IFTIKHAR HUSSAIN CHAUDHRY, C.J.--- By this single order, I propose to dispose of Writ Petitions Nos.
15481 and 21839 of 1997, which arise out of the same facts.
2. Here is a case of a tragic and woeful tale of a student . Muhammad Usman Qayyum, petitioner had appeared in the Intermediate (Part-II) Annual Examination 1997. On the 3rd of July, 1997, he filed in this Court Writ Petition No. 15481 of 1997, challenging the order, ,dated the .24th of May, 1997 of the Chairman, Board of Intermediate and Secondary Education, Lahore whereby he had directed the initiation of proceedings against the petitioner on the ground that he had been guilty of unfair means inasmuch as the stitches of the sewing machine on his answer sheets did not tally with those of the answer books made available by the Board to the candidates at the Examination centres, and the signatures of the Deputy Superintendent on the questioned answer books of the, petitioner also "seemed fake". Besides initiation of disciplinary proceedings on the complaint of Professor Amanullah Virk, Controller of Examinations of the respondent-Board, FIR No. 179 of 1997 was also registered on the 24th of May, 1997 at P.S., Civil Lines, Lahore u/s. 409, PPC against the petitioner as well as against; (1) Asad Ilyas (Junior Clerk), (2) Sajjad Ahmed Bhatti (Record Lifter),
(3) Abdul Hameed Shaheen (Senior Clerk), and (4) lmtiaz Ahmed (Junior Clerk), all employees of the Board, posted in its Secrecy Branch, as the said four employees of the Board had allegedly, in connivance with the petitioner, broke opened the seals of the bundles of the answer books tampered with the official record. The prayer in the petition took the following form:- "It is, therefore, respectfully prayed that this petition may very graciously be accepted and the proceedings being initiated against the petitioner may very graciously be declared ultra vires of the Constitution, arbitrary, capricious in nature and of no legal effect.
It is further prayed that pending disposal of the main Constitution petition, respondents may very kindly be directed to send the papers/answer sheets of the petitioner for Inter-Board marking in the normal routine according to due process, and result announced in time on normal schedule so that further educational career of the petitioner does not suffer."
When the petition came-up for preliminary hearing on the 4th of July, 1997, a learned Judge of this Court direct the respondent-Board to furnish parawise comments. It was further directed: "Meanwhile no action adverse to the interest of the petitioner shall be taken on the basis of the decision taken on 24.5.1997." When the petition again ,came-up for hearing on 4th of August, 1997, it was noticed that the respondent-Board had not furnished parawise comments. As an interim measure, the following order was passed:- "It is submitted that the petitioner has a good academic career, but is being victimised on grounds which could only be described as mala fides, that in the criminal case registered on the basis of the order dated 24.5.1997 the Investigating Agency has declared the petitioner innocent, that the respondent-Board is not, sending the papers of the petitioner for marking as a result of which his result would not be declared and he will lose an academic year which will cause irreparable loss to him, It is prayed that the papers of the petitioner be got marked in accordance with the rules and his result may be declared provisionally. The request is genuine. I, therefore, direct the respondent to .Get the petitioner's papers marked and declare his result in due course provisionally which shall always be subject to the result of this writ petition."
On the one hand, the respondent-Board applied vide C.M. No. 2 of 1997 for recall of the afore- mentioned orders, dated the 4th of July and 4th of August, 1997 and, on the other, challenged the same before the Supreme Court by filing Civil Petition No. 1190-L of 199 /. 'CMA No. 747-L of 1997 filed in the said petition for interim relief, seeking suspension of the two orders of this Court, came-up for hearing on 18th of September, 1997 when the following order was passed by the Supreme Court:- "An inquiry is statedly pending against the respondent/Muhammad Usman Qayyum. Charge sheet was issued but was withdrawn on receipt of the order dated 4.7.1997 of the High Court. Learned counsel for both the parties state that in the interest of the student it would be appropriate to have the inquiry conducted and as such the petitioners be allowed to serve the detailed charge sheet on the respondent indicating the infringement of the status so that proper defence is made by the respondent candidate. Let the charge-sheet with the statement of allegations be served on the respondent and the matter be proceeded in accordance with law and inquiry completed by the end of this month.
This order will not debar the respondent candidate to make appropriate defence either before the Committee or before the High Court, by challenging the validity/legality of the show-cause notice an the inquiry in accordance with law. The writ petition pending before the High Court will of course be decided on its own merits as the same has not been touched upon by this Court in this order."
