1. MIR HAZAR KHAN KHOSO, J.-The material facts leading to thin consti--tutional petition are that the petitioner a domicile resident of District Sibi after qualifying himself for Matriculation Examination in the year 1970 from Government High School, Harnai pursued his further studies in the Government College, Sibi from where he cleared his F. Sc. Examination with 388 marks in third division from the University of Baluchistan in the year 1972. To improve the third division, the petitioner as private candidate submitted examination form for annual examination of 1973. Due to illness he could not appear in the examination. However in two attempts I.e. Annual and Supplementary Examinations of 1975, he passed F. Sc. In second division. Besides, simultaneously in the same year he in the Annual and Supplementary Examinations cleared his B. A. Examination. On basis of his improved F.
2. So. Examination, the petitioner succeeded in getting admission in the Bolan Medical College, Quetta. However the facts of improving his division against the rules were disclosed by a vying candidate to the authorities. In pursuance of such disclosure, the respondent No. 1 withdrew his improved F. Sc. Result on account of his fraudulent action. The petitioner agitated before the respondent No. 1 that the action was taken without a notice to him. He therefore requested for copies of certain documents including reasons of the action taken. But all his efforts in this respect ended in vain. However, on 20th June 1977 the Principal, Bolan Medical College served a show- cause notice upon him for cancelling his admission from the Bolan Medical College, on the ground that his improved F. Sc. Examination was in violation of the University Rules. The petitioner re- agitated that the action was without notice and he reminded the respondent No. 1 to supply him the copies and reasons of his action. Whereupon the respondent No. 1 informed him that his case was referred to Principal Law College, Quetta for opinion. However again on 23rd August, 1977, the respondent No. 1 informed the petitioner that his result was canceled on the grounds :-
(1) that F. Sc. Examination form of 1975 did not mention the fact that the petitioner was improving his division ;
(ii) that the University Rules restricted improvement of division in one chance, whereas the petitioner had passed it in two ;
(iii) that the petitioner had to re-appear in the examination one year before the next higher examination, whereas he bad taken the higher as well as the F. So. Examination in the same year; and
(iv) that he had appeared in two examinations simultaneously in contravention of the University Rules, which prohibited from doing so.
3. The petitioner failing to get any other adequate and effective remedy has filed the constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan and has assailed the decision of the two respondents and has further prayed that the same orders be declared as to have passed without lawful authority.
4. At the outset it was contended by Mr. Basharatullah, the learned counsel for the petitioner that the respondent No. 1 had erred in his finding that the petitioner had not disclosed in his examination form of 1975 (Annual) that he was improving his division. According to him the petitioner bad given full particulars in his form. Mr. S. H. Jaffri, the learned counsel for the respondent No. 1 was directed to produce the original form before us. However he reluctantly produced the same. We found that the petitioner had fully given the particulars in the form. Indeed Mr. Jaffri had no explanation for the same.
5. It was next contended by Mr. Basharatullah that the impugned orders were passed without.
6. Affording the petitioner an opportunity of being heard in clear violation of the principles of "Audi alteram parten". There is substance in his argument. The decisions dated 10th June 1977 Exh. B and A 23rd August 1977 Exh. H show that the petitioner was neither heard nor given notice thereof. The decisions are reproduced here :- "Exhibit B."
7. The following candidates have been disqualified by the University of Baluchistan for appearing in the Examinations of the University for the period noted against names for using unfair means in the Examinations.
8. Roll No.Name and Father'OffencePeriod of Name Disqualification 416 B. A.Tariq Hameed s/oPossession of copy.This Examn. Can-- (Supp.) 76Abdul Hameeding material andceledeligible turned into piecesto appear in all his Answer Book.Subjects from
(A) Exam. 1978.
9. 74 F. E. L:Kamal Khan s/oPossession of Copy--do--
(A) 1976.H. Murad Khan.Ing Material quarel-- led and misbehaved with the Supervisory staff.
10. 1043 Inter-Munir Ahmed s/oBy fraudulent wayHis Examn. Result mediateHayatullah Khan.Appeared again inbearing Roll No. (Supp.)the Intermediate1943 (Supp. 75 1975.Examination.Cancelled, how-- ever his result of Examn. Roll No. 578 of 1972 remains valid.
