 
 
“The right to dissent is the only thing that makes life tolerable 
for a judge of an appellate court.” 
- Justice William O. Douglas  
 
MAQBOOL BAQAR, J,- Brought under challenge 
through various constitution petitions before the Sindh High 
Court, was the transfer/devolution of three different entities, 
namely, 
Jinnah 
Postgraduate 
Medical 
Centre 
(JPMC), 
National Institute of Child Health (NICH), and National 
Institute of Cardio Vascular Diseases (NICVD), by and from 
the Federal Government to the Province of Sindh. It was 
submitted that the transfer/devolution, was ultra vires the 
Constitution 
of 
Islamic 
Republic 
of 
Pakistan, 
1973 
(‘Constitution’) as the three entities were federal institutes of 
the nature as described by Entry No. 16 of Part-I of the 
Federal Legislative List (FLL) of the Constitution. Entry No. 16 
reads as follows: 
“16. Federal agencies and institutes for the following 
purposes, that is to say, for research, for professional 
or technical training, or for the promotion of special 
studies.” 
 
2. 
 
The genesis of JPMC lies in Medical Corps 
Hospital, established in the year 1930 to provide medical aid 
to the military personnel during World War-II. In the year 
1947, it was a 100 bed hospital with all basic facilities. After 
independence the hospital was renamed, Pakistan Central 
Hospital and subsequently as Jinnah Central Hospital 
(“JCH”). In April 1953 an institute, namely Basic Medical 
CA 125-K/2016 etc.  
2 
 
 
 
 
Science Institute (“BMSI”), was established in a building 
situated at the site of JCH. In the year 1959 JCH and BMSI 
were amalgamated to create JPMC. Upto this point in time 
Karachi was the Capital of Pakistan. On 01.07.1959 the West 
Pakistan Administration, (merger of the federal territory of the 
Karachi) Order 1961, (Presidential Order No. 9 of 1961), came 
into effect; Karachi was thus merged into the province of West 
Pakistan, and ceased to be the capital of Pakistan. From this 
date onwards, Karachi fell under the legislative and 
administrative domain of the province. 
 
3. 
 
Mr. Raza Rabbani, learned ASC for the appellants 
in Civil Appeal No.2307/2016, submitted that being a 
hospital was the primary function of JPMC, NICVD and NICH. 
The learned ASC submitted that JPMC and its derivatives, 
being NICVD and NICH, could not be treated as entities 
falling within Entry No. 16 of the FLL, merely due to some of 
their functions, which were incidental and ancillary to the 
main functions of being a hospital, supposedly falling within 
the scope of the said entry. Mr. Rabbani submitted that 
“health” and “hospitals” have always been in the exclusive 
domain of the province, and any exception in that regard, if 
ever intended, was specifically so provided for through a 
separate and distinct entry. By way of illustration, he referred 
to Entry No. 19 of Part-I of the FLL, which specifically 
CA 125-K/2016 etc.  
3 
 
 
 
 
provides for “Seamen’s and Marine hospital and hospitals 
connected with port quarantine”, and to Entry No. 23, of the 
former concurrent list, which pertains to “places for the 
reception or treatment of the mentally ill and mentally 
retarded”. However, the learned counsel emphasized that 
hospitals in general neither found place in the federal list, nor 
had they been on the concurrent list, and were thus 
exclusively in the provincial domain. In his endeavour to 
demonstrate that the subject entities were nothing but 
general hospitals, the learned counsel referred to various 
documents/material, highlighting the various aspects of the 
said hospitals. He emphasized that if at all there were any 
activities which may at all be perceived as pertaining to 
“research”, the same were entirely incidental and ancillary to 
the institutes’ primary function of being a hospital, and 
nothing more.  
 
4. 
 
The learned counsel referred to the prospectus of 
the JPMC and submitted that the overwhelming majority of 
its various departments are those of a hospital and only a few 
relate to research based activities. He referred to the “quality 
and research based ranking of Pakistan High Educational 
Institutes (HEI) issued/ published by the Higher Education 
Commission of Pakistan (HEC) (page 371-374, Part-II CMA 
15/19), to show that none of the said hospitals/ institutes 
CA 125-K/2016 etc.  
4 
 
 
 
 
find any place therein. The learned counsel submitted that 
the hospitals/institutes are also not mentioned in the list of 
“Research Institutes in Pakistan” posted at the website of 
ILM.com.pk, 
which 
according 
to 
him 
is 
the 
biggest 
educational portal in Pakistan (page-366, Part-II, CMA 
15/19). According to the learned counsel, the research 
activities attributed to JPMC in its own publication/booklet, 
titled “JPMC- A National Pride” (pages 290-297, Part-II CMA 
15/19), are the compilation of medical research, management 
of medical library and publication of a medical journal titled 
“Annals of JPMC”. The booklet admits that “the response of 
local researchers to submit papers in Annals of JPMC is 
lukewarm, may be due to non-recognition of Annals with the 
PMDC”. 
 
5.  
 
