1. ' GHULAM MUSTAFA MUGHAL, C.J.---The above captioned petitions have been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. As both the petitions raise common questions of facts and law, hence, were heard together and are decided as such.
2. ' Facts forming the background of Writ Petition No, 777 of 2010, are:- Iftikhar Ahmed Khan, petitioner, was elected as Member of the Provincial Assembly, from PP-81 (Jhang-IX) in the election held in the year 2008. He passed his Secondary School Examinations from the Board of Intermediate and Secondary Education, Sargodha in 1982 and also did his F.A from the same Board in 1986. He appeared in the University of Azad Jammu and Kashmir for Bachelor Degree Examination in 2004 under Roll No, 7772 and qualified the said examination. The result card as well as the Degree of B.A.
3. Issued to him respectively which as per his claim, has been authenticated by the Higher Education Commission. Sajid Iqbal, his political rival challenged his degree by instituting a writ a quo warranto in Lahore High Court on the ground that the degree obtained by him from the University of Azad Jammu and Kashmir is fake and bogus for having been obtained by practising fraud and impersonation. The University submitted its parawise comments, however, petition is still awaiting disposal. The petitioner, herein, requested the Chancellor of the University of Azad Jammu and Kashmir that he has been duly issued result card as well as degree by the University. The genuineness of the same is now being investigated by the University at the behest of his political rival. The Chancellor vide his order dated 16-12-2008 pleased to observe that the University authorities are not competent to hold any inquiry with respect to the degree/result card, issued in favour of the petitioner. As the Higher Education Commission has also already authenticated the degree, hence, nothing remained to be investigated. Petitioner's election to the seat of the Provincial Assembly was challenged through an election petition and the same was dismissed on 15-6-2010. However, petition No, 259 of 2009, filed on behalf of Iqbal Ahmed Khan Baslona, is yet pending before the tribunal and the controller of the University of Azad Jammu and Kashmir did appear there as witness on 4-6-2010 and in his statement he admitted the issuance of the degree and result card. It is claimed that despite admission before the Lahore High Court as well as Election Tribunal the University of Azad Jammu and Kashmir has served the petitioner with show- cause notice on 15-7-2010 whereby he is required to answer the so-called allegation for using the unfair means into the Examinations held in 2004. Through an application the petitioner, herein, sought amendment to raise some additional grounds in his petition. As the grounds sought to be incorporated were of legal nature, hence, application was treated as a part of the petition. The petitioner has challenged of the initiation of the proceedings, investigation and the show cause on the ground of mala fide. It is prayed by him that the Syndicate is not competent to constitute any committee without amending regulation No,22 (Chapte-13) of General Regulations Regarding Examinations etc. ' The petition has been contested by the University as well as Private respondents by filing separate written statements. In the written statement filed on behalf of the private respondent, it is claimed that neither petitioner has any locus standi to file this petition nor he is aggrieved. It is further claimed that the petitioner is also estopped by his conduct to invoke the jurisdiction of the Court.
4. Some instance of fraud and forgery committed by the petitioner along with the supporting documents have also been stated with the submission that the University has every authority and jurisdiction to probe into the fraud committed by the petitioner.
5. ' In the written statement filed on behalf of the University", it is pleaded that the petitioner has not approached this Court with clean hands rather has invoked extraordinary jurisdiction of this Court for protection of ill-gotton gains. It is further submitted that the authentication by the Higher Education Commission of the document does not mean that the University is deprived of from exercising its powers to look into the alleged commission of fraud or use of unfair means including impersonation in the examination. The other facts pleaded in the petition have been denied. The petitioner has filed replication wherein it is claimed that denial by respondents Nos. 1 to 5 is of evasive nature, hence, the same may he treated as admission under rule 5. Order VIII of C.P.C.
6. ' Muhammad Saffdar Ali and another, petitioners in petition No, 782 of 2010, have claimed that petitioner No,2 and respondent No,6 (petitioner in Writ Petition No, 777 of 2010) submitted their nomination papers for Member of Provincial Assembly from PP-81 Jhang-IX Punjab, in the elections of 2008. Respondent No,6 was declared as returned candidate from the said seat of the Provincial Assembly. It is alleged that as for contesting the election graduation was must, therefore, respondent No,6 for that purpose procured a degree of B.A. From the University of Azad Jammu and Kashmir. Now, it is transpired that degree is fake and bogus because respondent No,6 did not appear in the Examination of B.A. Held by the University rather he manoeuvred the appearance of somebody else in his place by affixing the photograph of that person with connivance of the concerned University staff and succeeded in obtaining B.A. Degree by committing fraud and forgery. It is also alleged that the Board of Intermediate and Secondary Education, Sargodha, has already verified that Intermediate Certificate of respondent No,6 allegedly issued from the said Board is bogus. The nutshell of the petition is that University has constituted a committee for judging genuineness of the various degrees obtained by different persons from the Pakistan including respondent No,6 and in order to frustrate the proceedings. Counter petition has been filed by respondent No,6. It is prayed that order of respondent No,2 dated 16-12-2008 may be declared to have been passed without lawful authority and the University may be directed to cancel the degree and to proceed against all the concerned under section 3(2) of the Universities and Boards of Intermediate and Secondary Education Malpractices (Eradication) Act, 1999.