11. (Sd.)
12. Controller of Examinations, University of Baluchistan, Quetta.
13. "Exhibit H."
14. Finally after thorough checking of the record by the unfair means Committee on the point raised by Munir Ahmed in his appeal/ application, the Unfair-means Committee recommended that the previous decisions of cancellation of the Intermediate result 1975 of Munir Ahmed should remain valid. Although this punishment is a very lenient one in comparison with his fraud with the University.
15. The reasons for the cancellation of the result are as under :---
(1) Mr. Munir Ahmed did not mention in his Intermediate form 1975 Annual, that he was improving the Division. Thus he has violated the rules laid down by tile University.
(2) According to the rules for improvement of Division a candidate will be given only one chance to improve his Division, while Munir Ahmed availed two chances, i.e. Annual and Supplementary, 1975.
(3) For Improvement of Division a candidate must appear at least one year before taking the next High Examination, while Munir Ahmed appeared in Degree Examination of the University of Baluchistan, Quetta in Annual 1975 under Roll No. 490 and failed. Intermediate Exami--nation for Improvement of Division up to 1974.
(4) Mr. Munir Ahmed has violated another rule of the University by appearing simultaneously in two public examinations, i.e. Intermediate and Degree in 1975.
16. You are finally informed about the final decision of the University in this case, so that you could finally settle the issue strictly according to the rules.
17. (Sd.)
18. Controller of Examinations, University of Baluchistan, Quetta.
19. Mr. S. H. Jaffri, the learned counsel for the respondent No. 1 conceded that the decision dated 10th June 1977 was taken without show-cause notice to the petitioner. But he maintained that the second decision dated 23rd August, 1972 was taken on an appeal from the petitioner. He submitted that as the decision dated 23rd August 1977 was cancelled, the petitioner ought not to have any grievance against the first order. According to the learned counsel, the second decision superseded the first order. The learned counsel further vehemently argued that the second decision was taken on an appeal from the petitioner himself as such it was not incumbent Upon the respondent No. I to have heard him in person. According to the leaned counsel that the second action of the respondent No. 1 was not in violation of the principles of the natural justice. We had directed Mr. Jaffri to produce before us the number of appeal, which the petitioner had filed, before the respondent No. 1. He submitted that the Exh. C and Exh. F were the relevant documents. The documents are reproduced here for convenience;----- "Exhibit C."
20. The petitioner begs to submit as under;---
(1) That petitioner has now come to know of order dated 10-6-77. Hence before no notice was ever given to him.
21. It is thus to apply that the petitioner may be informed of the reasons leading to the making of the order dated 10-6-77, (it) he may be supplied with the copy of the complaint if any filed against the petitioner, (iii) the Rules according to which action as taken, can be taken.'
22. It is further to request that the petitioner may also be supplied copies of admission forms for F. Sc.
23. Supplementary 1975, (it) Card issued to him allowing him to appear for Physics theory up to Supplementary, 1978.
24. It may be added that petitioner appeared in 1972 and passed his F. Sc. In 3rd Division. He appeared in 1975 Examination and cleared all papers except F. Sc. Physics."
25. "Exhibit F."
26. "In connection of my application, dated 24-6-77. It is again submitted as under :-
(1) That petitioner has now come to know of order dated 10-6-77. Hence before no notice was ever given to him.
27. It is thus to apply that the petitioner may be informed of the reasons leading to the making of the order dated 10-6-77, (ii) he may be supplied with the copy of the complaint if any filed against the petitioner, (iii) the rules according to which action as taken, can be taken.
