Hamid Ullah Vs Government of Khyber Pakhtunkhwa & others

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

W.P No. 4045-P/2025

Hamid Ullah s/o Jauhar Khan Advocate High Court, Peshawar r/o Mohallah Yousafzai Regi, Peshawar.

Versus Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar & Others

For Petitioner: Mr. Faheem Ullah Akhunzada, Advocate. For respondents: Mr. Niaz Muhammad, AAG, Mr. Ali Azim Afridi, Advocate & Mr. Muhammad Ibrar, Social Welfare Officer, Zamung Kor Model Institute for State Children. Date of hearing: 23.12.2025

JUDGMENT

Dr. Khurshid Iqbal, J.

1.Under Rule 32 of the Khyber Pakhtunkhwa Child Protection and Welfare Rules, 2016 (“Rules, 2016”)—framed in exercise of powers under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 (“Act, 2010”)—an Institute Management Committee (“IMC”) is required to be constituted. Sub-rule (1) of Rule 32 envisages that the IMC shall comprise fourteen (14) members, out of whom three (03) shall be official members, while the remaining eleven (11) shall be non-official members. Sub-rule (2) further provides that the non-official members shall be appointed and notified by the Provincial Government. In the year 2019, Rule 32 was amended whereby the strength of the IMC was reduced to seven (07) members, with four (04) members to be drawn from the non-official category. Resultantly, sub-rule (2) was substituted as under:

(2)The non-official members shall be appointed Government, who shall-

(a)be a bona fide resident of the Province;

(b)not more than sixty-five (65) years of age;

(c)have at least Master’s Degree from a recognized University and at least five (05) years’ experience in a Page 1 of 9

public or private sector institution or agency, dealing with the issues concerned with protection and welfare of children; and

(d)not be employed in a Government or semi-Government organization, as the case may be.

2.One Mr. Obaidullah Anwar, Advocate Supreme Court of Pakistan, earlier instituted Writ Petition No. 1920 of 2021, wherein the appointment of four (04) non-official members of the IMC was called into question on the ground that they did not fulfil the eligibility criteria prescribed under Rule 32. On 22.09.2021, the said writ petition was withdrawn after the impugned appointments were themselves withdrawn vide Notification dated 08.12.2020. Subsequently, through Notification dated 13.08.2021, the then existing IMC was dissolved. Thereafter, by virtue of the 2021 amendment (“impugned amendment”) Notification No. 14976-75, SOIII(SWD)/14-48/2021, dated 21.10.2021, clause (a) of sub-rule (2) was substituted to provide that a non-official member shall merely “be a Pakistani National”, while clauses (b) and (c), relating to age, educational qualification, and experience, were omitted. It is this latter amendment (Notification No. SOIII(SWD)/14-48/2021) that has been assailed by the present petitioner, Hamidullah, through the instant constitutional petition in public interest. In addition, thereto, the petitioner has also challenged the appointment order dated 22.01.2025 whereby private respondents Nos. 4 to 6 were appointed as non-official members of the IMC.

3.The principal grounds articulated in the memorandum of the petition are manifold. Firstly, it is contended that the IMC, being entrusted with the responsibility of overseeing and managing the core affairs of the Institute, necessarily requires that its non-official members be persons possessing adequate knowledge, experience, and familiarity with the field of child welfare, rehabilitation, and allied matters. The appointment of private respondents Nos. 4 to 6 as non-official members is, therefore, asserted to be inconsistent with the very object and purpose of the IMC, as they allegedly lack the requisite expertise. Secondly, it is urged that when the respondent-department Page 2 of 9

earlier appointed non-qualified non-official members, such appointments were challenged before this Court, whereupon the respondents withdrew the same, dissolved the IMC, and thereafter introduced the impugned amendment. These successive actions, according to the petitioner, are vitiated by clear mala fides. Thirdly, it is alleged that by making such appointments, the respondent-department has demonstrated an indifference towards the mandate of child protection and welfare and has instead acted to accommodate its favoured persons as members of the IMC. Fourthly, with specific reference to the private respondents, it is contended that respondent No. 4 is a contractor by profession, while respondents Nos. 5 and 6 are medical doctors, and that none of them possess any demonstrated expertise in child welfare and development. On these premises, the petitioner has prayed that the impugned amendment be declared illegal, without lawful authority and jurisdiction, having been introduced for ulterior motives, and be struck down accordingly.

