Muhammad Jamal Nasir Vs Governement of Khyber Pakhtunkhwa.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No.7034‐P/2025

Muhammad Jamal Nasir (Petitioner)

Vs.

The Government of Khyber Pakhtunkhwa through its Chief Secretary, Civil Secretariat, Peshawar and others (Respondents)

For Petitioner(s): M/s. Amin‐ur‐Rehman Yousafzai and Muhammad Sangeen Khan, Advocates.

For Respondent(s): M/s. Bilal Khan, AAG, Habib Anwar and Subagtageen Khan, Advocates alongwith Mr.

Waqar Khan, Section Officer (Litigation), Health Department, Peshawar.

Date of Hearing: 21.05.2026

JUDGMENT

IJAZ ANWAR, J. Through this single judgment, we intend to decide the instant writ petition and Writ Petitions No.606‐D/2025 titled “Muhammad Israr Alam Vs.

Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others”, No.829‐D/2025 titled “Atta Ullah Khan and others Vs.

Government of Khyber Pakhtunkhwa through Secretary Health, Peshawar and others”, No.7079‐P/2025 titled

“Nauman Yousaf and others Vs. The Government of Khyber Pakhtunkhwa through its Chief Secretary, Civil Secretariat, Peshawar and others”, No.7925‐P/2025 titled “Abbas Bakhtiar Vs. The Government of Khyber Pakhtunkhwa through its Chief Secretary, Civil Secretariat, Peshawar and others” and No.569‐P/2026 titled “Khyber Taimoor Iqbal Vs. The Government of Khyber Pakhtunkhwa through its Chief Secretary, Civil Secretariat, Peshawar and others”. In the instant writ petition, the petitioner has prayed for the following relief:‐ i. “Order the withdrawal of the impugned advertisement/ Expression of Interest issued by respondent No.3 Ref # HF‐ 027/2025‐26 to the extent of Category “D” Hospital Lundkhwar, District Mardan and cancel the outsourcing process of Category “D” Hospital Lundkhwar under the garb of Public‐Private Partnership and to continue managing the said hospital under the public health system as mandated by law.

ii. Issue a writ of prohibition restraining the respondents, their agents, nominees or contractors from proceedings further with the outsourcing or handing over of management of Category “D” Hospital Lundkhwar to any private entity whatsoever.

iii. Direct the respondents to ensure uninterrupted and free provision of medical facilities and services at Category “D” Hospital Lundkhwar, Mardan to the

petitioner and the general public in accordance with their constitutional obligations under Articles 9, 14, 25 and 38 of the Constitution of Islamic Republic of Pakistan, 1973.

iv. Any other remedy which is just and efficacious, though not prayed for specifically may also be awarded by exercising inherent power of this august Court”.

2.Petitioner has questioned the advertisement under the heading “Expression of Interest” given by the Khyber Pakhtunkhwa Health Foundation, whereby, about 12 health facilities comprising of Category‐C, D, RHQ and DHQ hospitals throughout the Province would be outsourced. The reasons for inviting E‐Bids through E‐Pak Acquisition & Disposal System is given as under:‐

3.Much has been argued about the bonafide of the respondents in outsourcing these facilities. Reference has been made to the alleged deteriorating condition of the major hospitals after their inclusion in MTI System. Also argued about the authority of the Health Foundation in issuing advertisement for outsourcing of the health facilities.

4.Learned counsel, representing the Health Foundation, while making reference to the preamble of the Khyber Pakhtunkhwa Health Foundation Act, 2016 (hereinafter to be referred as “the Act”), argued that the Foundation is established “to provide for the establishment of a Health Foundation in the Province of the Khyber Pakhtunkhwa to promote and enable the development of innovative health care delivery models to achieve policy objectives of Government of the Khyber Pakhtunkhwa to improve coverage through various means of Public Private Partnership for healthcare delivery services and the matters connected herewith and ancillary thereto”. He also made reference to Section 8B of “the Act” and the Khyber Pakhtunkhwa Health Foundation Public Private Partnership Rules, 2017 and argued that the advertisement in question is issued pursuant to the Government Health Policy which

has the approval of Cabinet as well. He further argued that neither it amounts to privatization nor does it entail any escalation in health care cost but the intension is to strengthen the Health Care System and the process so adopted is in consonance with the legal mandate. The learned AAG, representing the official respondents, adopted the arguments of the learned counsel representing the Health Foundation.