28. It is further to request that the petitioner may also be supplied copies of admission forms for F. Sc.
29. Supplementary 1975, (ii) Card issued to him allowing him to appear for Physics theory up to Supplementary, 1976.
30. It may be added that petitioner appeared in 1972 and passed his F. Sc. In 3rd Division.
31. He appeared in 1975 Examination and cleared all papers except F. Sc. Physic.
32. An early reply is requested."
33. The documents reveal that the petitioner had asked for the reasons of the decision dated 16th June 1977 and for supplying him the copies of the complaint examination form, University Card, the relevant rules and etc. Manifestly these applications were not the memo. Of appeals. I am convinced that the petitioner did not file any appeal against the decision, before the respondent No. 1. Eventually it cannot be said that the second order was made on an appeal initiated by the petitioner. Indeed, the contention of Mr. Jaffri under such circumstances fails. In the result, I am constrained to hold that the decision dated 23rd August 1977 taken by the University was on its own surmise. The second order too did not show that any notice was served upon the petitioner or he was heard in person. Mr. Jaffri" candidly admitted that neither the petitioner was heard in person nor a show cause notice was given to him. However, he stressed that neither it was incumbent upon the respondent to have given show-cause notice to the petitioner nor to have heard him in person. According to the learned counsel the rules did provide for issuance of such notice or of given personal hearing. Indeed the contention of Mi. Jaffri appeared to be illogical and, devoid of force.
34. On the other hand, Mr. Basharatullah the learned counsel repudiated the contentions of Mr. Jaffri and submitted that "ex post facto" investigations affecting the person, property or right in absence of express words in the Statute excluding the right of show-cause notice or personal hearing, the Courts of law had to follow the principles of natural justice. The learned counsel fortified his stand with case the University of Dacca and another v. Zakir Ahmed (PLD1965SC90), where it was held :- "From a careful review of the decisions, cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person; then in the absence of any express words in the enactment giving such power excluding the application of law are inclined of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of given case."
35. Admittedly, in the instant case, no show-cause notice or personal hearing was given to the petitioner, though on face of it the order indicated to be detrimental to the interest of the petitioner.
36. Besides, the order was passed in "ex post facto" investigation against the petitioner. In my humble opinion, such order could have never been passed without a show-cause notice or hearing of a person on the principle "Audi alteram parten". In the instant case, indeed the respondent No. 1 had failed to follow the principles of natural justice. By this time a wealth of law has been treasured by our Courts that any order of such nature passed by judicial or quasi judicial or executive authority in violation of the principles of natural justice would be illegal, void and ineffective.
37. It was further vehemently argued by Mr. Basharatullah that the University had no authority under any rule to rescind the result. However Mr. Jaffri invited our attention to Exh. R/M, whereby the Academic Counsel vide its decision dated 29th December, 1973 had resolved that no student should be permitted to be enrolled for two University Examinations, in the same year with only exception of the subject of the law. If a candidate concealed the facts and appeared in more than one University Examinations during one year, the result of one or both the examinations might be cancelled. The learned counsel maintained that rule 19 (2) of the University Ordinance had conferred powers upon the Academic Counsel to make regulations for the proper conduct of examinations. Indeed Mr. Basharatullah could not repudiate the contention of Mr. Jaffri. It was then argued by Mr. Jaffri that rule 19 of the Board of Intermediate and Secondary Education, Lahore regulated the procedure for improving division by re-appearing. The rule reads :----- "Notwithstanding anything to the Contrary in these Rules any candidate who has passed the Intermediate Examination in the Third/Second Division may be permitted to improve his division be re-appearing as a private candidate in any subsequent examination; Provided that;------
(a) he appears in the Intermediate Examination Part I and Part II together;
(b) he re-appears at least one year before taking the next higher examination ;
(c) he will be given only one chance to improve his division.
38. Such a candidate, if he improves his division shall be eligible to receive a new certificate on surrendering his previous certificate for cancellation. A candidate who fails to improve his division shall retain his original certificate."
39. According to Mr. Jaffry, the rules were adopted by the Board of Intermediate and Secondary Education, Quetta and the University of Baluchistan, Quetta. The learned counsel relied on section 29 of the University of Baluchistan, Ordinance I of 1970. It reads :- "Notwithstanding anything contained in section 5 of this Ordinance, everything done, action taken, jurisdiction or power conferred, recognition granted, and order issued under any of the provisions of the West Pakistan Boards of Intermediate and Secondary Education, Quetta, Karachi, Hyderabad and West Pakistan Board of Technical Education, Lahore and the University of the Punjab Ordinance and the regulations and rules made thereunder, shall if not inconsistent with the provisions of this Ordinance and the regulations and rules made thereunder, be continued and so far as may be, deemed to have been respectively done, taken, conferred, granted and issued under this Ordinance and the regulations and rules made thereundes."