On the same day, when the Supreme Court passed the above order, the respondent-Board served on the petitioner a charge-sheet with the following allegations:- Thereafter, to be exact on the 27th of September, 1997, the petitioner filed Writ Petition No. 21839 of 1997 complaining of violation of the order of the Supreme Court whereunder the respondent-Board was to serve On the petitioner "charge-sheet with the statement of allegations". The precise grievance voiced through this second writ petition was that the allegation in the charge-sheet was unspecific and vague and no "statement of allegations" had been furnished. When the writ petition came-up for preliminary hearing on 29th of September, 1997, a learned Judge of this Court while directing the respondent-Board to submit a detailed written reply to the writ petition, gave the following further direction:- respondents shall abide by, the direction of the Supreme Court with regard to the service of the detailed charge sheet with the statement of allegations in letter and spirit."
It is common ground between the parties that no detailed charge sheet or statement of allegations was thereafter served on the petitioner and the respondent--Board proceeded to conclude the enquiry on the basis of the earlier charge sheet. The Enquiry Report, in sealed envelope, has been produced before me and I have glanced through, the same, as well as the evidence on the basis of which the finding of guilty has been recorded against the petitioner.
3. I have heard learned counsel for both the parties and have scanned through the record. .
4. Before attending to the contentions raised on behalf of the parties, let us have a look at the academic career of the petitioner. Originally, he was educated at Crescent Model School, Lahore.
He obtained 73% marks in the 7th Class, and secured 5th position in the 8th Class. He further improved his position and ranked third in the 9th Class. In the Secondary School (Annual)
Examination, 1995 (Science Group) conducted by the respondent-Board, he secured 742/850 marks. He was awarded scholarship. The petitioner then joined Government College, Lahore. In Part-I of the Intermediate (Annual) Examination, 1996 held by the, respondent-Board, the petitioner appeared under Roll No. 107147. Though in all other subjects, he secured exceptionally good marks, but in the English Paper, he was awarded only 5/100 marks. Disgusted with the said result, he applied for re-checking of the said paper: Having heard nothing from the Board, his father, Who is a retired Captain of. The Army, waited upon . The concerned . Functionaries of the respondent-Board, including its Chairman and in this process allegedly there was an exchange of hot words amongst the petitioner's father and the Chairman of the Board, because of unreasonable delay by the Board in getting the English Paper of the petitioner re-checked and to declare his result. The anxiety on the part of the petitioner, or for that matter of his father, appeared to be for the reason that the Board had already 'issued the Date Sheet of Intermediate (Part-II) Annual Examination which was scheduled to be held on the 3rd of April, 1997 and the petitioner's fate was still in a lurch, till the end of March, 1997. It appears, better sense prevailed upon Board's functionaries, when petitioner filed an application on the 31st of March, 1997 and his result of Intermediate (Part-I) Annual Examination 1996 was declared on the same day, viz. 31st of March, 1997, showing that he had secured 78/100 marks in the English Paper, though originally he was awarded only 5/100 marks in the said paper. In the aggregate, the petitioner having secured 469/550 marks, he stood First in the Board amongst the successful, candidates of the said examination. In, meantime, in December, 1996 Sent-Up examination conducted by his own educational institution, viz. Government College, Lahore, he got 74% marks and secured third position. Now comes the fateful year, when the Intermediate (Part-II) Annual Examination, 1997 was held by the Board. The petitioner appeared in the said examination under Roll No. 6729 from the Centre established at Government Central Model School, Rattigan Road, Lahore. As mentioned above, on the 24th of May, 1997, after the Examination was over, on the one hand a case of "unfair means" was made against the petitioner and, on the other, FIR No. 179/1997 was lodged on the same evening at 7.00 p.m., at P.S. Civil Lines, Lahore, for an alleged offence committed on the. 22nd of May, 1997, J n twin allegations, viz. (i) that the stitches of the answer-sheets of the petitioner in the subjects of Physics, Chemistry, Mathematics, English and Urdu did not coincide with the stitches of the answer-sheets provided to the Centre Superintendent by the Board, and (ii) that the signatures of the Deputy Superintendent "seemed fake". The petitioner then filed in this Court, Writ Petition No. 15481 of 1997 wherein a learned Judge of this Court directed the respondent-Board to get the petitioner's papers marked and to declare in due course his result provisionally.