5.Arguments heard and record perused.

6.Following the 18th Amendment to the

Constitution, provinces now have the mandate to strategize and plan in the health sector and it was in this background that the Provincial Government, on 19.04.2010, introduced the Health Policy Khyber Pakhtunkhwa which has many salient features and one of such decisions was that “the private sector will be engaged as a partner in health delivery through appropriate mechanism” and in this respect, it was proposed that “1) the Department of Health will develop policies and guidelines for ‘purchase’ of services from the private sector by the government in areas where high quality private sector service providers are available. In all such arrangements provision for safety nets for the poor would be an essential element; 2) Develop a plan for

involving private sector in health promotion and prevention activities like immunization, FP etc; 3) Review of public private partnership models; 4) Innovative management models for health facilities at all levels will be developed and implemented to enhance coverage and reduce costs; and 5) Strengthen Health Foundation for expedited Public Private Partnerships”.

7.It was in this view of the matter that the Khyber Pakhtunkhwa Health Foundation Act, 1995 was repealed and “the Act” was promulgated, gazette notified on 07.06.2016 mainly aimed “to provide for the establishment of a Health Foundation in the Province of the Khyber Pakhtunkhwa to promote and enable the development of innovative health care delivery models to achieve policy objectives of Government of the Khyber Pakhtunkhwa to improve coverage through various means of Public Private Partnership for healthcare delivery services and the matters connected herewith and ancillary thereto”. For the first time, Section 8A and 8B of “the Act” were inserted vide Khyber Pakhtunkhwa Act No.XXIII of 2017. Section 8A of “the Act” relates to Technical Committee to be constituted for implementation of policies relating to the public private partnership related initiatives approved by the Board to be

constituted under Section 4 of “the Act”; while Section 8B of “the Act” relates to the “Public Private Partnership”. It, being relevant, is reproduced as under:‐

“8B. Public Private Partnership.

Notwithstanding anything contained in the Khyber Pakhtunkhwa Public Private Partnership Act, 2014 (Khyber Pakhtunkhwa Act No. XX of 2014), the Health Agency shall be fully empowered to enter into public private partnership with private parties under mutually agreed terms and conditions in one or several Health Projects with the approval of Health Foundation and, in accordance with the provisions of this Act.]”

8.Similarly, for public private partnership, the Government vide Notification dated 21.08.2017, notified the Khyber Pakhtunkhwa Health Foundation Public Private Partnership Rules, 2017 which provides for “identification of the projects, project prioritization, project evaluation, project execution, selection of the private party, project operation, project termination and negotiation of public private partnership agreement with or without competitive process and many other matters including the dispute resolution”. It is pertinent to mention here that the matter for the approval of the public private partnership in Health

Sector‐Policy was placed before the Provincial Cabinet. The Provincial Cabinet in its 62nd meeting held on 30.11.2021 discussed this issue and has decided as under:‐ “Decision:

The Cabinet approved the Overall PPP Policy framework including PPP for Primary Health Care Services and facilities in selected districts, PPP for selected Secondary Health Care Facilities, PPP for hospital infectious waste management across all secondary facilities, Outsourcing of janitorial, security and warehousing services across Health Care Facilities, PPP for diagnostic (laboratory and imaging) services on need basis and PPP for Pharmacy Services. The Cabinet further approved that the Health Department would decide which facilities to be outsourced within this framework, in line with the annual budgetary envelop. The PPPs would follow defined principles and financial arrangements in accordance with existing laws and Government procedures. The policy will be executed by Health Foundation and/or any competent executing agency of Health department (such as respective project management units established under ADP/AIP Schemes). Policy may be reviewed and updated on

a periodic basis to incorporate learning”.

The impugned advertisement was issued pursuant to the above decision of the Provincial Cabinet.

9.The Government has given justification for inviting Expression of Interest for outsourcing the health facilities keeping in view the increase in population and health care needs and that such decision was made to upgrade the concerned health facilities from Category‐C to B and to enhance human resource, equipment and infrastructure therein.

