to reproduce here paras., 17 and 20 from Shrin Munir's case PLD 1990 SC 295, where a similar argument was raised:
- 19. Further argument of the learned ‑Advocate for the respondents that ratio of. the female students in the co‑educational institutions of Azad Kashmir is also 3:4 and 4:5, thus, the same ratio is adopted for nomination for M.B.B.S. cannot be ‑accepted for the‑ reason firstly that the ratio is against the spirit of nomination policy, secondly, because it is arbitrary and discriminatory and; thirdly that a particular ratio in one co‑educational institution does not justify adopting the same for the other. His argument that keeping in view the feeding areas and geographical position of Azad Kashmir, the seats allocated to the female have to be less, is also devoid of force for the reason that women comprise half of the population spread all over Azad Kashmir. It is the failure of administrative set up or lack of facilities, that too is administrative failure which may 'present the women from attending the far flung areas. Why can't lady doctors sit at Leepa, Kail; Abbaspur or similar other stations when those areas are inhabited by the similar gender? The difficulty is genuine, but cannot thwart the mandate of Constitution. Administration is to assert for it meritorious girls should not suffer for that. Another argument of the learned counsel that the female candidates after becoming doctors leave Muzaffarabad or Azad. Kashmir on account of marriage or other exigencies is equally against the logic. Even the male doctors leave Azad Kashmir in the hope of good fortune or similar exigencies. It is the right of meritorious female of a unit to be‑nominated for E higher education, where does luck take her thereafter, is not the concern of Nomination Board. It has to perform its duties within the policy of nomination not to judge the destination. Remedy, is provided for that eventuality as well in Rule 5 of the Policy i.e. the selected candidates shall have to serve in Azad Kashmir for five years and are bound to give a bond for that. In case of its violation, the action under law can be taken against them.
- 21. Chaudhry Muhammad Ibrahim Zia learned Advocate for the respondent No.9 contended that in the Islamic society like ours the law is to be interpreted in a manner that it advances the principles of Islam and Islamic society, where under it is the male gender which has the upper hand in the society who is responsible for food and shelter of women. He argued the verse of Quran. (-----) He also contended that the allocation of 24 seats for female candidates is long standing practice which has become the rule and it cannot be challenged without hearing the parties likely to be effected by the change.
- 22. I quite agree with the learned counsel Mr. Ibrahim Zia that all the laws must be interpreted by the Court in the light of Islamic principles, and the interpretation which is nearer to Islam must be adopted. Same is the requirement of sections 3 and 9 of Enforcement of Shariat Act, 1989 and section 3 of the Constitution. But I regret to agree with the interpretation that preference of male over the female advances the cause of Islam and that it is nearer to Islam the learned Advocate placed reliance on section 4(12)(6) of the Constitution of Azad Kashmir in advancing this argument, the relevant 'provision is as follows:‑
- 32. The argument of the learned Advocate for the petitioner carries weight that the nomination policy does not visualise any discrimination nor authorise the Nomination Board to nominate the candidates on the basis of l sex. It in fact obliges the Board to prepare the list of candidates on merit' from each unit irrespective of the sex of the candidates. Rule 13 of the Policy is self‑speaking that the selection against the reserved seats of every district l shall be made on the basis of merit. The word 'candidate', 'merit', and 'district' are of significance which have no other connotation that the selection on merit irrespective of sex. This is further strengthened by Rule 11 of the Policy which specifically states that the criteria of selection shall be the same as applicable to the medical colleges to which the nomination/admission is to be made. The prospectus of the medical colleges placed on record unequivocally observe the merit policy irrespective of sex.