4.In response, the official respondents Nos. 1 to 3, including the department concerned, in their joint comments, have raised the following principal defences. Firstly, it is stated that the competent authority lawfully dissolved the then existing IMC in exercise of powers under sub-rules (5) and (6) of Rule 32. Secondly, it is contended that private respondents Nos. 4 to 6 were appointed strictly in accordance with the applicable rules. Thirdly, it is asserted that the Government possesses the discretion to frame rules as it deems appropriate for the efficient and effective administration of a public-sector organisation (para 12 on facts). Fourthly, it is maintained that both the impugned appointment Notification dated 22.01.2025 and the earlier impugned Notification dated 21.10.2021, whereby the current amendments were introduced, were issued in the best interest of children of the State. Fifthly, with reference to the requirement of a non-official member being a Pakistani national, it is averred that the amended rules have widened the scope of appointment of Page 3 of 9

IMC members so as to enable selection of the most suitable persons from a broad range of professional backgrounds (para “D” of the grounds). Sixthly, it is asserted that respondent No. 5 is a well-reputed member of the Chamber of Commerce and a philanthropist who extends assistance to underprivileged persons from his own resources, while the remaining private respondents are medical doctors by profession, which, according to the respondents, was also one of the eligibility considerations (para “G” of the grounds). On these premises, the respondents have prayed for dismissal of the instant constitutional petition.

5.We heard learned counsel for the parties at a considerable length and perused the record made available to us.

6.The point for determination before us is that whether impugned amendment dated 21.10.2021 is against the aim and objective of the Act 2010, unreasonable, uncertain and travel beyond the aim and objective of the parent Act 2010, as such, liable to struck down.

7.The 2010 Khyber Pakhtunkhwa Child Protection and Welfare Act is aimed at providing “care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk” throughout the Province. To achieve the aforesaid aims and objectives, the law establishes various bodies and institutions, including a Child Protection and Welfare Commission, Child Protection Units, officers and institutions, a Child Protection and Welfare Fund, and Child Protection Courts. It further lays down a detailed mechanism for the rescue, care, protection, and rehabilitation of children at risk. The Act also furnishes a comprehensive definition of a “child at risk”, encompassing, inter alia, a child who is an orphan; has disabilities; is a child of a migrant worker; is working or living on the street; is in conflict with the law; or is living in extreme poverty; as well as a child who is begging, homeless, vulnerable to abuse or exploitation, out of parental control, or imprisoned with the mother in jail. The underlying and dominant purpose of the Page 4 of 9

law is the welfare of children at risk. The Act further creates an effective mechanism for bringing child abusers to justice.

8.The IMC is established and recognized under section 12 of the Act 2010, which reads as under:

12.Establishment and recognition of Child Protection Institution. ---(1) Government may establish and recognize, one or more Child Protection Institutions at such place or places in the Province, as it deems fit commission, inter alia, has the power to establish and recognize child protection institution.

(2)The Child Protection Institution shall not only provide the children at risk with accommodation, treatment, maintenance, and facility for education, but also provide them the facility for the development of their character and abilities and give him necessary training for protecting themselves against moral dangers or exploitations.

(3)The Child Protection Institution shall be managed, maintained and controlled by an independent Institute Management Committee, consisting of such number of official and non-official members as Government may prescribe by rules.

(4)The non-official members shall have such qualifications and shall be appointed for such period as may be prescribed.

(5)For the purpose of sub-section (2), the Institute Management Committee, shall exercise and perform following powers and functions:

policy making of the Child Protection Institution and ensuring that the performance of the Institution and its programmers are efficient and effective; making by laws for running the affairs of the Child Protection Institute;

ensuring that the objectives of the Child Protection Institution Policy are achieved;

overseeing the effective management and providing strategic direction to the Child Protection Institution; approval of financial plans and annual budget of the Child Protection Institute;

raising of funds through donations and grants for the activities of the Child Protection Institution; making by-laws for appointment, terms and conditions of service and disciplinary matters for the employees of a Child Protection Institution;

approval of the vision and mission statement of the Child; approval of the annual business plan;

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(6)Notwithstanding anything contained in section 13, each Child Protection Institution shall have its own fund consisting of grants from Government and contribution from international and donor agencies.

(7)The accounts of the Child Protection Institution shall be maintained in such a manner as Government may prescribe and shall be audited by the Auditor General of Pakistan in prescribed manner.

9.The IMC is a policy-making and governing body of a Child Protection Institution (“CPIs”). It is mandated to assist the CPIs in their effective functioning and in the achievement of their statutory objectives. Through sound and effective management, the IMC provides strategic direction for efficient programme delivery. Its role in managerial and financial oversight ensures that the CPI remains focused on its core functions, namely, the provision of accommodation, treatment, and character development of children at risk, while also ensuring the prudent and efficient utilization of financial resources.