10.Whatever would be the outcome of

outsourcing these health facilities and whether it will lead to betterment of the masses or would further deteriorate the performance of the health facilities, is mainly the domain of the Provincial Government and relates to governance in the Province. In this respect, the superior Courts lack technical expertise, because, these are complex health policy matters and when the health professionals have recommended, interference by the Courts would not be advisable.

11.The superior Courts of this country are consistent on the point that the superior Courts shall not interfere in policy matters of the Government. “In the

absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain. Consequently, such absolute judicial expansionism offends the principle of separation of powers1”.

“Court under power of judicial review of governmental policy can neither act or represent itself as an appellate authority with the aim of scrutinizing rightness or aptness of a policy nor may it act as an advisor to the executives on matters of policy which they are entitled to formulate2”.

“The wisdom behind non‐interference of courts in policy matters is based on the concept of institutional autonomy which is defined as a degree of self‐governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities... Institutional autonomy is usually determined by the level of capability and the right of an institution to decide its course of action about institutional policy, planning, financial and staff Federal Government Employees Housing Authority Vs Ednan Syed and others (PLD 2025 Supreme Court 11) Gul Zarif Khan and others Vs Government of Khyber Pakhtunkhwa and others (2025 SCMR 415).

management, compensation, students, and academic freedom, without interference from outside authorities" "This is because the courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such policy matters3”.

“It is not the role of the Courts to determine policies and especially those, in which the Court lacks technical expertise. It is the mandate of the Constitution and, is also trite that Courts must confine themselves to legal interpretation. The learned High Court must satisfy itself that there is a breach of fundamental rights vested constitutional/legal rights before any direction is issued.

Such directions must not be based on an understanding of the law which is contrary to the Constitution. Doing so goes against the principle of trichotomy of powers and is against the mandate of the Constitution" "High Court appears to have arbitrarily interfered in a policy matters which it should have been reluctant to do considering that such matters concern complex factors which have a direct impact on the economy of the country4”.

VC Agriculture University, Peshawar Vs Muhammad Shafiq (2024 SCMR 527) PESCO vs SS Ploypropylene (PVT.) LTD., Peshawar (PLD 2023 SC 316)

“We hold that the autonomy, agency and free choice of the employing institution must be respected and be allowed to recruit according to the criteria advertised and anyone overqualified for the said post, if not entertained by the employing institution, the same being an institutional policy, the Court must refrain from interfering in the internal governance of institutions". "This being an internal policy decision of the respondent company, judicial review must tread warily and must not be extended to expand the ambit of the prescribed eligibility criteria, as has been rightly held in the impugned judgment5”.

“Compass and magnitude of judicial review of governmental policy was now well settled and defined in which the court cannot act as an appellate authority with the aim of scrutinizing the rightness, fittingness and aptness of a policy nor it may act as advisor to the executives on matters of policy which they were entitled to formulate6”.

“Internal working of the respondent‐authority (WAPDA) was an administrative and executive function in the domain of policy and unless an illegality or violation of rules and regulations could be shown, non‐interference by the Courts Waqas Aslam Vs Lahore Electric Supply Company Limited (2023 SCMR 549) Syed Azam Shah Vs Federation of Pakistan (2022 SCMR 201)

was the norm‐‐‐Grant of allowance being a policy matter could not be interfered with7”.

“Matters of an academic nature necessitate the need for technical and professional expertise which may only be attained as a result of specialization and the experience of working with and in educational institutions. Courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such matters8”.

“Courts in the exercise of their powers of judicial review, ordinarily, did not interfere with public policy decisions and exercised judicial restraint9”.

“In matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. ... The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides........Under the principle of trichotomy of powers, the Judiciary is entrusted with the responsibility of enforcement of Fundamental Rights, which Abdul Hameed and others Vs Water and Power Development Authority through Chairman, Lahore and others (2021

PLC (CS) 1439).

Yasir Nawaz and others Vs Higher Education Commission and others (PLD 2021 Supreme Court 745).

