' DOST MUHAMMAD KHAN, C.J.--- Through this constitutional petition, the petitioner (Peshawar High.
Court Bar Association through its Secretary General) has prayed for the following relief:---
(a) That respondents Nos.1 to 3 may be directed to give the Khyber Law College the status of Khyber Law University, Peshawar;
(b) Further directions may be issued to the said respondents to make or arrange to make proper legislation for the establishment of the said University;
(c) Any other relief not specifically prayed for and deemed appropriate in circumstances of the case, may also be granted.
' The petitioner is a representative body of the lawyers of the entire Province, enrolled as Advocates to practice law at the High Court's level. It is averred in the petition that to ensure the providing of research facilities in the field of law for acquiring higher legal education, like LLM and Ph.D in the Province of Khyber Pakhtunkhwa, the Provincial and Federal Government shall have to perform its constitutional obligations in this regard, so that, this field of vital national importance is no more neglected like in the past.
3. The plea of the petitioner is that Khyber Law College was a Faculty of Law and on coming into force of the Peshawar University Act, 1950, Agricultural, Engineering and Technology as well as Islamia College, the oldest one established in October 1913, were made constituent colleges of the University.
4. The Peshawar University Act, 1950 was repealed on coming into force Act No.II of 1974, called "The Peshawar University Act". During this period, the Khyber Law Faculty was downgraded to Khyber Law College while Islamia College was given full autonomy and through Act No.VI of 2009 it was made Islamia College University. Similarly, the Faculty of Agriculture was upgraded to the status of University through N.W.F.P. (Khyber Pakhtunkhwa) Ordinance No.I of 1981 while through Ordinance No.III of 1980, the Faculty of Engineering was given the status of independent University called "University of Engineering and Technology". Again, Khyber Medical University was established through Act of the Provincial Assembly.
5. In all, there are 132 Universities in Pakistan, duly recognized by the Higher Education Commission.
Out of these, 73 are operating in the public sector while the rest of 59 are functioning in private sector. Amongst these Universities, 25 are credited to Khyber Pakhtunkhwa out of which 16 are general in nature while 9 Universities are imparting education and knowledge in specialized/professional fields but not a single one is imparting legal education.
6. The unclad fact, undeniable in nature is that, Bar Associations are nursery for the subordinate and higher judiciary in the Province because law graduates/practicing lawyers are recruited as Civil Judges/Magistrates, Additional District and Sessions Judges as well as District and Sessions Judges while those fulfilling the eligibility criteria, laid down by the constitution, are elevated to the high status as Judges of the High Court on the recommendation of the Chief Justice and the Judicial Commission, therefore, enhancing the capacity of the lawyers before entry into such vital professional field, is the dire need of the day.
7. Under the provisions of Article 37, contained in Chapter-II of the Constitution, some 38 years back, the constituent assembly for the first time undertook to make technical and professional education generally available and higher education equally accessible to all on the basis of merit.
True, that Article 30 of the Constitution is an exception clause providing inter alia that validity of an action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State shall not be called in question on the ground that it is not in accordance with the Principles of Policy, however, the provisions of Chapter-II needs to be activated by all means otherwise, it will become a dead limb and dormant statute. This chapter, being integral part of the supreme law, if not put into service almost after a long period of four (04) decades, the dreams and objectives of the framer of the Constitution would vanish and would be brought to naught. Probably, the exception clause was inserted due to the debacle of the Dhaka fall in 1971 and because of the Indian invasion on East Pakistan (Bangladesh) the economy received fatal blow, inflicting damaging injury on the financial health of the State, the framer of the Constitution deemed it appropriate to defer the binding effect of the provision of Chapter-II with regard to the acquiring of higher, technical and professional education easily available and to make it conveniently accessible.. Indeed, through the exception clause some space was given albeit temporarily so that on the recovery of damaged economy, these are pressed into service and reactivated. Unfortunately, all successive government did not take positive step nor has had glimpse over these beneficial provisions for which no permanent clearance certificate could be given to the State functionaries or to say the Government to ignore and neglect the provisions of Chapter-II regarding principle of policy.
8. After the partition of the sub-continent, at the very inception of Pakistan, there was only one Staff College, located in India, which was moved to Quetta and renamed Command and Staff College Quetta, the most high calibre Institution, imparting training, skill and knowledge to the Armed Forces. The same was expanded many times and subsequently it was affiliated with the Defense University of Pakistan.
9. On the other hand, the Executive limb of the State conveniently managed establishing of Training Institute of the same and similar caliber. One of the examples is NIPA Lahore having campuses in all the Provinces.