Unnecessary details apart, result provisionally declared on 10th of October, 1997 showed that the petitioner had obtained 951/1100 marks. The petitioner then got admission in the University of Engineering and Technology, Lahore. In the First Year Examination of B.Sc. (Civil Engineering) held by the said University, the petitioner obtained 1041/1250 marks and secured First position in order of merit. In the Second Year Examination, he was awarded 1009/1250 marks and again he stood First.
Similarly, in the third year. Examination, he once again secured First position by obtaining 1119/1250 marks. As usual, in the Final Year Examination, held in 2002, once again he stood First (with Honours) by securing 1113/1250 marks. Besides, he' was decorated with the following distinctive Medals for the best performance in the Final Year B.Sc. (Civil Engineering) Examination:-
(1) NESPAK M l, eda , (2) Sheikh Ahmad Hassan Medal, (3) UNIVERSITY Medal,
(4) Yousaf H. Shiraz! Medal,
(5) Sarfraz Ahmed Gold Medal, and (6) Shams' Medal.
With the above bright academic career of the petitioner, this aspect of the matter does not come to an end. The Communication and Works Department of the Government of the _Punjab gent a requisition to the Punjab Public Service Commission for recruitment to the posts of Assistant Engineers (Civil) in BS-17. The Punjab Public Service Commission arranged a competitive written examination and thereafter interviewed those who had successfully cleared written test. In the result declared on the 5th of September, 2003, the petitioner, having topped the merit list prepared by the Commission of 20 finally successful candidates, was recommended for appointment as Assistant Engineer (Civil) in BS-17. It is a trite saying that the blinds never run on the same wall, because they too get educated from past experience. The level of intelligence exhibited by the petitioner which has worked wonders ever since filing of the first Writ Petition No. 15481 of 1997 cannot, therefore, be ignored altogether while forming opinion whether the petitioner can reasonably, and without any doubt, be held to have done the wrong attributed to him, or the conduct of the Board's functionaries may have possibly contributed towards the unfortunate situation.
5. Sheikh Shahid Waheed, learned counsel of the respondent -Board has objected to the maintainability of, this petition by making the following submissions:-
(i) With reference to the afore-quoted prayer clause of the first writ petition, it is contended that a Constitutional petition is not competent to pre-empt action by the Discipline Committee of the Board. In support of the submission, he has placed reliance on National Steel Re-rolling Mills v.
Province of West Pakistan (1968 SCMR 317), Virasat Ullah v. Bashir Ahmed (1969 SCMR 154), Muhammad Mahmood A.I v. Pakistan (1984 CLC 142), Shagufta Begum v. The Income-tax Officer (PLD 1989 SC 360) and Mir Nabi Bakhsh Khan Khoso v. Branch Manager, NBP (2000 SCMR 1017).
(ii) That since the allegation against the petitioner is that his answer books were fictitious/bogus, the presumption was inherent, and his involvement was obvious. Learned counsel augmented his submission by relying on Masood Pervaiz v. The Disciplinary Committee, University of the Punjab, Lahore (1982 SCMR 1084) and Muhammad Nadeem Anwar, etc. v. Islamic University, Bahawalpur, etc. (KLR 1999 Civil Cases 65).
(iii) That the petitioner-examinee being alone the beneficiary, insistence on direct evidence tantamount to asking for impossible. Support for this submission has been sought from Akhtar A.I v.
University of the Punjab (1979 SCMR 549), Board of Intermediate and Secondary Education, Sargodha v. Muhammad Rafique (PLD 1991 SC 231), Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore (1977 SCMR 213), Faiza Malik v. Chairman, Board of Intermediate and Secondary Education (PLD 1992 SC 324), Nasir Saeed v. Federal Board of Intermediate and Secondary Education,' Islamabad (1998 SCMR 710), Muhammad Naveed Akhtar v. The Vice- Chancellor, University of the Punjab, etc. (NLR 1999 Civil 254), Salman Raiz Chaudhry v. Board of Intermediate and Secondary Education, Lahore (1999 YLR 1229) and Haider All v. Board of Intermediate and Secondary Education (PLJ 1999 Lah. 1067).
(iv) That the pendency of a criminal case, or even a verdict of acquittal, cannot be a ground for restraining the Board from taking action against a candidate guilty of unfair means. The decisions reported as Syed Amir A.I Shah, etc. v. Islamic University, Bahawalpur (NLR 1999 Civil 56), Nasir Saeed's case (supra) and Muhammad Yasin v. Chairman, Board of Intermediate and Secondary Education, Sargodha (2000 CLC 885) have been referred to in support of this contention.
