1. MIR HAZAR KHAN KHOSO--J.-Candidate Zahoor Ahmad, having failed to get admission in Engineering College for academic session of 1978-79, has assailed the decision of the Selection Committee, nominating Faridullah for admission in N. E. D. Engineering College, Karachi and has prayed for his admission in the Engineering College.
2. The facts forming the background of the petition are; The petitioner claims to possess ancestral land in many Killis including Killi Almo (Urban) and Simli (Rural) in Tehsil and District of Quetta. According to him, be originally lived in Killi Almo (Urban) but three years ago had shifted from there and permanently resided in Killi Simli (Rural) Quetta. During his stay in Killi Almo, the petitioner completed his primary education there. He passed Matriculation examination in the year 1974 and F. Sc. (Pre-Engineering) in the year 1976 in Second Division.
3. Intending to have an Engineering career in future, the petitioner applied for a seat in Engineering College against reserved quota from Quetta (Rural). Respondent Faridullah of Quetta (Rural) having more marks than the petitioner too applied for one of the reserved seats in Engineering College. For selecting candidates, the Government of Baluchistan had notified its policy on 6th February, 1978. With such purpose, the Government too constituted a Selection Committee. After having full scrutiny of the cases of the candidates, the Selection Committee amongst two other candidates selected the respondent Faridullah for having admission in the N. E. D. Engineering College, Karachi against rural Quetta seats. The petitioner's request for admission however was declined. Aggrieved against this decision, the petitioner has brought this constitutional petition before this Court.
4. Mr. Basharatullah, the learned counsel for the petitioner has vehemently contended before us at the out-set that the respondent candidate was resident of tribal areas of the North Western Frontier Province, thus he was not entitled for allotment of reserved seat from the province of Baluchistan. In proof of his contention, the learned counsel has placed reliance on the entry made by the respondent in his application form, Annexure "P". According to the learned counsel, the respondent by that entry has himself admitted to be a resident of the tribal areas. Besides the learned counsel submitted the respondent is son of well known ex-Senator Haji Ajaib Khan, who admittedly hails from the tribal areas of the N.-W. F. P. Mr. Hanafi vehementally repelled the contention of the petitioner's counsel. He submitted that nowhere on record of this case or even before this Court, it has been proved by the petitioner that the respondent is a local resident of the tribal areas of N.-W. F. P. Or is son of ex-Senator Haji Ajaib Khan. Indeed there is weight in contention of Mr. Hanafi. A mere entry in the admission form wherein the respondent has shown his residence from tribal area, is not by itself sufficient to prove that the respondent is resident of tribal areas of the N.-W. F. P. Besides the entry is ambiguous one. It only shows the residence of the respondent from tribal areas. Nothing more than that. In our country, there are centrally administered tribal areas in A N.-W. F. P. And provincially administered areas in province of Baluchistan. The tribal areas being both in N.-W. F. P. And province of Baluchistan, it could hardly be said with certainly as to which of the tribal areas, the respondent comes from. On this account, the reliance of Mr. Basharatullah on this entry could be said to be fallacious one. Besides, Mr. Basharatullah has miserably failed to prove that the respondent is son of Haji Ajaib Khan, the ex-Senator from the North-West Frontier Province. Even otherwise, such objections of Mr. Basharatullah did not carry any weight. The respondent may be son of Haji Ajaib Khan, the ex-Senator. He may have Permanent residence in the tribal areas of N: W. F. P. His being son of an Ex-Senator from N.-W. F. P., or having permanent residence there, would not debar the respondent from having domicile in other provinces including the province of Baluchistan. Domicile likewise permanent residence under certain conditions too creates vested rights. The present admission policy is concrete proof thereof.
5. For this reason, the Government of Baluchistan beside reserving seats for local residents has made a provision in the rules whereby a domicile having continuous stay of last 12 years in the province of Baluchistan having passed Middle, Matric, F. Sc. And B. Sc. Examinations from some institution in the province had the right of admission again of reserved seats in various institutions.
6. In the alternative, it was contended by Mr. Basharatullah that if respondent is domicile of Baluchistan, then he be deemed to be a resident of Quetta (Urban) but not of Quetta (Rural). Being resident of Quetta Urban, the respondent was not entitled for having seat allotted to him from Quetta rural. Had the seat not been erroneously alloted to him, certainly the petitioner would have been given the same, as he is bona fide local resident of Quetta rural. Mr. Basharatullah re-invited our attention to the admission form of the respondent. The learned counsel submitted that the respondent in the same form had shown that he was born in Quetta, besides he has given his home address as House No. 6-9/360/1352-A situated on Deo Mal Road, Quetta. This objection of Mr. Basharatullah appeared to be a teneous one. These two entries too are ambiguous, likewise the earlier one. Beside, Mr. Hanafi Produced before us two documents in rebuttal showing that the house belonged to one Sher Afzal Khan, but not to the respondent. Furthermore, the entry indicating birth in Quetta does not show whether the respondent was born in Urban Quetta or in its rural area. In absence of full description in the form in this regard, the ambiguous entry would hardly lead us to the conclusion that the respondent was born in Quetta urban. The entry as it is could be twisted in either way. In favour of or against the respondent. Moreover the fact of having been born in city of Quetta would not deprive the respondent from having residence in Quetta rural. The respondent might have been given birth in a Maternity Home in a Hospital ; in some private house, either owned or borrowed by his parents in city of Quetta. Possibly, his mother might have been brought from the Quetta rural to Quetta urban for easy delivery or medical aid. Besides, the entry showing address of the house of the respondent in Quetta city also did not help the petitioner. It may be that respondent might have given the address of the house for easy delivery of letters to him as evidently there are no proper arrangements available for delivery of letters to the people residing in the rural areas. Besides it could be said that the house might have been taken by the respondent for facilitating him for going to school or College. Even otherwise, it is not unusual in our country that well-to-do families from rural areas maintain houses in towns and cities of their choice, for education of children.