- 34. The practice of discriminatory allocation of seats is in vogue since 1986 or even before that. The female candidates as stated in the pleadings by the petitioners have been leading in merit as against boys, but for the arbitrary exercise of discretion by the Nomination Board, they are all along deprived of the right to be nominated on merit. The argument of the learned counsel for the respondents that as the practice is being repeatedly followed it has become rule could be gladly accepted had it not been against the express nomination policy or had it been a fair or just practice. A wrong and unjust practice, however, long it may be, remains wrong and has to be stopped when challenged. Another argument of the learned counsel for respondents that, it is not the girls who always lead, boys also have been leading and they are on better merit in the entry test held by the Punjab is the sound reason for holding that fair chance of competition will bring the best result and best lot for the nation. Fair and open competition will pave the way for hard work and inculcate the spirit of competition in youth thereby creating the academic culture; it will remove the frustration and general impression of political interference in making selection. Nobody can complain if only boys lead in entry test as against girls. The argument that in case boys only top the list twenty female seats of Fatima Jinnah Medical College, Lahore and four of Ayub Medical College will be lost by Azad Kashmir as Fatima Jinnah Medical College is for girls exclusive and 20% seats of Ayub Medical College are for girls, is attractive, but not without answer. The void in such a situation if it ever arises, can be filed by nominating first 39 boy candidates to co‑educational institution and rest of the 24 of the girls who qualify criteria of the concerned colleges. Ayub Medical College is also a co educational institution. Authorities of Azad Kashmir can take up this case with them to keep all the seats reserved for Azad Kashmir open on merit to enable the boys or girls whoever merit high in the merit list to be nominated by Azad Kashmir Nomination Board. If this vacuum occurs in a unit of nomination, mechanism is provided in the policy of nomination under Rule 13 to tackle it. And in case the girls are on the top there will be no question of losing the female seats in Fatima Jinnah Medical College or Ayub Medical College. Nomination on merit without discrimination of sex in co‑educational institutions shall have to continue till exclusive institutions are established for each sex in the country.
Headnotes / Summary
Ss. 3 & 4‑‑‑All the laws were required to be interpreted by the Courts in the light of Islamic principles and the interpretation adopted had to be nearer to Islam‑‑‑Contention that preference of male over the female advanced the cause of Islam and that same was nearer to Islam was repelled‑‑‑Islam or Islamic way of life was for all men and women equally availing all the opportunities of life was the right of every Muslim whether man or woman.
Judgment & Decree
21. Chaudhry Muhammad Ibrahim Zia learned Advocate for the respondent No.9 contended that in the Islamic society like ours the law is to be interpreted in a manner that it advances the principles of Islam and Islamic society, where under it is the male gender which has the upper hand in the society who is responsible for food and shelter of women. He argued the verse of Quran. (
) He also contended that the allocation of 24 seats for female candidates is long standing practice which has become the rule and it cannot be challenged without hearing the parties likely to be effected by the change.
22. I quite agree with the learned counsel Mr. Ibrahim Zia that all the laws must be interpreted by the Court in the light of Islamic principles, and the interpretation which is nearer to Islam must be adopted. Same is the requirement of sections 3 and 9 of Enforcement of Shariat Act, 1989 and section 3 of the Constitution. But I regret to agree with the interpretation that preference of male over the female advances the cause of Islam and that it is nearer to Islam the learned Advocate placed reliance on section 4(12)(6) of the Constitution of Azad Kashmir in advancing this argument, the relevant 'provision is as follows:‑ "4(12)(6): Nothing in this paragraph shall prevent any public authority from making provision for the advancement of any society or educationally backward class of State Subjects."
23. It authorises the authority for making provision for the advancement of the society, a backward class of State Subjects, not to retard it, suppress it pr put into dark age or illiteracy. The accepted fact till today is, that it is the womenfolk which is backward on account of poverty, illiteracy, lack of civic education and cultural traditions etc. It is they who need protection against exploitation. Administrative and legislative actions are required for their advancement, not the other way round.