By relying on Muhammad Naveed Akhtar v. The Vice-Chancellor, University of the Punjab, -etc. (NLR 1999 Civil 254) and Malik Habibur Rehman v. Siddique Ahmed Khan (PLD 1972 Lah. 8) it is contended that while exercising the Constitutional jurisdiction this Court cannot arrogate to itself the functions of a Court of Appeal to determine the sufficiency or adequacy of evidence or its high credibility.
(vi) That the improvement of status by a candidate can be of no avail to him when the monument of success is erected on fraud/misrepresentation. In support of this contention, reliance is placed on Muhammad Kamran Asghar V. Board of Intermediate and Secondary Education, D.G. Khan (1999 YLR 1019), Farukh Din v. Government of Sindh (PLD 2000 Kar. 154) and Mst. Jameela Kausar v. Board of Intermediate and Secondary Education (2003 CLR (SC) 713).
(vii) The decision of the then Chief Justice of this Court whereby (1) Writ .Petition No. 23210 of 1997 filed by Imran Riaz, (2) Writ Petition No. 23211 of 1997 filed by Shahzad Nawab Khan, and (3) Writ Petition No. 2811 of 1997 filed by Ambreen Imtiaz, who were candidates at the same examination and against whom similar allegations were levelled, were dismissed, have been relied upon to contend that persons placed in similar circumstances should be dealt with alike.
6. In Virasat Ullah v. Bashir Ahmed, the Supreme Court refused leave against the decision of the High Court holding that mere issuance of notice by the Settlement Commissioner calling upon the petitioner, claiming to be the transferee of an industrial unit, to justify the transfer, could not furnish a basis for a Constitutional petition. A show-cause notice issued the petitioner, a civil servant, in the case reported as Muhammad Mahmood A.I v. Pakistan was challenged through writ petition before the Peshawar High Court and a Division Bench of that Court held that the petition was not only premature, but the petitioner had alternate remedy against the final order, when made, before the Service Tribunal. In National Steel Rolling Mills v. Province of West Pakistan, an opinion rendered by the Labour Department on a query raised by the Director of Labour Welfare whether a subsequent notification on the subject automatically cancelled the prior notification was inter a/ia made basis for filing a Constitutional petition in the High Court on the apprehension that based on that opinion the Government might enforce the first notification fixing minimum wages for workers of all kinds employed in the Steel Re-rolling Industry from the date of its issue till it was superseded by the setond notification. By holding that pursuant to the said opinion no decision having been taken by the Government, the writ petition was not competent, being premature and possibly an attempt to anticipate any action that the workers might take to enforce their claim for arrears on the basis of the notification in question. In Shagufta Begum v. The Income Tax Officer, (supra), the proceedings arose out of a notice issued by the Income Tax Officer to the petitioner-assessee to show cause why the assessm ent should not be reopened in terms of Section 65 of the Income Tax Ordinance.
The Supreme Court upheld the decision of the High Court dismissing the writ petition, by observing that the petitioner should in the first instance, approach the departmental forums, and also to pursue the normal channels of appeal/revision/reference to the higher departmental forums. In Mir Nabi Bakhsh Khan Khoso v. Branch Manager, NBP (supra), the petitioner was a guarantor to the grant of a loan, and feeling aggrieved by a notice issued by the Bank for recovery of loan, approached the High Court in Constitutional jurisdiction for issuance of a writ in the nature of prohibition which having been dismissed, he approached the Supreme Court. Leave was refused by observing inter alia that the remedy of writ was premature because no adverse action had been taken against the petitioner. Here, the case of the Board itself is that during pendency of proceedings in this Court, charge sheet was served on the petitioner and the Committee constituted for the purpose of enquiry has given verdict against the petitioner. It is, therefore; not a case of apprehended action, rather where proceedings have reached almost logical conclusion. It is settled law that developments taking place during pendency of lis cannot be excluded from consideration, rather notice should be taken thereof. In the circumstances, the objection to the maintainability of the first petition fails and is hereby repelled.