7. It was additionally contended by Mr. Basharatullah that the respondent was not a resident of Quetta rural at all. The learned counsel argued that had the petitioner been resident of rural area, he would have not relied upon the domicile certificate of Haji Gul Muhammad, who had shown him to be his adopted son. The learned counsel maintained that adoption of son was quite foreign to Muhammadan Law. Continuing his arguments, Mr. Basharatullah said that the Tehsildar of the rural area on 19th February, 1978 had certified that neither Gul Muhammad nor Faridullah were the residents of Killi Khushkaba Karezat in Quetta rural. The learned counsel submitted that this document by itself was sufficient for refusing admission to the respondent. The subsequent production of documents by the respondent showing his landed property and his residence in the Quotta rural was quiet unreliable and untrustworthy. According to the learned counsel these documents should have not been considered by the Selection Committee at all. Mr. Hanafi successfully met this objection of Mr. Basharatullah. He replied that the Selection Committee did not really rely on the domicile certificate of Haji Gul Muhammad. The Committee had asked the respondent to produce his own domicile certificate. According to the learned counsel, on direction of the Selection Committee, the respondent had obtained his domicile certificate. The objection that the domicile certificate was obtained or produced afterwards before the Selection Committee too failed. Mr. Hanafi further submitted that the domicile certificate after full inquiry from the Patwari, Tehsildar, Assistant Commissioner and the District Magistrate was issued in favour of the respondent. The learned counsel urged the first certificate of Tehsildar relied upon by the petitioner was unreliable and untrustworthy as it was based, on report of Levies personnel. The latter certificate was issued on proper and reliable inquiry made by the Revenue field officer and countersigned by Higher Revenue Officers. Besides the latter certificate superseded the former one, as such there was no cavil in decision of the Section Committee, for having relied upon the certificate and selected the respondent for admission in the Engineering College.
8. However, we really under the circumstances would certainly refrain from probing into the complicated questions of facts for the reasons firstly the issuance of the certificate was within the competency of the District Magistrate, secondly it was too within the domain of the Selection Committee for having taken into consideration the domicile of the respondent. Indeed, this Court is not a Court of appeal to probe into disputed question of the facts and import its own view or opinion holding the District Magistrate, Quetta had erroneously issued the certificate on wrong facts or that the Selection Committee bad erred in giving weight to the certificate. Our views are fortified by cases Sher Bahadur Khan v. Capital Development Authority, Islamabad and 2 others (PLD 1968 Lah. 938and Syed Saghir Ali v. Mehar Din and others (1968 SCMR 729However no hard and fast rule could be laid to that effect. In many cases, our Courts to certain extent have probed into the disputed questions of facts too.
9. Mr. Basharatullah then submitted that in an identical case, a member of this Bench in case, Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta and 4 others (PLD 1978 Quetta 17had probed into such disputed facts and allowed the petition. This authority too is of no avail to the learned counsel for the petitioner. The facts of this case are quite different from the case in hand. One of the predominant features in that case was that one sister had been granted admission, and the second was refused on the same date.
10. Mr. I. H. B. Hanafi vehemently in the end submitted that the petitioner himself was a resident of Quetta urban, as such was not entitled for having seat from Quetta rural. On this account, he had no locus standi to file the constitutional petition. The learned counsel further stressed that the petitioner bad not come with clean hands before this Court as such was not entitled for the discretionary relief under the Article 199 of the Islamic Republic of Pakistan. The learned counsel relied on Annexures 'R/H', 'R/J', 'R/K' and 'P.' In Annexure "P", the petitioner has himself shown his place of birth Quetta and place of residence Killi Alam Khan. The learned counsel submitted that his birth place being in Quetta and place of residence in Killi Atam Khan, the petitioner became admittedly resident of Quetta urban. The learned counsel relied on Annexures'R/H','R/J' and 'R/K'.
11. The learned counsel too has invited our attention to Annexure "C" wherein the petitioner has shown to be resident of Kill I Simli of Tehsil Quetta. Wherein Annexure 'R/H' at the relevant place, the petitioner has been shown to be resident of Killi Alam Khan. But latter on at the bottom of the certificate by correction, the petitioner's residence has been changed from Killi Alam Khan to Killi Simli. Admittedly, both certificates bear the same No. 5284/6/59 and the same date of 7th September, 1974. The certificates too bear different styles of the photos of the petitioner. We have not been able to understand as to what is fishy with these two certificates. We invited attention of Mr. Basharatullah to this aspect of the case. He in reply submitted that the petitioner originally resided in Killi Alam Khan but later on he took residence in Killi Simli. The change therefore was natural. We are not satisfied with the explanation advanced by Mr. Basharatullah. However we would refrain from giving our finding on this aspect of the case. Obviously, it would come in his way.
12. However under the present circumstances, at least we could say that the petitioner has not come with clean hands before this Court. He is, therefore not entitled for the relief. We place reliance on cases reported in Sahibzadal Abdul Hannan v. Assistant Director, Immigration and Passports, Government of Pakistan, Karachi and another (PLD 1972 Kar. 138) and Wali Muhammad v. The Secretary, Home Department, Government of Baluchistan, Quetta and 2 others (PLD 1972 Quetta 33 For the foregoing reasons, we have reached the conclusion that the petitioner has failed to make out a case to call for the interference of this Court. In result, we dismiss the petition with costs.
13. This judgment constitutes the reasoning of our short order of 30 May, 1978.