40. Indeed facts as stated above have evidently established before me that the petitioner had improved his division in clear violation of the standing rules. Under such circumstances, the University was competent to cancel the result of the petitioner. There are express provisions in the rules for taking such action. In the case, Rabat Siddiqui v. Board of Intermediate an Secondary Education, Lahore and another (PLD 1975 Lah. 257). It has been observed that :- "If a person is disqualified from passing a particular examination, the question of declaration of his result in that event, would no arise, and if the candidate can manoeuvre otherwise, such declaration of his result being void ab Initio would be non-existent in the eyes of law, and any proceeding to quash the same would be unnecessary and futile. I am, therefore, of the opinion that even after the declaration of the result of the petitioner it was competent for the Board authoritie to have initiated action against him under rule 8 (iv). "
41. I am in full agreement with the proposition laid down above. The result of the University is not clothed with such sanctity that it could not be E touched by the University after it is declared. It was then vehemently stressed by Mr. Basharatullah that under the principles of "Locus poeni--tentiae" power of rescinding was available to the relevant authority till a decisive step was yet to be taken by the authority. According to him, in cases where once the order takes legal effect, it creates vested right in favour of the person, as such the authority could neither withdraw nor rescind it.
42. Mr. S. H. Jaffri, the learned counsel for respondent No. 1 vehemently repudiated the contention of Mr. Basharatullah. He argued that if the stand of the learned counsel is accepted then rule Exh. R/M would be redundant. I am in full agreement with his argument. His argument appeared to be logical. It would be highly be unreasonable to allow a person to benefit from his fraud and misrepresentation, Naturally such action could be taken only after it had come to the knowledge of the authority. There being express provision under the rules for cancelling the result, the provisions of section 21 of the General Clauses Act nor the rule of "locus poenitentiae" are relevant with the instant case.
43. Mr. Muhammad Yousuf Chaudhary, A. A: G. Appearing on behalf of the respondent No. 2 argued that his client had taken the action against the petitioner on the basis of the decision of the respondent No. 1. According to him so long the decision of the respondent No. 1 remained intact, the petitioner did not had the right to continue his studies in the Medical College. He maintained that his act was subject to the action of respondent No. 1.
44. However, in the preceding paragraphs, I have held that the decision of the University cancelling the result of the petitioner was in violation of the principles of natural justice. Indeed, it will not entitle the petitioner to get perpetuated his fraud. At the most, the case could be remanded to the University for deciding the matter afresh giving notice to the petitioner. Indeed the action of remand would be a rehearsal only. The result obtained would be same. Besides I am reluctant to give relief to the petitioner for the reason that he had fraudulently improved his division in clear violation of the University Rules. Relief under Article 199 of the Constitution of the Islamic Republic of Pakistan is equitable relief. The relief could be given to undo injustice but not to aid injustice. In the Assistant Registrar, Co-operative Societies, Bahawalpur v. Haji Muhammad Ajmal and 4 others (PLD 1975 B J 22), it was held :- "The important question that arises for consideration is whether the equitable jurisdiction of this Court should be exercised in favour of such a petitioner. In Abdul Wahid. Khan v. Custodian of Evacuee Property and others PLD 1966 Quetta 25, it was held that;------ `it is a settled principle of law and equity that a person invoking the equitable jurisdiction of the Court should come with clean hands. Anybody whose own role is not above board should not be allowed to invoke discretionary jurisdiction. We are convinced that the conduct of the petitioner from the very outset has rather been dubious and shady. Therefore, the Court would not grant any relief to the petitioner."
45. In Tando Adam Transport Company Limited v. Member, Board of - Revenue (PLD 1967 Kar. 527) it was held as follows :- "The Courts have repeatedly held that a party seeking relief under the exercise of extraordinary jurisdiction of the High Court relation to constitutional writs or orders must come to Court with clean hands, otherwise the party may disentitle itself to any relief on that grounds alone."