Messrs Power Construction Corporation of China Ltd. Vs Pakistan Water and Power Development Authority and others (PLD 2017 SC 83).

calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. The discharge of constitutional duty by the State functionaries in deviation to the spirit of the Constitution is anathema to the Constitution and is challengeable on diverse grounds including mala fide and colorable exercise of power for ulterior motive. It is not possible for judiciary to confer validity and immunity to the acts or actions which suffers from mala fide in exercise of power of judicial review. Reference in this behalf may be made to the cases of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v.

President of Pakistan (PLD 1993 SC 473), Wasey Zafar v.

Government of Pakistan (PLD 1994 SC 621), Sabir Shah v.

Federation of Pakistan (PLD 1994 SC 738), Al‐Jehad Trust v.

Federation of Pakistan (PLD 1996 SC 324), Asad Ali v.

Federation of Pakistan (PLD 1998 SC 161), Benazir Bhutto v.

President of Pakistan (PLD 1998 SC 388), Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263), Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57), Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfandyar Wali v.

Federation of Pakistan (PLD 2001 SC 607), In the matter of Reference No.2 of 2005 By the President of Pakistan (PLD 2005 SC 873), Javed Jabbar v. Federation of Pakistan (PLD 2003 SC 955), Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394), Muhammad Mubeen‐us‐ Salam v. Federation of Pakistan (PLD 2006 SC 602), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Mobashir Hassan v.

Federation of Pakistan (PLD 2010 SC 265), Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109), Shahid Orakzai v. Pakistan (PLD 2011 SC 365), Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407), Federation of Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752), Watan Party v. Federation of Pakistan (PLD 2011 SC 997) and Maulana Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641). There is no unfettered power in public law. A public authority possesses powers only to use them for public good. This imposes duty to act fairly. [Food Corporation of India v. Kamdhenu Cattle Feed Industries (AIR 1993 SC 1601) = (1993) 1 SCC 71]. In matters in which the Government bodies exercise their contractual

powers, the principle of judicial review cannot be denied.

However, in such matters, judicial review is intended to prevent arbitrariness or favoritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 = AIR 1979 SC 1628];

Tata Cellular v. Union of India [AIR 1996 SC 11 = (1994) 6 SCC 651]; Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492 = AIR 1999 SC 393]; Air India Ltd. v, Cochin International Airport Ltd. [(2000) 2 SCC 617 = AIR 2000 SC 801]; Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. [(2007) 8 SCC 1], and Suo Motu Case No.13 of 2009: In the matter of Joint Venture Agreement between CDA and Multi‐Professional Cooperative Housing Society (MPCHS) for development of

land in Sector E‐11 Islamabad (PLD 2011 SC 619). In the last mentioned judgment it has further been held that the Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licenses, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner.

Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which themselves are reasonable and not discriminatory. It was further observed that any transaction, which is not transparent, and goes against the interests of the general public constitutes violation of Article 9 of the Constitution, which guarantees right to life to all persons10.

Likewise, the apex Court has also held that “we cannot assume the functions of policy making or determining the priorities of various development projects in the country, which are the exclusive domain and functions of the Federal Asaf Fasihuddin Khan Vardag Vs. Government of Pakistan (2014 SCMR 676)

and Provincial Government. . . It is pertinent to mention here that under the scheme of the Constitution having its structure based on trichotomy of power amongst its different organs i.e. legislature, executive and judiciary, each of its organ has to work and exercise its authority strictly within its mandate, without encroaching upon or usurping the jurisdiction/functions of any other organ of the State11”.

“In exercise of the power of judicial review, the Courts normally will not interfere in pure policy matters ... nor impose its own opinion in the matter" "it would not be in consonance with the well‐established norms of judicial review to interfere ... domain of the executive authority12”.

Similarly, the apex Court also held that “normally in exercise of the powers of judicial review this Court will not scrutinize the policy decisions ... substitute its own opinion in such matters13”.

“We are not called upon to substitute the policy decision taken by the N.W.F.P. Government which was not shown to be arbitrary or unreasonable14”. The Hon’ble Sindh High Court in similar matter also held that “Courts are not that Watan Party and another Vs Federation of Pakistan and others (PLD 2013 Supreme Court 167).