7. So far as the case-law cited in support of the other contentions is concerned, reference may be made to ratio decidendi of each case in order to determine whether the same can be applied to the facts of the present case; In Masood Pervaiz v. The Disciplinary Committee, University of the Punjab, Lahore (supra), the candidate was found to have smuggled into, for substitution in place of the original answer books, sheets which were not in his handwriting. Relying on an earlier decision in Ahmad and 3 others v. University of Engineering and Technology (PLD 1981 SC 464), it was held that it raised a strong presumption against the candidate and that the quantum of material for reaching a finding of fact was within the exclusive field of the authorIties concerned and that the High Court had rightly refused to interfere. Thus, there was material available against the candidate connecting him with the commission of unfair means. . Books, and that the substituted sheets were not the same as were made available to them in the examination hall which allegation was based on various visible factors, including the reason that the signatures of the Secrecy Officer at the end of the answer sheets were also bogus. It was, in these circumstances, held by a learned Single Judge of this Court that the petitioners being direct beneficiaries of the substituted sheets, they could not escape liability.
1977 SCMR 213), the Head Examiner inflated appellant's marks, manifestly for benefit of the appellant and on his inducement, though the Head Examiner, was not competent to increase or decrease marks assigned by the sub-examiners and in' case he thought that the candidate was entitled to more marks, he should have referred the matter to the Chairman who, under the relevant rules, was to appoint a third examine or refer the matter to committee of courses for decision, subject to final approval by Chairman. The writ petition filed by the appellant having been dismissed by the High Court, he approached to Supreme Court, but failed. Thus, it was a case where the act of the Head Examiner in inflating the marks could not be of benefit to any other person except the petitioner.
'A' and 'B' of Chemistry was yet to be held, secret information was received by the Board that answer books of certain candidates were being replaced/substituted at a particular Examination centre. The Controller of Examination deputed an official of the Board to collect the scripts of the candidates directly from the centre and bring the same to the office of the Examination Branch of the Board. It was done and papers were got examined from the examiners in the normal course. It was detected that 19 candidates who had faired very well in all, other papers earlier held had done miserably in the two papers 'A' and 'B'
Chemistry which had been collected directly from the centre. The wide gap between their performance led to further enquiry and it was found that their earlier scripts did not bear the 'authorized genuine signatures of the Deputy Superintendent of the Examination Hall. By serving charge-sheet on the appellant of the precedent case, he was then confronted with the offending material and after proper enquiry he was disqualified from four examinations. His writ petition having been accepted by the High Court and the Board having failed .Before the ICA Bench, approached the Supreme Court which allowed Board's appeal, by observing as follows:- "8. The appeal Bench of the High Court has gone by the proof of actual forgery of the signatures.
That was not the matter in issue. The matter in issue was whether genuine scripts of the candidate have been evaluated by the examiners in the earlier papers. The respondent himself was the beneficiary of the malpractice. His participation in it has to be assumed just as a person in possession of the stolen goods soon after the commission of an offence of theft is saddled with incriminating knowledge. In such cases to insist upon a direct evidence is to ask for the impossible.
Such cannot be the demands imposed in domestic enquires relating to educational institutions where underserved benefits obtained by fabrication, forgeries or substitution of records have to be attended to.
9. In rendering the judgments the value system prevailing in the society should not be disturbed on technical grounds. It was obvious as a result of the enquiry starting from the complaint to the evaluation of the scripts that the result could not stand and it suffered from an inherent taint which nothing could sanctify. In such a situation, the quashment of the result should not have been interfered with.
None of the Courts have doubted the fact that the scripts, those that were earlier evaluated, were non-genuine. The only question to which the Courts addressed themselves was whether the respondent was afforded adequate opportunity to meet the allegations and whether he was personally responsible/liable for such substitution which was found to exist as a fact. On that depended the penal part of the order disqualifying the respondent from future examinations."
Secondary Education, the petitioner who had appeared in the Intermediate Annual Examination, 1997 and declared successful, applied for re-checking of Physics Paper 'A'. The Chief Secrecy Officer found that the marks 'obtained by the petitioner inside the answer sheet did not tally with awards given in relevant column on toe of answer-sheet, Smelling foul-play, all remaining papers of the petitioner were re-checked, and it was found that of eight other papers answer-sheets were bogus inasmuch as the same nad not been printed or issued by the Board. The petitioner was proceeded against for having employed unfair means and was consequently ' disqualified for three years to appearing any examination. His appeal having been dismissed, the petitioner filed a Constitutional petition in this Court which was dismissed by observing that it was not denied that answer sheets with 'regard to which action was taken were in petitioner's own handwriting and bore his own 'roll number and he being admittedly beneficiary could not absolve himself of being privy to malpractice.