46. In Md. Jurau Mondal v. A. H. Chaudhary, District Judge, Jessore (PLD 1969 Dacca 516) it was held that :- "Jurisdiction under this Article is not one which can be invoked by one who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such a relief. This jurisdiction of High Court should not be exercised if it lands ultimately in a patent injustice."
47. In a Lahore case reported as Messrs Nau-Asia Trading Co. Ltd. v. Sh. Saeed Ahmad, Civil Judge and another (PLD 1966 Lah. 268) it was held as follows :----- "The petitioner-Company by reasons of its vaxatious conduct was disentitled to, what after all was, a discretionary relief under Article 98."
48. In case reported as Ramzan v. Chief Settlement and Rehabilitation Commis--sioner (PLD 1968 Lah.
49. 258) it was observed as follows:- "Since the petitioner seeks to invoke, what after all is equitable jurisdiction of this Court and is guilty of suppression of material facts, I regard it to be a fit case in which he should be refused any relief regardless of the merits of the case."
50. It was held in Mirza Muhammad Shafi v. The Collector, Sheiknupura and others (PLD 1968 Lah. 403) that :--- "The petitioner is not entitled to the grant of a relief in this discretionary jurisdiction, for he seeks the relief on the basis of a wrongful and dishonest act committed by himself."
51. Further getting relief in this case would amount to injustice inasmuch as that the appellant shall be forced to start fresh proceedings against Sh. Saeed etc. With regard to House No. 11/A purchased by them from respondent No. 4. It was held in Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan etc. That no writ will issue if it would issue in aid of injustice."
52. In case of Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan, Claims Commissioner, Lahore and another (2), it was held :---- "The writ jurisdiction is not to be exercised in aid of injustice."
53. The same proposition was the subject-matter in case of Wali Muhammad aced others v. Sakhi Muhammad and others (PLD 1974 SC 106), where it was held :-- "Grant of relief in writ jurisdiction being entirely discretionary with the High Court, the learned Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of Khan Saeed-ud-Din Khan was not strictly found justifiable. It is well-settled 'principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains."
54. In view of the circumstances discussed above, I decline to allow the relief to the petitioner. In result, the petition stands dismissed with costs.
55. M. A. RASHID, J.-I had the advantage of reading, in advance, the lucid judgment proposed to be delivered by my learned brother, Mir Hazar Khan Khoso, J. While I am in respectful agreement with the view of my learned brother that the impugned order is inoperative by reasons of having been passed without notice, I am unable, with greatest respect, to subscribe to the proposition that the principle of locus poenitentiae was not attracted in the instant case, or that the petitioner has come with unclean hands.
56. For the purposes of giving my view I need not re-state the facts which are given so lucidly in the judgment of my learned brother.
57. The power to recall an order, in accordance with the principles enunciated in section 21 of the General Clauses Act, is always recognised. In Shahbaz v. The Crown (PLD 1956 F C46) the Federal Court held that `in fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation ---In the present case the power to cancel a certificate, awarded earlier by the University, is given in rule 19 of the Board of Intermediate and Secondary Education, Lahore, as it stood adopted by virtue of section 29 of the University of Baluchistan' Ordinance, 1979, and produced in extenso in the judgment of my learned brother. So there is no doubt that in accordance with the general principle of locus poenitentiae, as well as the rules governing such grants of certificate, the University had the power to recall or cancel such certificate.
58. But the question for determination in this case is if such powers could exercised at all stages, even though certain consequential rights had accrue to the petitioner by the grant of such certificate, or the University was barred from exercising such powers when a decisive stage had reached. The consensus of case-law, which has developed over the years, is that the principle of locus penitentiae can be invoked only till a decisive stage is no reached. The earliest traceable judicial pronouncement on this view is by Full Bench of the Nagpur High Court in Venkatesh Yeshwant v.
59. Emperor (AIR 1938. Nag.. 513) and has been referred to in Shahbaz's case quoted supra. This principle of law has been affirmed, time and again, in a succession of cases. To quote a few I may mention Pakistan v. Hussain Ali (PLD 1960 SC 310), G. L. Battacharya v. The State (PLD 1964 SC 503) and Collector of Central Excise and Law Customs v. Azizuddin Industries (PLD 1970 SC.439) only.