Mr. Rabbani while concluding his arguments 
reiterated that JPMC and its derivative units had previously 
been under federal control; not because they were research 
institutes 
or 
because 
the 
federation 
has 
legislative 
competence over “health” and “hospitals” in general, but 
simply because Karachi had been the federal capital after 
independence; where the constituent elements of JPMC were 
set up. Elaborating his arguments Mr. Rabbani submitted 
that in relation to the federal capital territory, the federation 
has always had plenary power i.e. it could legislate in respect 
CA 125-K/2016 etc.  
5 
 
 
 
 
of matters exclusive to the federation, and concurrent, as well 
as those otherwise exclusive to the provinces within their 
respective territories. The province obviously could not 
legislate in respect of the federal capital territory and it was 
solely for this reason that the federation had been able to set 
up the constituent units of JPMC, and to exercise control over 
them. However, with the passage of time Karachi ceased to be 
the federal capital and became part of the erstwhile province 
of West Pakistan, and subsequently the Province of Sindh. 
The federation, therefore, ceased to have any competence or 
power over JPMC, and it ought to have been transferred to 
the province. The transfer however did not take place, and 
JPMC continued to remain under the federal control, which 
certainly was against the mandate of the constitution. The 
correction came about only at the time the various ministries, 
departments 
and 
organizations 
were 
being 
devolved/ 
transferred 
in 
pursuance 
of 
the 
18th 
Constitutional 
Amendment. The subject transfer, according to Mr. Rabbani, 
was no more than a long deserved factual recognition and 
regularization of a situation that had in law, come about 
decades ago. 
 
6. 
Mr. Farooq H. Naek, Senior ASC appearing for the 
Government of Sindh in Civil Appeals No. 125-K to 131-
K/2016, at the very outset submitted that the present dispute 
CA 125-K/2016 etc.  
6 
 
 
 
 
is a dispute between the Federal Government and the 
Province of Sindh.  As such, he submitted that only the 
Supreme Court was competent to adjudicate the dispute and 
the judgment rendered by the High Court is liable to be set 
aside for want of jurisdiction. He argued that the Honourable 
Sindh High Court in its impugned judgment had conclusively 
determined three issues; (1) that the three institutions do not 
fall under Entry No. 11 and 12 of Part II of the FLL, (2) that 
the institutions fall under Entry No. 16 of Part I of the FLL, 
and (3) that the transfer of the hospitals to the Province of 
Sindh was unauthorized and untenable because they had no 
relationship with the concurrent list which was abolished and 
entries whereof were devolved to the provinces under Article 
270AA (8) of the Constitution. The learned Senior ASC 
submitted that the subject of public health was never a part 
of the Federal or concurrent list but the same has throughout 
our history vested exclusively in the provinces. Resultantly, 
the devolution/transfer of the hospitals to the Province was in 
view of the fact that the Federal Government could not 
legitimately exercise any executive authority over a hospital in 
any of the provinces in the face of inter alia, Articles 142(c) 
and 137 of the Constitution. 
 
7. 
 
Mr. Salman Talibuddin learned Advocate General 
Sindh recapitulated the submissions advanced by M/s. Raza 
CA 125-K/2016 etc.  
7 
 
 
 
 
Rabbani, ASC and Farooq H. Naek, Sr ASC. Additionally, he 
argued that the JPMC ought to have been transferred to the 
Province of Sindh when the capital was moved from the city of 
Karachi and when the city resultantly became part of the 
Province of West Pakistan. To substantiate his view, he relied 
on Article 231(1) of the Constitution of 1956 which stipulated 
as follows:  
“All property and assets which immediately 
before the Constitution day were vested in Her 
Majesty’s for the purposes of the Federal 
Government shall, as from that day, vest in the 
Federal Government, unless they were used for 
the purposes which on the Constitution Day 
became purposes of the Government of a 
Province, in which case, they shall, as from that 
day, vest in the Provincial Government.”  
 
8. 
 
The learned Advocate General also submitted that 
similar provisions were inserted in subsequent constitutional 
documents. Article 232(1) of the Constitution of 1962, Article 
284 of the Interim Constitution of 1972 as well as Article 274 
of the Constitution of 1973 are in para materia to Article 231 
in the Constitution of 1956. Transferring or devolving the 
hospitals to the Province of Sindh he argued, was therefore 
righting a wrong that should have long been rectified. The 
Learned Advocate General also argued that decentralization 
was the sina qua non for heterogeneous countries like 
Pakistan where large segments of the citizenry remain 
CA 125-K/2016 etc.  
8 
 
 
 
 
marginalized 
by 
the 
centralist 
and 
patronage-based 
governance mechanism. 
 
9. 
 
Mr. Salahuddin Ahmed, ASC for the Jinnah Sindh 
Medical University (‘JSMU’) in Civil Appeals 2306/2016, 
echoed the arguments advanced by Mr. Raza Rabbani. 
Recounting the Constitutional history of Pakistan, he 
submitted that the subject of public health and hospitals has, 
throughout our history, vested in the provinces, sometimes by 
way of an entry in the provincial list and sometimes by 
consigning it to the realm of residuary subject. He further 
submitted that neither the Province of Sindh nor the Federal 
Government assailed the transfer/devolution of the said 
hospitals before the Sindh High Court. He contended that in 
the absence of any objections by the Federal Government or 
the Province of Sindh, the employees working in these 
hospitals did not have the locus standi to challenge the 
transfer/devolution. While maintaining that the hospitals did 
not fall under the rubric of Entry No. 16 of the FLL, he 
contended that the Federal Government was vested with the 
power to transfer the hospitals under Article 173 of the 
Constitution, even if the said hospitals were considered to fall 
within the said entry. The mere fact that the notification of 
transfer does not refer to Article 173 could not preclude the 
Federal Government from exercising its powers under the said 
CA 125-K/2016 etc.  
9 
 
 
 
 
Article. He submitted that what has to be considered is 
whether the Federal Government had the power to transfer 
the hospitals or not. 
 
10. 
 