10. For many years, few Bar-at-Law like, Quaid-e-Azam, the great, besides few numbers of lawyers, who had qualified from the great learning seat of Ali Garh, constituted a small core of the legal fraternity. Some of them were elevated to the Benches of the Superior Judiciary while the others practiced law at the bar. No meaningful effort was made to promote legal education by enhancing the capacity and capability of law Institutions within the entire country i,e, the West Pakistan and East Pakistan both till the time the latter got independence from the West wing through bloodshed and after we lost the East wing to Indian during full-fledge war on West and East front.
11. During the last 65 years, no one realized the unavoidable need of enhancing the capacity and capability of the Legal Education Institutes within the country.
12. Those, who were affluent, rich famously called the elite class, managed to send their children abroad particularly, to U.K to qualify in LLM or to be enrolled Bar-at-law while more than 95%, the majority of the poor, continued with the getting of low profile legal education from substandard Legal Education institutes as they could not afford the unbearable expenses of getting higher legal education abroad.
13. The consistent and uncondonable negligence on the part of the State and each successive Government to make higher legal education easily available and conveniently accessible within the country has brought about sharp decline in the capacity of legal fraternity. To fill up the vacuum, the private investors jumped into the arena and to encash upon it, they started establishing and opening of private law colleges. These are being run on commercial basis. Barring few of them, majority are not of the required standards, having no well qualified staff, lacking research and resource facilities apart thus, the law graduates, passing out of it, have not been able to prove their worth of professionalism. With every passing day, the legal standard, knowledge, skill, capacity and capability of the lawyers community particularly, of this Province, has shown sharp decline. This alarming situation is now posing a potential threat to the well channelized and more than century old legal system. Recruitment of Judges in the District Judiciary purely on merits and elevation of senior lawyers to the High Court Benches has become a difficult task. The Continuous decline of the legal education is going on unabated which is a matter of serious concern particularly, in the present days when the superior judiciary is confronted with serious challenges.
14. In the field of each profession, various specialities have been introduced. In the medical profession beside physicians and general surgeons, the physician and surgeon in specialized field like chest diseases specialist, cardiac physician, neuro physician etc. Have been introduced since long. Similarly, in the field of surgery too, beside general surgeon, ENT surgeon, neuro surgeon, cardiac surgeon, orthopedic surgeon and vascular surgeon have been introduced.
' Similar is the case in the field of engineering, where mechanic, technical, designs, electrical and other specialized field engineers with different qualification have been introduced. Under the license/ enrollment Certificate, these physicians, surgeons and engineers specialized in particular faculty are permitted only to treat and do surgery and carried out engineering works in the specialized field only. The case of agriculture is not also different, however, the profession of law is carrying on with the obsolete and outdated general field of law because a simple graduate in Iaw
(LLB) is permitted by the Bar Council to practise law before any Court or Tribunal within the Province or throughout the country. The time has come that this phenomenon must be checked & brought to halt, it is unavoidable and dire need of the day that special faculty and specialized fields of legal profession shall be created and those, who are qualified in specialized field by successfully undergoing LLM and Ph.D courses, shall practice law in those specialized field. Only.
15. If such a system is evolved, it will be of utmost utility for the litigants, as they would be delivered high quality service in particular cases, the Courts of law would be also in a position to reduce delay in the delivery of justice and that too in a very befitting manner, if proper assistance is rendered by specialized lawyers in a particular speciality. Even the lawyers community would be upgraded both status-wise and capacity-wise and because of higher qualification and specialization in a particular field of law, they would be able to earn more. It is an undeniable fact that in this country the largest private sector employers are the public litigants, who are not only feeding more than len (10) millions lawyer community but the entire legal system and its edifice is structured on the strength of their resources but it is highly regrettable that neither they are given fair treatment nor they get quality services from ordinary lawyers, who are not specialized in a particular field, but they do accept the brief in each and every case.
16. As discussed earlier, unless and until the legal education is taken, to the high profile and upgraded, specialized faculties are created, the capacity and capability of the Bar cannot be increased in a conventional manner. The Bar served as a nursery for the orchard of judiciary, therefore, over sapling planted in judicial orchard would not become a fruit bearing trees, to be of utility for the public at large and the judicial system in particular, hence, it is a high time and responsibility of the State and the State Functionaries are increased and it has become essential for the Government to come forward and do the job by enhancing the quality of legal education, however, it would be just a dream without establishing a Law University consisting of specialized faculties in different branches of law and providing higher professional education which includes LLM and Ph.D.