1982 SCMR 1084) it was held that the Disciplinary Committee was the exclusive judge of the sufficiency or quantum of material for reaching a finding of fact as to the guilt of the student. It was further held that, once the High Court finds that there was material/evidence available against a candidate, it could not interfere in Constitutional jurisdiction merely on the ground that the material/evidence was not of a high credibility. Thus, the availability of material/evidence against the candidate was held to be a sine qua non for disciplinary action. unearthed the deception played by the petitioner,' and issued him a notice to show cause as to why his result should not be cancelled. The petitioner failed to respond to the show-cause notice, consequently his result was cancelled quashed and he was directed to surrender his result card.
The petitioner then approached the Chairman, D.G. Khan Board begging mercy for himself and for condonation of the violation committed by him. In the meantime, the petitioner filed a Writ Petition in the High Court which was dismissed by a learned Judge. Of this Court by observing that the petitioner's failure to adequately respond to and avail of all such opportunities was quite understandable as the evidence available against him was entirely documentary and the legal position in that regard was also crystal clear; that even during arguments addressed before the learned Judge, the learned counsel for the petitioner could not contest, explain or justify the deceptions played and misrepresentation made by the petitioner at different stages of the matter; that before the Board as also before the High Court the petitioner had mainly abegged pardon and mercy which could hardly be a ground to declare an action to be without lawful authority; that the objection as to issuance or service of a paper show-cause notice loses its sting as well as relevance in a case where a petitioner fails to show good cause in this Court or is not possessed of any plausible explanation regarding the violations `alleged against him; that this Court has a discretion to issue or not to issue a writ where a case is otherwise made out for issuance of a writ on the merits of the case, but this Court has no jurisdiction to issue a writ in its discretion where.
Otherwise no case is made out on merits for issuance of a writ; that in the circumstances of the case the passionate plea, based on personal hardship and adverse effects o the petitioner's career and future prospects who had in the meantime become a full-fledged and duly qualified M.B.,B.S. Doctor, cannot persuade the Court to exercise its discretion in petitioner's favour; that if mere sympathy for a litigant's cause :could be allowed to confer jurisdiction on a Court, then the same would be a sure recipe for judicial anarchy which this Court resolutely loathed promoting; and that the plea squarely based on efflux' of time since the illegalities committed by the petitioner and, improvement of his status during the interregnum had seldom found favour in such cases because the discretion of this Court is generally not exercised where it perpetuated an illegality or sustained retention of ill-gotten gains or in favour of a person coming to the Court with unclean hands. Relief was refused to the petitioner by further observing as follows:- "In the present case it was on the quicksand of falsehood, misrepresentation and deception that the petitioner had erected his monument of success. He trampled the law for this personal ambitions and gains. He achieved improvement of his marks by lowering of his ethical standards.
He did that for getting into the medical profession. To him the end justified the means. Little did he know that the illegal and unethical means adopted by him for getting into the noble profession of medicine by themselves inherently disqualified him from an entry to such an ethical profession.
The unfortunate plight of the petitioner has, thus, failed to evoke my sympathy."
The precedent case thus proceeded on its own peculiar facts which have no nexus with those of the present case.
8. Keeping in mind the above principles, Jet us examine merits or demerits of the instant case. The sheet anchor of the case of the respondent-Board is the report, dated the 24th of May, 1997, of its Chief Secrecy Officer. A bare perusal of the report makes an interesting, rather a dismal reading.
According to this report, as originally prepared, its author (Chief Secrecy Officer) commenced it by writing: "During my inspection of the Bundles received from the "centres, I found some Bundles tempered with" whereas it is open to a naked eye that the writing preceding the word "during", viz. "keeping in view of the complaint lodged by Mr. M. Wagar Ahmed" and had been added at some subsequent stage. Be that as it may, according to the said report, the Chief Secrecy Officer had inspected "Bundles received from the centres" and "found some bundles tempered with". He "opened one of the tempered bundles" and "found one script bearing roll number 6729 to be a fake one" which "was in the subject of Physics Part II." The report further goes on to mention that the Chief Secrecy Officer thought that he should open the second tampered bundle and on scrutiny he found the script of the same roll number to be similar fake one. The said Officer then statedly opened five such bundles in the subject of Physics, Chemistry, Mathematics, English and Urdu, Part.