Mr. Haider Waheed ASC appeared on behalf of the 
students and teachers of JSMU. He stated that the JPMC is 
an attached hospital of JSMU. He argued that in case the 
ownership and control of the JPMC is reverted to the 
Federation, JSMU would fall foul of the Medical and Dental 
Institutions (Recognition, Eligibility Criteria for Enhancement 
in 
Annual 
Admissions 
and 
Accreditation 
Standards) 
Regulations, 2018, especially Regulation 9 and 5 thereof. Said 
regulations stipulate that degrees from a medical university 
would be recognized only when the said university has an 
attached hospital of 1,750 beds. He contended that this 
requirement can only be filled by the JPMC in Karachi. He 
further diverted our attention to the fact that the JSMU has 
four constituent colleges, i.e. colleges which are managed and 
administered by JSMU in addition to nine affiliated colleges, 
i.e. private medical and dental colleges whose degrees are 
issued by JSMU. He submitted that setting aside the 
transfer/devolution of the JPMC would strip the JSMU of its 
status as a university and thus preclude it from awarding 
degrees. The fate of thousands of students pursuing their 
education from JSMU and the constituent and affiliated 
CA 125-K/2016 etc.  
10 
 
 
 
 
colleges thereof hinges on the outcome of the lis before us. 
Mr. Waheed argued that since the subject of public health is 
within the sphere of the provinces’ delegated powers, any 
executive authority exercised by the Federation over hospitals 
is constitutionally and legally barred. 
 
11. 
 
Appearing for the respondents in C.A 125-K and 
129/2016, Ms. Umaima Anwar Khan (with permission of this 
Court) argued that JPMC has never been a part of the 
Provincial List and always fell in the category as described by 
Entry No. 16 of the FLL. Relying on Sindh Revenue Board vs 
Civil Aviation Authority of Pakistan (2017 SCMR 1344, 
paragraphs 18 and 22) and Sui Southern Gas vs Federation of 
Pakistan (2018 SCMR 802, paragraphs 14(1) to 14(4)), she 
argued that entries in the FLL must not be interpreted in a 
“narrow or pedantic” manner but the same should be given 
the broadest possible import. She contended that the three 
hospitals were carrying out a number of research activities 
and would, thus, squarely fall within Entry No. 16 of the FLL. 
Moreover, it was submitted that the fact that public health 
and hospitals is admittedly a provincial subject would not 
obviate the Federal Government from owning and operating 
its own hospitals in the provinces. As regards the nature and 
character of JPMC for the purpose of its legislative 
classification she submitted that JPMC is a premier teaching 
CA 125-K/2016 etc.  
11 
 
 
 
 
institute, imparting higher medical education, and providing 
training to House Officers, Medical Graduates, medical 
students from SMC, nurses, technicians and paramedics in 
the various fields of medicine, surgery and its allied sub 
specialities. The institute she claimed, is affiliated with the 
University of Karachi for advance training leading to M.Phil. 
and Ph.D. degrees. According to the learned counsel more 
than 768 M.Phil., and 28 Ph.D. degrees have been awarded to 
the students of JPMC till date, and that its various 
departments are recognized/accredited by the College of 
Physicians and Surgeons Pakistan (CPSP) for FCPS, MCPS 
and MRCS diplomas in various specialities. Its department of 
thoracic medicine, for instance, was recognized as a centre for 
Post Graduate training and diploma courses, such as MCPS, 
FCPS and DTCD, and further that its department of 
ophthalmology 
has 
produced 
many 
FCPS 
and 
FRCS 
surgeons, which has also been recognized for second 
fellowship training in Vitreo-retinal surgery by CPSP. The 
learned counsel claimed that many pulmonologists practicing 
in the country have received their training at BMSI. The list 
annexed to the synopsis of arguments submitted by the 
learned counsel for the respondent, described as “Education 
and Training Section JPMC Annual Report 2019”, shows that 
varying number of doctors, students and trainees have been 
selected by the hospital for different professional degrees, 
CA 125-K/2016 etc.  
12 
 
 
 
 
diploma courses and training programmes. These include 
Post Graduate (PG), FCPS-II training, PG MCPS training, PG 
MS Training and PG MD, M.Phil. degree, etc., in different 
subjects. She submitted that the pursuit of a Ph.D. degree at 
JPMC essentially requires an extensive research work and the 
thesis based thereon has to be defended before a panel of 
experts, which is then required to be published in a HEC and 
PMDC approved journal.  
 
12. 
 
The learned counsel also submitted that JPMC, 
NICD and NICVD, are considered active centres of research 
and have been acknowledged and recognized by Pakistan 
Council for Science and Technology as a scientific and 
technological research centres in Pakistan and that “Pakistan 
Medical 
Research 
Centre 
for 
Gastroenterology 
and 
Hepatology”, at JPMC is recognized by CPSP as a specialized 
research centre for training, research, publications and 
workshops. 
 
13. 
 
Mr. Khurram Saeed learned Additional Attorney 
General for Pakistan appeared on behalf of the Federation 
and supported the impugned judgment. He argued that the 
transfer/devolution of the hospitals was ultra vires the 
Constitution and the same may be set aside. It may be 
interesting to note here that in the proceedings before the 
Sindh High Court, the Federal Government had supported the 
CA 125-K/2016 etc.  
13 
 
 
 
 
transfer/devolution of the three hospitals. One can only 
wonder as to what prompted the Federal Government’s 
change of heart in the present proceedings.  
 
14. 
 
