The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Tanzil-ur-Rehman, Actg. C J.—

(a) Constitution of Pakistan (1973), Art. 3, 8, 25, 22, 37, 29, 40, 189, 199, 2A & Preamble.

The contention of Mr. Obaidur Rahman that the “1st 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 and even after selection, the admission to be remained as provisional for some time. [p. 358] K

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 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 no simply y taking the words and the dictionary, but by considering their origin and the line of their growth”.

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.

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 along with the other provisions of the Constitution. [p. 358] L & M.

“At the outest it should be sated 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 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….” [p. 359] N.

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. [p. 361] T.

Order accordingly.

Advocate for the Petitioners (in C.Ps. Nos.D-168 to D-170, D-241 of 1990)

Hyder Raza Naqvi .

Advocate for the Petitioner (in C.P. No.D-176 of 1990).

A. Ghaffar Siddiqui.

Advocate for the Petitioner (in C.P.No.D-206 of 1990).

Mrs. Rasheeda Patel.

Advocate for the Petitioner (in C.P. No. D- 225 of 1990).

Abu Tahir Muhammad.

Advocate for the Petitioners (in C.P. No. D-258 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.P. No. D-265 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.Ps. Nos. D-274 to D-278) of 1990)

Obaidur Rahman and Muhammad Tasnim.

Advocate for the Respondents (in all Civil Petitioners).

Abdul Hafeez Lakho A. -G.

Date of hearing: 28th and 29th March, 1990.