II, and in each bundle the script of the same roll number was found fake. Then comes the basis on which the Chief Secrecy Officer formed his opinion, the same, in his own words, being as follows:- "The stitches of the sewing machine were different from the stitches of the Board. The signatures of the Dy. Supdt. Seemed fake." which. Found the allegations baseless. The stand taken by the Board in its reply and parawise comments vide reply to paragraph 3 of the writ petition took the following form:- "On trial the allegations could not be proved, therefore, the petitioner was absolved of these charges."
9. There is yet another important aspect of the matter. The Board's own case is that strict measures had been taken to ensure safe custody of the answer books. Two Secrecy Officers had been deputed for the purpose. Ch. Abdul Hameed, ex-Principal, Islamia College was always on, duty right from 12.00 noon till all the papers of the morning. Session had been completely received in the Secrecy Branch of the Board, and Ch. Riazud Din, ex-Divisional Director Audit used to remain on duty from 4.30 p.m., till all the papers of the evening session had reached the Secrecy Branch of the Board. The key of the Secrecy Room used to remain with the said Ch. Riazud Din and the latter before leaving the Board's premises always sealed the Secrecy Room, and handed over the key either to Mr. Muhammad Athar Khawaja (Chief Secrecy Officer) or to the other Chief Secrecy Officer. Thus, according to Board's own case, there was foolproof system for security of the answer books in the Board's. Office.
10. The only other allegation on the basis of which the genuine nature of the answer books of the petitioner was doubted was that the signatures thereon of the Deputy Superintendent of the Centre "seemed fake." During investigation of the criminal case, it was established that on the questioned answer books of the petitioner, signatures of the Deputy Superintendent were genuine. Thus, the entire fabric of the Board's case withered away because it is not the case of the Board that the Deputy Superintendent of the Centre was in connivance with the petitioner, whereas the 'officials of the Secrecy Branch have been held to be responsible for substitution of the answer books. If the alleged substitution had taken place, as per Board's own case, either during transit of the answer books from the examination centre to the Board's office or while in the Secrecy Branch, the genuine signatures of the Deputy Superintendent on the questioned answer books could not have been there unless, of course, the Deputy Superintendent had been in league with the petitioner, which is not the case of the Board. For this reason also, the Board's plea that the answer books of the petitioner were not the same which were supplied to him at the examination centre is based on no evidence at all, rather conceived out of mere suspicion. Needless to mention that the burden of establishing and bringing home the charge of unfair means remains on the Board. Mere morbid suspicions cannot be permitted to be a good reason to hold a candidate guilt of unfair means The facts and circumstances should be such as to convince the conscience of the Court about the involvement of the candidate. Vague suspicions, as in the instant case, cannot be made the standard to regulate the Court's vision. In Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore (PLD 1971 SC 838) it was held as follows:- "It is true that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without. Any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence."
11. Here is a case where the previous history cannot be excluded altogether from consideration. The petitioner was securing First position in the Board in Part-I of the intermediate Examination. To exclude him from the Investiture Ceremony, it was shown that he had obtained only 5/100 marks in the English Paper.
Upon re-checking of the same paper, he was found to have secured 78/100 marks, but his standing first in the examination was of no consequence to the petitioner as he had neither been able to participate in the Investiture Ceremony nor he got publicity at the relevant time which was hard earned and was his due. The long repose on the part of the Board in getting the petitioner's English Paper of Part-I of the Intermediate Examination and the consequent delay in declaring his result became a ground for brawl between the petitioner's father and the Chairman of the Board and they had allegedly hurled abuses on each other. Thereafter, the manner in which the Chief Secrecy Officer suspected substitution of answer books of the petitioner was also unusual. Firstly, as per his report, dated the 24th of May, 1997, it was during his inspection that he noticed the fake nature of the petitioner's answer books. Then, he took refuge under an alleged complaint by "Mr. M. Waqar Ahmed" who, during investigation of the criminal case, could not be traced, because he had not given his complete address. Strangely enough, the complaint filed in the name of Muhammad Waqar Ahmed was by a "student" but on a . Paper which was used in the office as is clear by the writing "Notes" on the left corner of the paper on which the complaint was inscribed. Further, although in the complaint it was mentioned that "Asad" an official of the Secrecy Branch of the Board was indulging in stealing answer books at large scale from the Board's office and used to substitute the same after the same, had been attempted by the candidates outside the examination centres in place of their genuine answer books, yet the complainant knew only the petitioner's roll number and of none else. The complaint, on the face of it, appears to have been manipulated, besides being fake. If "Asad" had stolen away the answer books from the Board's Office before the same had been sent to the Deputy Superintendent of the examination centre, then how could the same bear genuine signatures of the Deputy Superintendent, as has been established during investigation of the criminal case. In the FIR, the date of commission of offence was definitely stated to be "22.5.1997" which was the date of the complaint manoeuvred in the name of "Muhammad Waqar 'Ahmed". The proceedings for unfair means case and for registration of criminal case were initiated and completed in one go on the 24th of May, 1997. The conduct of the Board's authorities, in the circumstances, does not appear to be beyond doubt. Therefore, this Court's power of judicial review is not excluded.