We have heard the learned counsel and have, with 
their able assistance, perused the relevant record. However, 
without going into the veracity of the rival claims detailed in 
paragraphs 4, 11 and 12 above, it may be observed here that 
the above claimed activities, pursuit and, engagements, 
cannot and do not overwhelm or eclipse the basic and 
primary character and nature of the JPMC being a tertiary 
care public hospital. The research, education and training 
activities are made possible at JPMC because of it being a 
hospital, and that too, with at least twenty eight different 
department for treatment of as many diseases and ailments 
and their different strands. It may also be relevant to note 
here that not all the departments and facilities at JPMC are 
being used for imparting education and training. There is no 
denying the fact that JPMC is one of the leading tertiary care 
public hospital in the country. It provides services not only to 
the mega cosmopolitan city of Karachi but to the people from 
all over Sindh and also from different parts of the entire 
country. Way back in the year 2006, the hospital had 1185 
beds to provide in patient facility, covering all aspects of 
medical and surgical sub specialities (and in all probability 
CA 125-K/2016 etc.  
14 
 
 
 
 
the facilities may now have expanded further). Research, 
training and education, thus, contrary to being a derogation 
to its function as a hospital are in fact amongst the means, 
tools and resources through which its main purpose/function 
of providing the most adequate and the best possible health 
care and treatment actualizes.  
 
 
15.   
While NICVD has evolved from the central heart 
clinic of ward 10 of JCH, the present day JPMC. NICVD, as 
such, was set up in 1963, and was so registered under the 
Societies Registration Ordinance 1860. The Society was later 
converted into a trust; through a trust deed dated 
08.05.1976.  The aims and objects of the Trust as set out in 
the deed (Clause-4), were “providing modern facilities for 
treatment of Cardiovascular diseases, setting up a teaching 
and training centre for postgraduate and undergraduate 
medical students and nurses and a centre for research into 
Cardiovascular Diseases  and carrying on the Institute’s 
hospital, its attached units and subsidiaries for the treatment 
of persons suffering from Cardiovascular Diseases and 
development, research and training in the relevant fields.” 
 
 
16. 
 
From the above, one can clearly appreciate that 
the primary and the predominant, object, purpose and 
function, of NICVD was “treatment of cardio vascular 
diseases”, and “running and managing institutes, hospitals, 
CA 125-K/2016 etc.  
15 
 
 
 
 
its attached units, and subsidiaries for the treatment of 
persons suffering from cardio vascular disease”. The proposed 
research and training was to be a part of the said purpose 
and effort. Later, in the year 1979, NICVD Ordinance was 
promulgated, section 6 whereof enumerates the function of 
the institute as follows: 
“6. Function of the Institute. The functions of the 
Institute shall be- 
 
(1) to 
undertake 
modern 
treatment 
of 
cardiovascular diseases; 
(2) to acquire latest physical facilities required for 
carrying out necessary investigation and treatment 
of cardiovascular diseases; 
(3) to seek and enter into cooperation with 
international and other foreign agencies with the 
prior approval of the Federal Government in 
furtherance of the objectives of the Institute; 
(4) to carry out research in Cardiovascular 
Diseases 
for 
prevention 
and 
control 
of 
cardiovascular 
diseases 
as 
well 
as 
for 
its 
treatment; 
(5) to undertake training of medical students and 
nurses, both under graduate and post-graduate, 
in cardiovascular diseases; and 
(6) to develop itself into a Centre of super 
excellence for the treatment of cardiovascular 
diseases.” 
 
The above does not leave any nature of doubt, or ambiguity 
regarding the fact that the predominant, rather the core 
function/purpose of the institute is that of a cardio vascular 
hospital, while training and research were to be employed 
merely as tools and means to achieve and realize such 
purpose. These activities were thus subservient to the 
principal object of providing the most appropriate and the 
best possible medical treatment and health care to its 
patients. The explicit language of the above provision, and the 
CA 125-K/2016 etc.  
16 
 
 
 
 
order of placement of the different functions set out therein, 
do not require any elaboration with regard to the primary and 
core function/purpose of the institute, being that of a 
hospital. It may also be observed here that the purported 
NICVD Ordinance 1979, was no impediment in the transfer of 
the institute; firstly for the reason that the Ordinance did not 
exist in the eyes of law, having been promulgated by the 
federal government beyond its constitutional mandate and in 
violation of the restriction placed on it by means of Article 142 
(c) of the Constitution, as hospitals and public health (the 
entry to which the purported Ordinance pertains) never fell 
within the legislative sphere of the federation and have 
always, exclusively remained provincial subjects. More 
significantly and above all, the impugned transfer, though 
made belatedly, was in compliance with the constitutional 
mandate, as prescribed by Article 274 of the Constitution. 
 
17. 
 
The origins of the NICH on the other hand lie in 
the paediatric ward of JPMC. It has now developed into a five 
hundred bed children hospital, where teaching and training is 
carried out merely as an ancillary activity.  
 
18. 
 