24. Islam is a religion of high moral culture, human dignity, respect and reverence for all particularly weak sections of the society i.e. women and 'child. Men are responsible for catering with the needs of women. It is in this context that the Verse of Holy Quran that (
) is ordained. But it does not mean that women cannot cater for it or that they are non‑entity as far as the social life is concerned. Islam or Islamic way of life is for all men and women equally and availing all the opportunities of life is the right of every Muslim whether men or women. The message is for all equally. God Almighty in various verses of Quran orders so. The equality between male and female is evident from, following a few out of many Verses of Holy Quran. Al‑Nisa: "
1. O mankind! Be careful of your duty to your Lord Who created you from a single soul and from it created its mate and from them twain hath spread abroad a multitude of men ‑and women. Be careful of your duty toward Allah in Home ye claim (your rights) of one another, and toward the wombs (that bare you). Lo! Allah hath been a Watcher over you." Al‑Hajrat:
13. O mankind! Lo! We have created you male and female, and have made you nations and tribes that ye may know one another. Lo! The noblest of you 3 in the sight of Allah, is the best in conduct. Lo! Allah is Knower, flare.
71. And the believers, men and women, are protecting friends one of another; they enjoin the right and forbid the wrong, and they establish worship and they pay the poor‑due, and they obey Allah and His messenger. As for these, Allah will have mercy on them. Lo! Allah is Mighty, Wise."
25. The right to equal opportunities of life and liabilities is ordered in the following, a few out of many verses of Quran: AI‑Nisa 32:
32. And covet not the thing in which Allah hath made some of you except others. Unto men a fortune from which they have earned, and unto women a fortune from that which they have earned. (Envy not one another) but ask Allah of His bounty. Lo! Allah is ever Knower of all things. Al‑Anaam 164:
164. Say: Shall I seek another than Allah for Lord, when He is Lord of all things? Each soul earneth only on its own account, nor Both any laden bear another's load. Then unto your Lord is your, return and He will tell you that wherein ye differed. ‑
26. The mandate to acquire knowledge is ordained in the following a few out of many verses of Quran; Al‑Baqra 129: Our Lord! And raise up in their midst a messenger from among them who shall recite unto them. Thy revelations, and shall instruction in the scripture and in wisdom and shall make them grow. Lo! Thou, only 'Thou! Art the Mighty, Wise? Al‑Touba 122: And the believers should not all go out to fight. Of every troop of them, a party only should go forth, and they (who are left behind) may gain sound knowledge in religion, and that they may warn their folk when they return to them, so that they may be:" Al‑Mujadila 11: O! Ye who believe! When it is said, Make room in Assemblies then make room; Allah will make way for you (hereafter). And when it is said Come up high, go up higher; Allah will exalt those who believe among you, and those who have knowledge, to high ranks. Allah is informed of what he do.' AI‑Anfaal 22: Lo! The worst of beasts in Allah's sight are the deaf, the dumb who have no, sense."
27. There are numerous sayings of Holy Prophet (p.b.u.h.) on the subject. I may quote only a few out of these:
28. I may quote here with respect to Hon'ble Justice Tanzil‑ur‑Rehman (as his lordship then was) the following paras from the case reported as Miss Farhat Jaleel and others v: Province of Sindh and others (PLD 1990 Kar. 342): "
22. We may, however, add that Islam is the greatest exponent of equality before law. The famous Hadith of the Holy Prophet (Allah's blessings be on him) is very significant in this respect, when he said, 'It was the usual practice in the past that if ordinary person 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. Hamid Ullah, 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: ‑‑ '
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 woman in Islam is a sui juric. She can acquire ‑and own property exclusively to herself. She can buy and sell the property in her own right. In fact, she has complete independent character in this 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 Quran 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, 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 womb (That bore you) for God Even watches over you The women whose womb bears that 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, 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 Fiqah, and the jurists in certain matters relating to inheritance, evidence etc. with which we are not presently concerned) The Holy Quran 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 II, 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 (
), 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."
29. Though the Constitutional points in dispute in the above‑referred authorities from the Pakistan jurisdiction are not involved in this case as the nomination policy does not visualise or authorise discrimination on the basis of sex in nomination nor is that challenged, but Nomination Board actually acts discriminatorily and treats the male and female candidates unequally in nomination since long, which in fact is practised as a rule. The principles of law laid down in the above‑referred authorities, therefore, caters the case in f hand to disband the arbitrary and discriminatory rule of practice adapted by Azad Kashmir Nomination Board.