60. The question then arises what is a decisive stage when the right to recede is not available.
61. Determination of such a stage would depend on the facts of each case. Again consensus exists that once an order has been acted upon, or a certain right has accrued by virtue of an order etc., the Court or the authority issuing such order is precluded from withdrawing it. In Venkatesh Yeshwant's case, referred to above, the petitioner was granted remission, on a mercy petition, but before the date of release could arrive the order of remission was suspended. While observing that the Government did not enjoy unfettered and unqualified powers under section 21 of the General Clauses Act, and that by virtue of communication of such orders a right to release had accrued to the prisoner, it was held that----- "an order of this kind which has been acted upon to the extent of altering the history ticket, to the extent of informing the Legislature of the remission cannot be amended or cancelled or suspended---..--- In the case of Col. Battacharya (PLD 1963 Dacca 422) a Division Bench of the Dacca High Court repelled the contention that the stage to recede does not reach till the release of the prisoner, even though such order had been duly communicated to the Jail authorities and was entered in the prisoner's history. Their Lordships observed that by taking such steps the order had been acted upon. Though in Farid Khan's case (PLD 1965 Pesh. 31) a Full Bench at Peshawar differed with this view and held that the decisive stage in such cases reaches only when the prisoner is actually released, but the Supreme Court approved the view taken by the Dacca High Court when the case of Col. Battacharya was taken before them in appeal PLD 1964 SC 503. The observation of their Lordships, pertinent to the question of a decisive stage are at p. 509 of report and are to the effect :-- "But it is clear that as from the date of the order of the Governor, which was expressed in proper form with due reference to the sentence awarded to the prisoner and to the power under section 401, Cr. P. C., which was being exercised and which bore a valid official signature, the Jail Superintendent upon receipt of that order was obliged, as part of his duty under the Prisoners Act, immediately to give effect to it, so that the un-expired portion of the original sentence was immediately to be reduced by a period of four years."
62. In Mardan Industries v. Government of Pakistan (PLD 1965 Pesh. 47) a Division Bench at Peshawar held that by virtue of a notification, exempting certain industries in the tribal areas from the levy of excise duty, had created a vested right in favour of the petitioners and that it could not be taken away by exercise of powers under section 21 of the General Clauses Act. A somewhat similar case occurred with respect to the Tribal areas of Chittagong Hill Tracts of East Pakistan, and a Division Bench of Dacca High Court in Azizuddln Industries v. Collector of Central Excise and Land Custom (PLD 1967 Dacca 58), while following the Peshawar decision and that of the Supreme Court in Hussain Ali's case cited supra, observed that- "the provisions of section 21 of the General Clauses Act do not alter the position in any way, while the power to add to, amend, vary or rescind a notification is available such power does not include the authority to take away a validly acquired right."
63. Similarly in Muhammad Nawaz v. The Secretary, Irrigation and Power (PLD 1973 Quetta 14) an order, withdrawing the order of dismissal of the petitioner, was communi--cated both to the petitioner as well the Accountant-General. A Division Bench of the then Sind & Baluchistan High Court held that power to withdraw such order, could only be exercised before the order of reinstate--ment had taken legal effect and certain rights had been created in pursuance thereof.
64. In the present case the issuance of a certificate of having passed the Intermediate Examination, by itself, could not be deemed to have conferred a right, because of express provision to the contrary of rule 19 of the University Statutes. But once a candidate, on the strength of such certificate acquires a right to pursue a further course of study then, in my opinion a decisive stage has reached, whereafter the power to rescind the certificate is not available to the University. In the present case the right to persue studies in Bolan Medical College would not have been available to the petitioner if he were not granted the certificate of Intermediate Examination in the pre-medical group. After the grant of such a certificate, and once he was admitted to Bolan Medical College on the strength of such certificate, then in the absence of a clean evidence of fraud, the right to pursue studies in Bolan Medical College bad been acquired by the petitioner. The power to recall the certificate, after such stage, was, therefore, not available to the University.