As noted earlier, throughout the constitutional 
history of Pakistan, and even before independence, “public 
health, hospitals & dispensaries” have remained provincial 
subjects. Thus, in the Government of India Act, 1935, (which 
CA 125-K/2016 etc.  
17 
 
 
 
 
was the only instrument available for governing the country 
at the time of independence), the above subjects were 
enumerated in the provincial legislative list as entry No. 14. 
The very first constitution of this country, which received 
assent on the 2nd March, 1956, also entrusted the subjects of 
“public health sanitation, hospitals and dispensaries” to the 
provinces (Entry No. 26 of the Provincial Legislative List). The 
Constitution of 1962, which did not contain any provincial 
list and enumerated certain subjects only in the Central 
legislative list, left “public health” etc., for the provinces as 
residuary subjects. The interim Constitution of 1972 restored 
the provincial list with “public health” etc. as Entry 13 
thereof. The Constitution of 1973 originally contained two 
legislative lists, a federal legislative list, and a concurrent 
legislative list. The above subjects did not find place in any of 
the two lists, and thus being residuary subjects fell within the 
legislative competence of the province, & remained under the 
executive domain thereof. The concurrent list was abolished 
through the 18th Constitutional Amendment. Some of the 
entries of the concurrent list were shifted by the Amendment 
to the federal list. Most however were omitted.  
 
19. 
 
Hence in the above backdrop, and from the very 
inception, public health, hospitals, and matters relating 
thereto have remained under the provincial domain, and as 
CA 125-K/2016 etc.  
18 
 
 
 
 
such public hospitals in general have throughout been 
owned, controlled and managed by the provinces within their 
respective territories.  However, in terms of “The Pakistan 
(Establishment of the Federal Capital) Order 1948, GCO No. 
15 (Order of 1948), Karachi (where JPMC, previously known 
as JCH, was/is located,) was declared the Capital of Pakistan, 
whereas section 5 of the said Order provided that the 
executive authority for Karachi shall be exercised by the 
Governor General. Such authority also extended to matters 
enumerated in List-II of the Seventh Schedule to the Act of 
1935, being the provincial legislative list, wherein “Public 
Health, “Hospital & Dispensaries” found place by way of Entry 
14, hence JPMC (JCM of that time) was then being managed 
and controlled by the Federal/Central government. Thus, it 
can be seen that it was only by virtue of Section 5 of the 
Order of 1948 that the hospital, which otherwise fell within 
the provincial sphere of authority, was being managed and 
controlled by the Federal/Central Government. The situation 
however changed when after establishment of the Province of 
West Pakistan, under the “Establishment of West Pakistan 
Act, 1955, the federal capital territory of Karachi was, 
through the West Pakistan Administration (Merger of the 
federal territory of Karachi) Order, 1961, merged into the 
province of West Pakistan. Article 3 of the said merger Order 
1961, provided that “the specified territory shall, with effect 
CA 125-K/2016 etc.  
19 
 
 
 
 
from the appointed day, cease to be administered as federal 
territory and be known as the Karachi division of West 
Pakistan and administered accordingly.” Under the West 
Pakistan Administration (Merger of federal territory of 
Karachi) Order, 1961 (enforcement), 1st July 1961 was 
appointed as the day when the said ordinance would come 
into force and thus the executive authority acquired by the 
federal/central government over the provincial subject 
through section 5 of the Establishment of the Federal Capital 
Territory Order 1948 would cease to exist. Thus, from the 1st 
day of July 1961, on which date the 1956 Constitution was in 
force, hospitals, along with public health, fell exclusively 
within the provincial domain. The subject hospitals thus 
ought to have been transferred to the province. Unfortunately, 
however, it took a few decades to so happen.   
 
20. 
 
The fact that “public health” encompasses and 
embraces a large spectrum of responsibilities, activities, 
obligations, undertakings and functions hardly needs any 
emphasis. It involves and requires the deployment of various 
tools, means and resources; medical education, training and 
research, being the most crucial of them all, without which 
components 
no 
government 
can 
effectively 
provide 
appropriate and adequate health care to its people. This 
obligation 
undoubtedly 
includes 
prevention, 
diagnosis, 
CA 125-K/2016 etc.  
20 
 
 
 
 
diseases treatment, surveillance, prescription, invasive and 
non-invasive procedures, human resources development, and 
a lot more, which in turn essentially require a continuous 
research and training process/effort in different fields and 
spheres relating to health and medicine. Research, education 
and training are also essentially required to discover, 
diagnose, prevent, control and treat the various strains of 
different diseases and ailments which always keep mutating. 
Health System as described by the World Health Organization 
(WHO) is the sum total of all the organizations, institutions 
and resources whose primary purpose is to improve health. 
WHO defines ‘public health’ as “the art and science of 
preventing disease, prolong life and promoting health through 
organised efforts of society”. The University of Pittsburgh 
defines the terms as “the science of protecting life and 
providing health through education, policy making and 
research for diseases and injury prevention”. According to the 
Pan American Health Organization, “the principal or exclusive 
objectives of the health sector are to safeguard the health of 
individuals or population and the activities of the health 
sector institutions are designed to prevent and control 
diseases, care for the ill, conduct health research and 
training.” Research and training are therefore the most 
essential components of the public health, without which, the 
obligation to provide quality and affordable healthcare cannot 
CA 125-K/2016 etc.  
21 
 
 
 
 
be discharged, dispensed and fulfilled. It would therefore not 
be fair to say that health related research education and 
training cannot lawfully form part of a “hospital” and/or 
“public health”, in the context of the distribution of legislative, 
hence executive powers in a federal dispensation. Had it been 
the intent of the Constitution givers to assign general hospital 
with research, teaching and training facilities to the federal 
government, they could have conveniently created as a 
separate category for such hospitals and placed them on the 
FLL, like “Seamen’s and Marine hospital and hospitals 
connected with port quarantine”, which was so placed 
through entry No. 19, and the “places for the reception or 
treatment of the mentally ill and mentally retarded”, which 
category was enumerated in the erstwhile concurrent list as 
entry No.23. It should be kept in mind that classifying a 
general hospital as of the category falling under entry No.16 
of the FLL, for its conducting research and/or imparting 
professional or technical training in the fields of health 
sciences would dissuade hospitals owned and operated by the 
provincial governments from pursuing such activities, for a 
fear of being so branded, and thus being taken over by the 
Federal Government. It is a matter of common understanding 
that in this day and age of scientific and technologic 
advancement and professionalism, and for keeping abreast 
with the social and scientific development around, it is 
CA 125-K/2016 etc.  
22 
 