17. The High Court has taken corrective quick steps by getting through and passing of the Provincial Judicial Academy Act, 2012, through the Provincial Assembly and the Chief Justice of the High Court, being its Chairman, has already established and notified the same. Arrangements are being made at a high speed to provide for in service training for the Judges of the district judiciary, the lawyers community, investigators, prosecutors, prison authorities, doctors and other professionals related to the system of Administration of Justice, however, this training Courses would further polish the professional excellence of the Judges, the lawyers and others by imparting skill, further knowledge and raising their capacity and capability to achieve the targets and desired goals set out in the Charter of the. Academy but unless the curriculum is drastically changed training in the Provincial Judicial Academy of Khyber Pakhtunkhwa would not be much beneficial.
18. Keeping in view the rising need of every day, it has become unavoidable to establish a Law University at Khyber Pakhtunkhwa and for that purpose the present Khyber Law College, situated in the Campus of University of Peshawar, is required to be upgraded to the said status.
19. The Government/State Functionaries have upgraded Colleges of Agriculture, Engineering and Islamia College to the status of University with all allied facilities and faculties. It has also established Khyber Medical -University but no attention is being given to the Legal Education and instead of upgrading the then Khyber Law Faculty, the same was downgraded to the status of Law College, hence, is giving a highly discriminatory treatment to this very important field relating to legal. Profession. The same is squarely -prohibited by Article. 25 of the Constitution and for that reason too the inaction and refusal of the Government to upgrade the Khyber Law College to the status of University is hit by the prohibitory command of the above Article of the Constitution, hence, it is committing violence to the constitutional command.
' Accordingly, while allowing this petition, the Provincial Government and all authorities, relevant to the subject, are hereby directed to immediately draft a Bill for establishment of Khyber Law University and it must be placed before the Provincial Assembly, so that, the same is enacted as a law/Act. Although, respondents Nos.1 to 3 have half-heartedly opposed the establishment of, the University in their cothments but at the time of hearing of this petition, the learned counsel for Federation of Pakistan as well as Provincial Government were fair and frank to concede that indeed the establishment of law University is a dire need of the day to ensure strengthening. And independence of IN judiciary which includes Bench and the Bar.
' To create potential law graduates of high utility to the millions of litigants and the judiciary both, it is required that the curriculum of LLB course be changed drastically. To achieve the objectives, all candidates right from F.A. Level shall compulsorily be asked as to whether he / she would adopt the legal profession and those opting for 0 the same then, they have to pass three (03) papers in the subject of law in the first year and three (03) papers of law in the second year. At the graduation level, four (04) papers of law with a Code of Ethics be made compulsory and similar number of law subjects be made mandatory to be successfully undergone in the final year (BA).
' The LLB Course can conveniently be brought to one year and thereafter the successful candidates/graduates in law shall exercise an option to do LLM in 2/3 subjects at the most.
Similarly, after undergoing successfully the LLM courses, the specialized law students may opt for Phd course in one or two subjects.
' After successfully undergoing the above courses of higher professional legal education, these lawyers be permitted by the Bar Council to practice law only in those specialized fields in which they have obtained graduation, LLM or PhD degrees.
' For achieving the above purpose, immanent legal experts both from the education core or imparting law, from the judiciary and the IR Bar, immanent Judges and lawyers Board be constituted to set out the courses of studies of law for all the three (03) phases.
' All the private sector colleges shall essentially get affiliation with the Khyber Law University, however, for this purpose stringent conditions be laid down with regard to the quality of education, that include the highly qualified teaching staff, research and resource facilities and for that purpose model bylaws for affiliation be laid down by the University. Necessary amendments be also introduced in the Bar Council Act and Rules to carry out and further the intents and objectives of the new enactment streamlining and channelizing the higher professional legal education in private sector as well. It would be highly appropriate and advisable that the Chief Justice of the High Court is made Chairman of the Senate of the University and also to preside over the meeting of the Syndicate and Academic Council either himself or through his nominee which shall be the senior most Judge of the High Court. One or two District and Sessions Judges of high caliber, to be nominated by the Chief Justice, shall also be the members of the Syndicate and Senate and two members from the High Court Bar Association, having outstanding career and good reputation and two members from the Provincial Bar Council, by virtue of their offices, be made members of the Syndicate and Senate both. Similarly, the Chief Secretary or Additional Chief Secretary of the Government and Secretary Law, Justice and Human Affairs, shall also be made members of the Syndicate and Senate. The Provincial Assembly, in its discretion, being the ultimate law-maker, may further refine the constitution of the Syndicate and the Senate as well as Academic Council of the University. The Government shall provide enough accommodation and fund to the Khyber Law College, so that, the University Faculties are established conveniently and if extra area is required that shall be allotted to it within the Campus of the University besides allocating sufficient fund in the next annual. Budget for the establishment of the University after the law is enacted to that effect in light of the above observation. At the same time, the Federal Government and the Higher Education Commission are also directed to extend financial, technical and all other type of assistance of the Provincial Government o achieve the objectives, highlighted above.
' Resultantly, this petition is allowed in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.