Dr. Akhtar Hassan Khan and others Vs Federation of Pakistan and others (2012 SCMR 455) Wattan Party through its President Vs Federation of Pakistan and others (PLD 2006 SC 697 ) Syed Mufeed Shah and another Vs Principal, Khyber Medical College, Peshawar and others (2006 SCMR 1076).

well equipped to adjudicate the technical matters relating purely to policy decisions specially those of development projects which fall under the domain of executive authority to decide to adjudicate on a policy decision‐‐‐Courts no doubt have a duty to see that in decision making, no law is violated and fundamental rights guaranteed under the constitution are not transgressed15”. This Court in the case16 also held that “Power of judicial review is not a tool for supervising legislative wisdom or engineering social reform through the judiciary, rather it serves as a mechanism to ensure fidelity to constitutional mandates and the legality of legislative and executive actions‐‐‐Courts while engaged in constitutional adjudication do not sit in an appeal over policy choices made by the legislature unless such choices manifestly violate fundamental rights or transgress constitutional limits”.

12.It is also pertinent to mention here that the Hon’ble Supreme Court of the neighboring country (India) upholds the same view of non‐interference in policy matters of the Government. Reference can be made to the case17, wherein, it was held that "process of disinvestments is a Syed Muhammad Alam Shah Vs Province of Sindh and others (2026 CLD 310) Muneeba Zahid (Minor) Vs Govt. of Khyber Pakhtunkhwa and others (PLD 2026 Peshawar 113) Balco Employees Union (Regd.) Vs. Union of India (AIR 2002 SC 350)

policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to 'trial and error' as long as both trial and error are bona fide and within limits of authority". In another case18, the Hon’ble Supreme Court of India has also held that "so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on State of Punjab Vs Ram Lubhaya Bagga (1998) 4 SCC 117

facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive". Further held by the Hon’ble Supreme Court of India that “the duty of the court is to confine itself to the question of legality. Its concern should be: (1) whether a decision‐making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached or, (5) abused its powers. Therefore, it is not for the court to determine whether a particular policy of particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken19”. In another case20, “in policy matters the accepted principle is that the Courts should not interfere, and that they are best left to the wisdom of the legislature or the executive”. It was also held by the apex Court of India that “it is now well settled that the Courts, in the exercise of Tata Cellular VS Union of India (1994) 6 SCC 651 Bhavesh D. Parish VS Union of India (2000) 5 SCC 471

their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy‐making process and the Courts are ill‐equipped to adjudicate on a policy decision so undertaken21”.

13.The core principle derived from the

aforementioned judgments is that policy matter of the Government cannot be interfered with by the constitutional Courts in writ jurisdiction as long as the policy remains within legal and constitutional bounds. The Courts recognize that policymaking involves complex factors, technical expertise, and resource management (e.g., economic regulation) (PLD 2023 SC 316 and PLD 2013 SC 167). The judiciary cannot "assume the functions of policy making or determining the priorities of various development projects" as this is the "exclusive domain" of the Government. The judiciary serves as a guardian of legality, not as a superior policymaker. The Hon’ble Supreme Court of Pakistan has explicitly stated that “it Narmada Bachao Andolan Vs Union of India (2000) 10 SCC 664

cannot act as an "appellate authority" to scrutinize the "rightness" or "aptness" of a policy. The review is limited to the process and legality of the decision (e.g. whether the authority exceeded its powers or committed an error of law22). The Hon’ble Supreme Court of Pakistan has repeatedly emphasized that the legislature, executive, and judiciary must work within their respective mandates.

Encroaching upon the executive’s policy‐making role is viewed as a violation of this constitutional structure.

14.In view of the above, we have not found any violation of fundamental rights or patent arbitrariness or discrimination, besides, the issue relates to the policy decision of the Provincial Government, as such, this Court cannot interfere in such like matters. In view thereof, we find no merit in the instant as well in the connected writ petitions. The same are accordingly dismissed.

Announced Dt:21.05.2026 Senior Puisne Judge

Judge

(DB)Hon’ble Mr. Justice Ijaz Anwar and Hon’ble Justice Ms. Farah Jamshed *Muhammadullah*

“Syed Azam Shah Vs. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another (2022 SCMR 201)”,