30. None of the following authorities referred by the learned counsel for the respondents is directly, applicable to the case in hand on merits: In 1997 SCMR 1804 (Government of N.W.F.P. v. Merjee Floor and General Mill (Pvt.) Limited). A Notification of the N.W.F.P. was declared as ultra vire of the law and discriminatory. In PLD 1980 SC(AJ&K) 5: Besides setting the judgment of High Court in a service matter in view of bar of section 47 of the 'Constitution the principles and extent of scope of permissible classification are laid down. In 1995 SCMR 334 (Miss Sakina Begum v. Selection Committee for Bolan Medical College): Where question of discrimination in not granting exemption for not studying in Balochistan was involved. It was held that in order to make a case of discrimination it must be shown that the parties were placed in same position/situation but they were treated differently. In 1998 SCMR 1469 (Miss Hina Javed and others v. Government of N.‑W.F.P.) entry test as a requirement for admission was challenged in the High Court which was upheld and Supreme Court also upheld the order: In AIR 1962 SC 26 (General Manager, Southern Railway v. Rangachari) A circular of the Railway Board ordering reservation of selection post in the railway service in favour of the members of the scheduled castes and tribes is held as not discriminatory and against Article 16(4) of Indian Constitution.
31. No seat is reserved for any class tinder policy of nomination Board, hence it is not the policy, but the act of the Board, which is discriminatory; and against equal treatment, thus, none of the above authorities is applicable. In almost all the above‑referred cases vires of legislation were called in I question, while the nomination policy is not under challenge in this case
32. The argument of the learned Advocate for the petitioner carries weight that the nomination policy does not visualise any discrimination nor authorise the Nomination Board to nominate the candidates on the basis of l sex. It in fact obliges the Board to prepare the list of candidates on merit' from each unit irrespective of the sex of the candidates. Rule 13 of the Policy is self‑speaking that the selection against the reserved seats of every district l shall be made on the basis of merit. The word 'candidate', 'merit', and 'district' are of significance which have no other connotation that the selection on merit irrespective of sex. This is further strengthened by Rule 11 of the Policy which specifically states that the criteria of selection shall be the same as applicable to the medical colleges to which the nomination/admission is to be made. The prospectus of the medical colleges placed on record unequivocally observe the merit policy irrespective of sex.
33. The result of entry test conducted by Punjab and N.W.F.P. also supports the contention, that the merit list of all the candidates is joint. When all these are read together and in juxtaposition to each other, the irresistible conclusion is that whoever stands higher in the merit from each unit shall be nominated and entitled to admission against the seats reserved for that unit with the exception that 20 female candidates out of the merit list shall be nominated to Fatima Jinnah Medical College as it is exclusively a female institution and 4 to Ayub Medical College as 20% of the total seats are reserved for female in that college by the Government of Pakistan. And if the number of the female candidates exceeds twenty‑four and they proceed in merit to male candidates they have a right to be nominated to the other co educational colleges against the seats reserved in these colleges for Azad, Kashmir. Any other interpretation of the policy or action by the Nomination Board would definitely be against the equality clause of the Constitution and discrimination against the female, thus, violative of fundamental rights. The learned counsel for the petitioner has rightly relied upon the cases of Mussarat Uzma Usman and others v Government of Punjab (PLD 1987 Lah. 178); Shrin Munir and others v. Government of Pakistan (PLD 1990 SC 295) and Miss Farhet Jaleel and others v. Province of Sindh (PLD 1990 Kar. 342) whereby the relevant rules of the Prospectus of the Punjab and Sindh Medical Colleges in so far as they discriminated admission to Medical Colleges on the ground of sex are declared against the Constitution. The learned counsel has referred many other authorities in support of his contention but above being most relevant and apt are respectfully followed.