65. This brings me to the question if the petitioner has come before us with unclean hands. I have left it to be dealt with separately because the principle of locus poenitentiae is independent of it. It is admitted position in law that one who comes in equity must come with clean hands. But the question is if the petitioner has in fact suppressed certain facts from this Court to disentitle him to the relief prayed for.
66. The rule regarding improvement of Division is very clear. A candidate wishing to improve his division has to appear in Parts I and II of the examination together, he will be allowed only one chance, and he will appear in such examination at least one year before taking the next higher examination. The petitioner passed his intermediate in Third Division the year 1972. He tried to improve it the next year but did not appear in they examination due to illness, though he applied for the same. In 1975 Annual he did appear but failed in the subject of Physics. He was permit to appear in the Supplementary Examination during which he not only cleared his Physics paper but also improved his division, and a certificate was granted accordingly. The objection now taken is that he could not clear such subsequent examination in two attempts, and that the University allowed him to do so because of suppression of certain facts. Initially we were led to hold the view that the allegation of the respondent University, as regards suppression of fact, was correct. This was so because, on directions of this Court, the University filed only one leaf of the admission form of the petitioner for Intermediate Examination of 1975, Annexure R/A. This leaf did not declare full facts. A stand was taken before as by the University that Annexure 'R/A' was the whole form and a request by the petitioner to file the whole form was resisted. Taking the statement of the counsel for the respondent, on its face, the counsel for the petitioner did not press his application for filing of the whole form, which was therefore rejected by our order dated 18th October, 1977. Subsequently however the whole form was traced under the directions of the Court, when a blank application form was shown to us. Perusal of the whole form clearly indicates that he did not suppress any facts from the University when he applied for Annual Intermediate Examination in 1975.
67. Subsequently while appearing in the Supplementary Examination he disclosed the facts that he had appeared in the Annual Examination of the same year. Nor had he suppressed these facts in his applications to the University, Annexures C and F. Before this Court as well he has not suppressed all these facts, together with the fact he had appeared in B. A. Examination of the same year. When the petitioner has, before this Court, placed all the facts openly and squarely, he cannot be blamed of having come with unclean hands.
68. In view of the above discussion I find him entitled to the relief prayed for, and direct that the act of the University to withdraw the Intermediate Certificate granted to the petitioner is without lawful authority and of no legal effect.
69. As difference of opinion exists between myself and my learned brother I would direct that the petition may be placed before my Lord the Chief Justice, for placing it before a Third Judge for his opinion.
70. ZAKAULLAH LODHI, J.--The petitioner has challenged the action of Baluchistan University, Quetta, whereby his result of F. Sc., Supple--mentary Examination passed in the year 1975 under Roll No. 1043 was cancelled. He had appeared in this examination to improve his division, as earlier, in 1972 also he had appeared in the same examination but was placed in the Third Division, and therefore, in all probability, he was not sure of getting admission in Bolan Medical College and felt the necessity of improving his division. I need not reiterate the entire facts as they have been very elaborately mentioned in the judgment of my learned brother Mr. Justice Mir Hazar Khan Khoso, dated 20th April, 1978. Suffice it to say that this case was heard by a Division Bench of this Court of which Mr. Justice M. A. Rashid was also a member along with him, but as there was difference of opinion amongst them, as would presently be seen, the case was placed before me for my humble opinion.
2. The main points urged before their Lordships were-
(i) that the orders of the University whereby the result of the petitioner was cancelled was in contravention of the principles of natural justice as he was not heard at any stage ; and
(ii) that the said result having been accepted as correct and acted upon for considerably long time to the advantage of the petitioner who was given admission in the Bolan Medical College upon its strength, it could not be legally cancelled.
3. As far as the first point hereinbefore mentioned is concerned Mr. S. H. Jaffri, the learned counsel for the University had candidly conceded before the Division Bench that the impugned order had been passed by the University behind the back of the petitioner and therefore the case deserved to be remanded back for fresh decision. However their Lordships did not consider it proper to remand the case.