 
 
 
imperative for us to conduct research, and undertake 
teaching and training in all the fields and disciplines. 
However, declaring such activity as a qualifiers for falling into 
entry No.16 of the FLL would prevent the various provincial 
departments, organizations and undertaking from indulging 
in the same, descending them into stalemate, redundancy 
nay retardation with disastrous results.  
 
21. 
 
It is in recognition of the fact that research, 
education and training in health related disciplines are 
essential components of public health that public hospitals 
throughout Pakistan, other than those situated in the federal 
capital (irrespective of the extent and volume of their 
involvement in the aforesaid three activities) have been 
treated as Provincial entities only. They have thus been 
owned, managed, and controlled exclusively by the Provinces. 
By way of a few examples one may mention, The Children’s 
Hospital and The Institute of Child Health, Lahore, The 
Children Hospital and the Institute of Child Health, Multan, 
The Mayo Hospital, Lahore City, Lahore, The Service Institute 
of Medical Sciences/Services Hospital, Lahore, Postgraduate 
Medical Institute, Peshawar (PGMI, Pesh), and Postgraduate 
Medical Institute/Lahore General Hospital, Lahore (PGMI, 
Lhr/LGH, Lhr). 
 
CA 125-K/2016 etc.  
23 
 
 
 
 
22. 
 
The Children Hospital and The Institute of Child 
Health, Lahore is recognized by the College of Physicians & 
Surgeons Pakistan (CPSP) for postgraduate training. It is also 
recognized for house job by Pakistan Medical & Dental 
Council (PMDC). As per the institute’s website, 234 
postgraduate trainees are currently getting training in 55 
different disciplines and allied specialties of paediatric 
medicine, including various programme of fellowship, 2nd 
fellowship, & membership of CPSP and for MD, MS & M.Phil 
degrees. The institute is recognized for M. Phil Histopathology 
& MD Development & Behavioural Paediatrics with University 
of Health Sciences, Lahore. It is also conducting scientific 
research and encompasses a school of nursing, and a School 
of Allied Health Sciences.  
 
23. 
 
The Children’s Hospital & The Institute of Child 
Health, Multan is a tertiary care teaching hospital, and is 
recognized by CPSP for its membership and fellowship 
programs in Medicine, Surgery, Neonatology, Anaesthesiology, 
Radiology etc. The University of Health Sciences, Lahore is 
running its MD, MS and DCH training programs at the 
Institute. The Institute has also been recognized by PMDC for 
imparting training for the aforementioned degree and Diploma 
programmes. The Institute also claims to be regularly 
involved in continuous medical educational activities and 
CA 125-K/2016 etc.  
24 
 
 
 
 
research 
projects 
in 
collaboration 
with 
National 
and 
International Institutes.  
 
24. 
 
The School of Nursing, Mayo Hospital, Lahore, is 
imparting a three years general training of nursing, and 
presently 250 Nursing Students are getting training of 
nursing at the school, whereas CPSP has approved the East 
Medical Ward of Mayo Hospital for FCPS training in 
rheumatology, making it the third major centre in public 
sector hospital in Punjab, offering level IV qualification in 
super specialization.  
 
25. 
 
The Services Institute of Medical Sciences/ 
Services Hospital, Lahore is recognized for, and offers FCPS 
training in 26 specialities. It is also recognized for MCPS 
training in various disciplines.  
 
26. 
 
The Post Graduate Medical Institute, Peshawar 
(PGMI, Pesh) was established by the Government of KPK as a 
separate and independent Postgraduate Medical Institute at 
Lady Reading Hospital, Peshawar, to be a Provincial centre of 
excellence which could offer the highest quality tertiary health 
care services and to promote research in all field of health in 
the Province. The Institute now stands recognized as a 
teaching and training institute by PMDC, CPSP and Royal 
College of UK & Ireland. It is said to be serving the health 
CA 125-K/2016 etc.  
25 
 
 
 
 
needs of the Province as a major human resource 
development centre. The Institute is also engaged in 
conducting research and its research work is now regularly 
published in various national and international medical 
journals. PGMI Peshawar offers FCPS-II training and 
numerous 
diploma 
courses 
to 
health 
professionals 
throughout KPK. The institute consists of 41 teaching units 
at Lady Reading Hospital and Hayatabad Medical Complex 
and is accredited by the CPSP, it is also affiliated with Khyber 
Medical University.  
 
27. 
 
The 
Postgraduate 
Medical 
Institute, 
Lahore/ 
Lahore General Hospital, Lahore (PGMI, Lhr/LGH, Lhr) is also 
engaged in imparting education and training in the various 
fields of medicine & surgery and is conducting training for 
various FCPS & MCPS programmes. 
 
28. 
 