12. The matter can be looked at from yet another angle. As per the so-called complaint, the author thereof had the information that Asad, the official of the Secrecy. Branch of the Board, used to bring to the petitioner's house his answer-books after one or two days of each paper, and after the same had been attempted by the petitioner the same were taken by Asad to the Board's Office for being restored at the relevant place. It is further stated that the petitioner used to solve one or two questions in the examination centre, or would write by leaving one line, and would Leave the examination hall before time. The petitioner had allegedly employed the same methodology in Part-I Examination as well. The person who rendered the alleged secret information posed himself to be a student. If so, how he could pry into highly secret documents, i.e., answer-books. He does not claim to be a friend either of the petitioner or of Asad. None of the two could place into his hands the answer-books of the petitioner. How did he know that the petitioner had resorted to unfair means in Part-I Examination is no less a mystery. Above all, if he had the information of wrongdoing, right in the beginning when the examination was still in progress, why his so-called altruistic conscience had a long repose till after the exammation was over, as he is shown to have made the complaint only on the 22nd of May, 1997. All these circumstances cast serious doubts on the genuineness of the complaint itself. Thus, the ma/a fide attributed to the functionaries of the Board by the petitioner are not without substance. In the case of Mst. Shagufta Begum, relied upon by the learned counsel for the respondent-Board himself, it was authoritatively laid down as follows:- "This, however, would not apply to cases of ma/a fide, particularly when the allegation is that the departmental authorities on account of political or other reasons would either be not free to decide correctly or on account of their own departmental compulsions be prejudiced in rendering a particular verdict."
""It is to be remembered that in the petition the allegation of arbitrariness and mala fide of the entire proceedings had been made. The High Court in the circumstances was justified to attend to that aspect of the case and to observe that on the material produced before it, there did not exist any case or any sufficient ground which could have been made the basis of any disciplinary action or inquiry against the student concerned."
PLD 1971 SC 838) it was unequivocally held that the mere ground of being a direct beneficiary would not be a substitute for proof and, therefore, the candidate could not be held responsible for the mischief. In the case of Akhtar A.I (supra) again cited by the learned counsel for the respondent himself, their Lordships were mainly influenced by the.Fact that the appellant in that case had failed in the earlier two attempts and when his result was withheld due to non-deposit of fees, instead of deposing the fees, he managed a fake and fictitious notification showing him to have passed. The case of the petitioner herein stands on altogether a different footing. He had an excellent bright academic career before as well as after the fateful year.
12. Doubtless, the Writ Petitions filed by lmran Riaz, Miss Ambreen lmtiaz and Shahzad Nawab Khan, who appeared alongwith the petitioner in the same examination, had been dismissed by the then learned Chief Justice by short orders, but the facts of those cases are distinguishable from those of the present case. In those cases, the allegations which stood proved during enquiry were--
(i) The signatures of the Deputy Superintendent were forged on the answer books of the said three candidates named above.
(ii) Board's answer books were embossed whereas those of the said three candidates were not embossed.
(iii) Each page of the genuine answer books supplied by the Board contained 23 lines whereas the questioned answer books contained 4 lines.
(iv) The stitches of the questioned answer books were different from those of the Board.
13. For the foregoing reasons, I am of the considered view that the case trumped up against the petitioner is destitute of any valid foundation, and there is not even a shred of valid piece of evidence in support of the allegations which were conceived out of mala fides on the part of the concerned functionaries of the Board. ,Consequently, both the writ petitions are allowed, the proceedings of unfair means initiated, as well as the verdict of guilty recorded 'against the petitioner, are declared to be illegal and without lawful authority, with the result that the same stand quashed. There shall, however, be no order as to costs. .