71. The other point was dealt with elaborately by both the learned Judges in the light of the case-law on the point and they were in complete agreement in so far as the principle that once an order passed bona fide by a statutory authority was acted upon, it could not subsequently be allowed to be withdrawn particularly when by dinct of such an order certain benefits had accrued to some persons. In this view of the matter my learned brother Mr. Justice M. A. Rashid was inclined to accept the petition. However, my brother Mr. Justice Mir Hazar Khan Khoso while agreeing with the said principle of law was of the view that since the petitioner had practised fraud upon the University in obtaining a favourable result, therefore, he was not entitled to the discretionary relief under Article 199 of the Constitution.
4. I have heard the learned counsel for the parties at length and also examined the record of the case and relevant case-law. I have also read the judgments of both the learned brother Judges. In my humble opinion the point which can very conveniently resolve the controversy is whether the petitioner practised fraud or he only committed a mere irregularity. Once this question is determined the decision of the case would become very easy. Admittedly the petitioner appeared in two examinations in a year and also improved his division in parts which was against the rules of the University mentioned in the two orders under reference. It would also be relevant to see whether this irregularity was committed due to lack of knowledge of the relevant rules, which unfortunately the University never published for the guidance of the students, as was stated at the bar by Mr. Basharatullah, or the petitioner practised fraud by omitting to mention in the examination forms such facts which he was bound under the rules to mention, or he deliberately misrepresentated the same. If it is the later position then he would not be entitled to the said discretionary relief by this Cowl, otherwise, if he committed a mere irregularity then under the circumstances -herein--before mentioned, it would be perfectly lawful to allow the relief claimed by him.
5. The case was adjourned a couple of times to thrash out the point as to what was the difference between the terms "irregularity" and "fraud" and which particular acts fell within the purview of these two words. To my mind these words art not synonymous. However I am sorry to observe that no pains were taken by anyone of the learned counsel appearing in the case to assist me on this point. Mr. Jaffri only placed reliance on the case of Muhammad Imtiaz Ahmed Sheikh v. Member and Chairman, Academic Council, Chandaka Medical College, Larkana (PLD 1976 Kar. 1154), to the decision of which I was a party but this case has no relevancy to the points here in issue. However in order to examine whether the petitioner practised fraud upon the University by making misrepresentation of facts etc. Or he only failed to abide by the rules laid down in the Calendar of the Board of Intermediate and Secondary Education, Lahore, adopted by University of Baluchistan, I went through both the admission forms filed by him for appearing in the F. Sc. Examination to improve the division a9 well as for graduation examination. In these forms which are available on the file in the column "details of papers in which I appeared previously", he has given a truthful account of his earlier successes and failures which fact has not been disputed by Mr. Jaffri also.
72. Keeping this in view I would be highly reluctant to say that the petitioner practised fraud upon the University. Such an inference could only be drawn if he had omitted to mention correct details or bad committed any other act of the like nature. Here it should not fail to observe that a corresponding duty was cast upon the University also to check the forms and advise the petitioner about the correct legal position as his knowledge could be expected to be deficient but the University authorities miserably failed to fulfil their obligation. A student cannot always be expected to know all the relevant rules so well as an authority in the University whose day to day duty is to see that these rules were put into practice in suppose to know them. Of course, I do not mean to say that the students are totally absolved from the responsibility to follow the rules. This observations should be read strictly in the context of this case. I was told at the bar by Mr. Basharatullah that even a second copy of the rules is not available in the University, much less, a booklet consisting of the relevant rules (popularly known as "University calendar") for the guidance of the. Students which is commonly available in other Universities of Pakistan. Tivis position has not been controverted by Mr. Jaffri. If this is the state of affairs then the University is hardly justified to be so strict against the students in cases of their bona fide omission to observe relevant rules.
73. For the foregoing reasons I am of the opinion that the petitioner committed only an irregularity to which the conditions prevailing in the University amply contributed, as such, his result could not be legally cancelled, as it had been acted upon for a considerably long time and much advantage had accrued to the petitioner therefrom.
74. In the result I agree with the view of my learned brother Mr. Justice M. A. Rashid. The petition is accordingly allowed and the impugned order is set aside: There shall, however, be no order as to costs. 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.