Adverting now to the nature of our constitutional 
dispensation, suffice to say that Pakistan is a Federal 
Republic (Article I of the Constitution). The preamble to our 
Constitution envisaged the State of Pakistan to be a 
federation, comprising of autonomous units (Provinces), 
enjoying power and authority as may accordingly be 
prescribed. Being true to its aspiration, the Constitution laid 
out a comprehensive scheme in consonance with a federal 
dispensation, some aspects whereof have been highlighted 
CA 125-K/2016 etc.  
26 
 
 
 
 
hereinafter. The principle and spirit of federalism and 
provincial autonomy has been reinforced and made watertight 
and sacrosanct, through the 18th Amendment, adopted by the 
Parliament with unanimity.  
 
29. 
 
Dilating upon the concept of federalism in the 
context of the United States’ Constitution, KC Whease, former 
professor at the University of Oxford and Chairman of Rhodes 
Trust stated: “If we examine the American Constitution, we 
must conclude that, as a matter of law there laid down, the 
field of government is divided between the general authority 
and the regional authority which are not subordinate to each 
other, but coordinate with each other. In the words of a 
modern American historian, the general government “is a 
government supreme within its spheres, but that sphere is 
defined and limited”. As the tenth amendment made clear in 
1971, “the power not delegated to the United States by the 
constitution nor prohibited by it to the states, are reserved as 
to the states respectively or to the people”. 
 
30. 
 
In the Oxford Handbook of Indian Constitution, 
edited by Sujit Choudhry and Pratap Mehta, following 
commonly accepted features of 
federalism have been 
highlighted: 
(i) 
existence of two levels of government; a 
general government for the whole 
CA 125-K/2016 etc.  
27 
 
 
 
 
country and two or more regional 
governments 
for 
different 
regions 
within that country; 
(ii) 
distribution of competence or power-
legislature, 
executive, 
judicial 
and 
financial between the general and the 
regional governments; and 
(iii) 
supremacy of the constitution- that is, 
the foregoing arrangements are not 
only incorporated in the constitution 
but they are also beyond the reach of 
either governments to the extent that 
neither of them can unilaterally change 
nor breach them. 
    
31. 
 
Mr. AK Brohi in his book “Fundamental Law of 
Pakistan – 1958” has described “federalism” as a “device by 
which a system of double government is made to operate in 
one and the same State. It envisages a scheme of securing 
division of power between the National Government, on the 
one hand, and the Regional Governments, on the other hand, 
in such a way that, both of them discharge their law making 
and executive functions strictly within the sphere of their 
allotted jurisdiction…. The two governments accommodated 
within the framework of a federal polity are of coordinate 
authority and work independently of each other in the sphere 
marked out to them… in a Federal Constitution there are 
really two governments working side by side, and the 
operation of each one of them, within the limits defined by the 
CA 125-K/2016 etc.  
28 
 
 
 
 
Constitution, is independent of the control by the other. They 
are coordinate, independent organs sovereign power, each 
being a master in the sphere of its own allotted jurisdiction”.  
      
32. 
 
And 
thus, 
in 
terms 
of 
Article 
97 
of 
the 
Constitution “subject to the Constitution, the executive 
authority of the Federation extends to the matter with respect 
to which Majlis-e-Shoora (Parliament) has powers to make 
laws”. Similarly, Article 137 of the Constitution grants such 
authority to the Provinces to the extent “of the matters with 
respect to which the Provincial Assembly has powers to make 
laws”. Article 142 of the Constitution, on one hand, through 
its clause (a), grants exclusivity to the Parliament in 
legislating with respect to matters enumerated in the FLL, 
and on the other, vide clause (c) thereof, secures the 
legislative power in respect of all the residual matters, i.e. the 
matters not listed in the FLL, exclusively in favour of the 
Provincial Assembly. The Article emphatically forbids the 
Parliament from legislating in such matters, save and except 
in respect of areas in the Federation that are not included in 
any Province, in relation whereto, as provided by clause (d), 
the Parliament exercises exclusive powers. However, in terms 
of clause (b) of Articles 142, law making in respect of criminal 
law, criminal procedure and evidence has been left open for 
the Parliament as well as the Provincial Assemblies to venture 
CA 125-K/2016 etc.  
29 
 
 
 
 
into. It can, therefore, be seen that the Constitution has laid 
down a well-defined scheme, prescribing the extent and 
limitation 
of 
the 
respective 
legislative 
and 
executive 
competence and sphere of the Federation and the Provinces, 
leaving no ambiguity regarding such demarcation, and no 
room either for the Federation, or the Provinces, to 
manoeuvre any encroachment over the exclusive domain of 
the other. The above delineation of power is so well secured 
that it is only in case where the President, being satisfied that 
a grave emergency, threatening the security of the country by 
(i) war or external aggression, or (ii) by internal disturbances 
beyond the power of a Provincial Government to control 
exists, proclaims emergency, as envisaged by Article 232(1) of 
the Constitution, that the Parliament may be able “to make 
laws for a Province or any part thereof, with respect to the 
matters not enumerated in FLL” [Article 232(2)(a)]. It may, in 
such an eventuality, by order assumes to itself, all or any of 
the functions of the Government of the Province, and make 
such incidental and consequential provisions as appear to it 
to be necessary and desirable for giving effect to the objects of 
the proclamation [Article 232(2)(c). However it is not just the 
satisfaction of the President that a grave emergency 
threatening the security of the country exists, that a 
proclamation can be made, but in case the emergency occurs 
because of internal disturbance beyond the power of a 
CA 125-K/2016 etc.  
30 
 
 
 