10.Viewed in the backdrop of the statutory scheme discussed hereinabove, and keeping in view the expansive mandate and onerous responsibilities entrusted to the IMC, it admits of no doubt that its members—particularly the non-official members— are required to possess adequate qualifications, relevant experience, and demonstrable familiarity with the field of child protection and welfare to discharge their functions effectively. Indeed, prior to the impugned 2021 amendment, the eligibility framework, as introduced through the 2019 amendment, required non-official members to be bona fide residents of the Province, not more than sixty-five years of age, holders of at least a Master’s degree, and, most importantly, to have a minimum of five (05) years’ experience in a public or private sector institution or agency dealing with issues concerning the protection and welfare of children, besides not being in the employment of any Government or semi-Government organization. The deletion of these substantive safeguards through the impugned amendment is, therefore, striking. An examination of the available credentials of the private respondents further reinforces this concern. The CV of Page 6 of 9

private respondent No. 4, Mr. Shakirullah—annexed by the petitioner and neither disputed nor supplemented by the respondents—does not disclose the requisite educational qualification nor any meaningful experience in the domain of child protection and welfare; rather, it reflects his engagement in construction business and general social welfare activities unconnected with child-related institutions. Similarly, while private respondent No. 5, Dr. Nasir Orakzai, is an accomplished medical professional with impressive qualifications in urology, his credentials do not evince any experience in child protection, welfare, or development. As regards private respondent No. 6, Dr. Khola Irum, although her academic and professional profile— particularly her work in gender inclusion, human rights, and justice-sector support projects—places her relatively closer to child-related social concerns, even her credentials fall short of demonstrating specialized experience in the core field of child protection and welfare envisaged by the statute. In the totality of these circumstances, the appointments of private respondents Nos. 4 to 6, as non-official members of the IMC, appear misaligned with the statutory objectives and functional requirements of the IMC as discussed in the preceding paragraphs.

11.From the foregoing discussion, it stands established that the private respondents, as rightly contended by the petitioner, are not shown to be sufficiently conversant with the field of child protection, welfare, and development. As regards the petitioner’s contention concerning the earlier appointments which were assailed in the previous writ petition, the record pertaining to those appointees was not placed before this Court, nor did the respondent-department offer any substantive comments in that regard. Nonetheless, the subsequent withdrawal of those appointments, followed by the dissolution of the IMC, may reasonably be viewed as lending implicit support to the petitioner’s contention.

12.On the other hand, the respondent-department failed to explain why the earlier IMC was dissolved. Nor did it offer an Page 7 of 9

explanation that the so called prescribed rules under which it has carried out the impugned appointments, provided relevant qualification and expertise. While the government has the power to frame rules (we would avoid using the word “discretion” for the reason of its being inappropriate for rule making), there could be no escaping from the fact that rules made must be in consonance with the aims and objects of the parent law. It is a settled position as enunciated by the Supreme Court in the case of Farukh (SC: 2022)1 that “it is axiomatic that Rules being subordinate or delegated legislation, are framed under the authority of the parent statute, and are therefore subservient to the primary legislation. Rules cannot contradict or add to the clear provisions of the parent statute.” Similarly, in Saleem Ijaz (SC: 2023)2, the Supreme Court while expounding on the rules framing powers held that “...No rule can be framed so as to be in conflict with or in derogation from the statute under which it is framed or in conflict with any other statute, which is not inconsistent with the parent statute under which the rule is framed. However, before declaring so, the court should endeavour to reconcile the rule, that is to say, the rule may be so read, if the phraseology permits it, as to make it consistent with the provisions of the statute.”

13.The impugned amendment plainly falls short of the standards mandated under the parent statute. In this context, it appears entirely misconceived on the part of the respondent- department to suggest that the rules were framed in the so-called “best interest of the state children.” As noted above, private respondents Nos. 4 and 5 cannot, in any realistic sense, be considered qualified or experienced in the specialized field of child protection and welfare. The deletion of clauses (b) and (c), relating to age, educational qualification, and experience, is wholly unjustified and cannot be reconciled with the object and purpose of the Act, 2010. Equally unpersuasive is the contention that widening the scope of appointments to include persons from Farrukh Raza Sheikh v. Appellate Tribunal Inland Revenue and others (2022 SCMR 1787).

Province of Punjab through Secretary, Agriculture Department, Lahore v. Saleem Ijaz and others (2023 SCMR 774).

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across the country enhances the selection process. No evidence has been placed on record to show that a comprehensive country- wide search was undertaken, nor could it be realistically expected that such persons, from outside the Province, would possess the requisite familiarity and hands-on experience necessary to discharge the complex functions entrusted to non-official members of the IMC. In the circumstances, the impugned amendment cannot be read as consistent with the parent legislation, and its effect is to undermine the statutory objectives of the IMC, in clear contravention of the settled principles of delegated legislation as laid down by Supreme Court in Farrukh Raza Sheikh (supra) and Saleem Ijaz (supra).

14.As sequel to our above discussion, we answer the point for determination in the affirmative and strike down the impugned amendment. Consequently, Sub-rule (2) of the 2019 amendment shall stand restored. We are also sanguine that the Government, while making future appointments, shall ensure that non-official members undergo the usual police clearance, with particular attention to any prior record of child abuse or human rights violations, avoid any conflict of interest with child rights institutions, and possess verifiable academic qualifications as well as practical experience in the field of child protection, welfare, and development.

Announced.

(Shahid Ali *JSS*)

Sd x x x x x

JUDGE

Sd x x x x x

JUDGE

(D.B):

Justice Syed Arshad Ali & Justice Dr. Khurshid Iqbal

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