34. The practice of discriminatory allocation of seats is in vogue since 1986 or even before that. The female candidates as stated in the pleadings by the petitioners have been leading in merit as against boys, but for the arbitrary exercise of discretion by the Nomination Board, they are all along deprived of the right to be nominated on merit. The argument of the learned counsel for the respondents that as the practice is being repeatedly followed it has become rule could be gladly accepted had it not been against the express nomination policy or had it been a fair or just practice. A wrong and unjust practice, however, long it may be, remains wrong and has to be stopped when challenged. Another argument of the learned counsel for respondents that, it is not the girls who always lead, boys also have been leading and they are on better merit in the entry test held by the Punjab is the sound reason for holding that fair chance of competition will bring the best result and best lot for the nation. Fair and open competition will pave the way for hard work and inculcate the spirit of competition in youth thereby creating the academic culture; it will remove the frustration and general impression of political interference in making selection. Nobody can complain if only boys lead in entry test as against girls. The argument that in case boys only top the list twenty female seats of Fatima Jinnah Medical College, Lahore and four of Ayub Medical College will be lost by Azad Kashmir as Fatima Jinnah Medical College is for girls exclusive and 20% seats of Ayub Medical College are for girls, is attractive, but not without answer. The void in such a situation if it ever arises, can be filed by nominating first 39 boy candidates to co‑educational institution and rest of the 24 of the girls who qualify criteria of the concerned colleges. Ayub Medical College is also a co educational institution. Authorities of Azad Kashmir can take up this case with them to keep all the seats reserved for Azad Kashmir open on merit to enable the boys or girls whoever merit high in the merit list to be nominated by Azad Kashmir Nomination Board. If this vacuum occurs in a unit of nomination, mechanism is provided in the policy of nomination under Rule 13 to tackle it. And in case the girls are on the top there will be no question of losing the female seats in Fatima Jinnah Medical College or Ayub Medical College. Nomination on merit without discrimination of sex in co‑educational institutions shall have to continue till exclusive institutions are established for each sex in the country.
35. The God Almighty and his Prophet give all those rights to female which are enjoyed by men in. social life and no discrimination is accepted in this behalf. Unless a field of life is specifically prohibited by the Almighty or his Prophet (p.b.u.h) that is open to the female as well. Even responsibilities of social, economic and cultural life which are traditionally undertaken by the men can be adopted and undertaken by the women as well, if they possess the capability, quality, qualification, calibre, courage and determination required for the responsibilities, of course, subject to up keeping the Islamic behaviour and requirements of Pardah. We have the examples of Hazrat Aiyshah (r.a.t.a.) who lead the war of Jammal and Hazrat Khudeja (r.a.t.a) who was a renowned trader.
36. The medical profession is the only out of mutli‑dimensional professions in the society which is most befitting the women. It requires humbleness, patience, dedication, devotion, sympathetic attitude, kindness and tenderness which is imbedded in a female by nature. In our society especially where the army, police, business, engineering and all the public sector jobs are occupied by the men; it will not only be against the Constitution, law and justice but will be duel to deprive the girls of even the chance of fair competition and nomination, if they at all beat the boy candidates on merit. Public office is a trust and it has to be given to one who is most suited for it. God. Almighty in verse No.58 of Sura Al‑Nisa ordains: Lo! Allah commandeth you that ye restore deposits to their owners and if ye judge between mankind that ye judge justly. Lo! Comely is this which Allah admonisheth you. Lo! Allah is ever Hearer, Seer. The Holly Prophet (p.b.u.h.) said:
37. In view of what has been discussed above; it is declared that the action of the Nomination Board denying the petitioners' equality before law and equal protection of law and discrimination on the ground of sex in competing for the nomination/admission on open merit in co‑educational medical colleges of Pakistan, is contrary to Constitution. The Nomination Board is directed to act in accordance with what is stated above. No order as to costs in view of the circumstances of the case. M.B.A./3/AJK Petition accepted.