 
Provincial government to control, a resolution from the 
Provincial Assembly for making such imposition is, (as 
provided under clause-I of the said Article), an essential 
prerequisite. In case the President proceeds on his own, 
however, the proclamation is required to be placed before the 
two Houses of the Parliament for approval of each House 
within ten days. Yet, a law made by the Parliament which, but 
for a proclamation of emergency, would not have been 
competent to make, shall to the extent of incompetency, cease 
to have effect on the expiration of six months after the 
proclamation of emergency has ceased to be  in force [Article 
232(5)]. Furthermore in terms of clause 7(a) of the above 
Article a proclamation, within thirty days of its being made, 
shall be laid before a joint sitting of the Parliament, and shall 
cease to be in force at the expiration of two months, unless it 
has been approved by a resolution of the joint sitting by such 
time. Conversely, a proclamation shall subject to clause 7(a) 
above, cease to be in force upon a resolution disapproving the 
proclamation being passed by the majority of the total 
membership of the two Houses in a joint sitting. The federal 
character of our Constitution and provincial autonomy, 
hence, remain unimpeachable even during a war or external 
aggression, or internal disturbance beyond the power of a 
Provincial Government to control, resulting in a proclamation 
of emergency, issuance of which,  requires a resolution of the 
CA 125-K/2016 etc.  
31 
 
 
 
 
relevant Provincial Assembly and in the second case, has to 
be approved by both Houses of the Parliament. It may also be 
recalled that the assumption of power to make laws with 
respect to matter beyond the FLL, and so also the assumption 
of the functions of the Provincial Government by the 
Federation are limited to the relevant Province, and that too 
only for a limited period. The Federal Government’s 
consequential ability to make any incidental provision also is 
limited to those that are inevitable to give effect to the object 
of the proclamation. Furthermore, the proclamation ceases to 
be in force, at the expiry of two months, unless it is approved 
by a resolution of the joint sitting of the Parliament before 
such expiry.   
 
33. 
 
The basic feature, rather the spirit and soul of 
federalism, is the distribution of legislative powers between 
the federation and the province, with its core being provincial 
autonomy. Interpretation of constitutional provisions should 
thus be in consonance with the said principle, rather than in 
a manner that encroaches upon the space reserved for the 
provinces. The scope of an entry in the FLL should not be 
expanded or enlarged in a manner that infringes provincial 
autonomy. It is also to be kept in mind that the nature and 
character of the Constitution carries great significance and is 
of utmost relevance in construing the legislative entries and 
CA 125-K/2016 etc.  
32 
 
 
 
 
determining the scope and extent of the subjects assigned by 
it to the Federation and the Provinces. The Court should 
therefore avoid an expansive construction of a federal 
legislative power which renders redundant or nugatory the 
legislative field, power and authority assigned to the 
provinces, either expressly or as residuary, thus undermining 
provincial autonomy.      
 
34. As regards fundamental rights, it may be observed here 
that indeed the State has guaranteed the protection of 
fundamental 
rights 
enshrined 
in 
the 
Constitution. 
Nonetheless, one must resist conflating the State with the 
federal government as the provincial and also the local 
governments too constitute the State. The State’s obligation 
with regard to fundamental rights is, therefore, to be fulfilled 
and discharged by all tiers of the government and all organs 
of the State as per their power, authority, obligation, and 
competence, strictly as prescribed under the Constitution. 
Under no notion can any of the said governments be stripped 
of their rights, authority, or power, nor can they be exempted 
from discharging or fulfilling their prescribed obligations. If 
allowed, this would result in complete anarchy and the 
Constitution would not only be undermined but would 
become redundant. It may also be relevant to observe here 
that the scope and extent of the “right to life”, as protected 
CA 125-K/2016 etc.  
33 
 
 
 
 
under Article 9 of the Constitution is so wide spread that it 
embraces almost every aspect and facet of human existence. 
Allowing the federation to assume power and authority under 
such a rubric would, thus, hardly leave anything for the 
provincial government to undertake, discharge, or fulfil, 
jeopardizing this nation’s collective odyssey towards greater 
provincial autonomy, as witnessed in the unanimous 
approval of the 18th Amendment.   
 
35. It was in order to ensure the faithful and instant 
compliance of the delineation of power between the federation 
and the provinces and ultimately between the provincial and 
the local governments that the Parliament enacted Article 
140A in the Constitution. Article 140A in its present form 
prescribes that “each province shall, by law, establish a local 
government system and devolve political, administrative and 
financial responsibilities and authority to the elected 
representatives of the local government.” Adhering to the 
above would certainly foster in the people, a greater sense of 
participation and reinforce and strengthen their faith in the 
State machinery of governance, bringing cohesion and giving 
strength to the country.  
 
36. 
Disregarding 
the 
mandatory 
provisions 
of 
the 
Constitution 
and 
the 
categorical 
mandate 
prescribed 
thereunder would embolden and encourage those who are 
CA 125-K/2016 etc.  
34 
 
 
 
 
averse to the rule of law and have scant regard for the 
supremacy of the Constitution, thereby strengthening those 
who want to create dissention and discord in our national 
polity.  
 
37. 
 
Now before parting with this note, it may be 
relevant to state that while a dissenting note has no legal 
force, the purpose of this endeavour is to appeal to the 
brooding spirit of the law in the hope that what may be 
dissent today becomes the law tomorrow. 
 
38. 
 
Above are the reasons for my short order dated 
17.01.2019. 
 
 
 
 
 
 
 
 
 
 
Judge 
‘APPROVED FOR REPORTING’ 
(Aamir Sh.) 