7. ' This petition is resisted by Iftikhar Ahmed, private respondent. (petitioner in Writ Petition No, 777 of 2010), on the grounds taken in his petition. It is further pleaded by him that petitioner No,1 is not aggrieved whereas petitioner No,2 is his political rival and on his behest the University is not competent under the Act, Statutes or Regulations to hold an inquiry. It is further claimed that petitioner's election petition has been rejected by the tribunal and reinvestigation by the University thereafter is without any statutory backing.
8. ' Raja Muhammad Hanif Khan, the learned Advocate for Iftikhar Ahmed Khan, vehemently argued that show-cause notice dated 15-7-2010 is mala fide and without lawful authority because respondents are not empowered to investigate into the correctness and legality of the degree/result card issued to the petitioner after a period of three years. In this regard the learned Advocate referred to and relied upon Regulation 22 of the General Regulations Regarding Examinations etc, The learned Advocate contended that the University has earlier acknowledged the genuineness of the result card and degree issued to the petitioner before the Election Tribunal and by furnishing the details to the Higher Education Commission for authentication of the degree.
9. He argued that now respondent cannot take an inconsistent position on the principle of estoppel.
10. He further submitted that even the Syndicate has no jurisdictional competence to constitute any committee in order to investigate into the alleged unfair means without amending Regulation No,22 of Regulations Regarding Examinations etc, which empowers the Syndicate to quash the result or withdraw the degree/diploma or certificate of a candidate on the ground of using unfair means in the Examinations. He contended that the proceedings initiated against the petitioner and notice issued are mala fide and without lawful authority. He maintained that the University of Azad Jammu and Kashmir may be prohibited from proceeding further and the show-cause notice under challenge may be declared to have been issued without lawful authority. He argued that correctness and legality of the degree can only be looked into by Election Tribunal and the University, at the most, can submit its viewpoint in the proceeding pending before the said Tribunal.
11. The learned Advocate placed reliance on-the following cases:--
(i) Reference No,1 of 1977 by President, Azad Jammu and Kashmir PLD 1978 SC(AJK) 37.
(ii) Asif Majeed Khan v. Tahir Ayyub Abbasi and 3 others 1994 PLC (C-S)1514.
(iii) Dr. Zafar Ahmed Khan v. Azad Govt. And 4 others 2002 SCR 247.
(iv) Abdul Sattar Lalika v. Ch. Sajjad Ahmed and another 2003 MLD 459.
(v) Ch. Muhammad Saboor Kisana v. Muhammad Ajmal Cheema and 7 others 2007 CLC 1635.
12. ' Conversely, Syed Mushtaq Hussain Gillani, the learned counsel for private respondents, contended that Iftikhar Ahmed Khan applied on Admission Form No,126488 and at the back of the said form he entered his old Identity Card number. According to him fact of the matter is that the said card was cancelled and new I.D. Has been issued to him by NADRA. The new Identity Card deliberately has not been furnished by him because in that case he could not achieve his target. He argued that contradiction in the signatures on the form/affidavit and the documents filed with the petition under his signature is apparent and speaks of the fraud committed by him. He further argued that neither any law protects the fraud or a fraudulent act nor the bar of limitation can be pleaded for the protection of benefit obtained by practising fraud. He argued that the University on coming to know that some of the candidates have obtained bogus degrees by practising fraud and impersonation is not debarred from investigation. He submitted that Regulation No, 22 of the Regulations Regarding Examinations etc. Relied upon by the petitioner does not preclude the University from taking action. He maintained that Chancellor has no authority to prevent the Syndicate from investigation and the order passed by him is arbitrary and without lawful authority.
13. He argued that petition has been filed for the protection of ill gotten gains, hence, is liable to be dismissed. The learned counsel placed reliance on the following cases:--
(1) Bashir Ahmed Khan v. Custodian and others 1992 SCR 149.
(2) Rehana Mahmood and 3 others v. Azad Govt. And 5 others 1998 SCR 82.
14. ' Mr. Farooq Hussain Kashmiri, the learned Advocate representing the University besides reiterating the legal position taken by him in written statement has adopted the arguments of Syed Mushtaq Hussain Gillani, Advocate.
15. ' I have taken into consideration the respective arguments of the learned Advocates of the parties and gone through the relevant record.
16. ' In order to appreciate the controversy, Regulation No,22 (Chapter 13) General Regulations Regarding Examinations etc. Is reproduced as under:-- "22. Regulation Empowering the Syndicate to quash the result or withdraw the degree, diploma or certificate of candidates.
17. ' Notwithstanding anything to the contrary contained in Regulations, the Syndicate shall have the power to quash the result or withdraw the degree, Diploma or Certificate of a candidate after it has been declared or awarded, as the case may be:--
(i) If he has been disqualified for using unfair means in the examination; or
(ii) If a mistake is found in the compilation or declaration of his result; or
(iii) If it is found that he was not eligible to appear in the examination Provided that the order of quashing the result under paras (2) and (3) is issued not later than 3 years from the date of the declaration of the result of the examination concerned.
18. ' Provided further that in quashing the result of a candidate under paras (2) and (3) above, the University declares as `failed' 'a candidate, who was previously declared to have passed in an examination, the Syndicate may, after considering the circumstances of the case, take such action as it may deem necessary to give the candidate the benefit of any privilege that he may have acquired by studying in the next higher class in a recognized institution or taking an examination conducted by the University: ' Provided further that the Vice-Chancellor has been authorized to initiate inquiry against the students involved in unfair means cases, and after inquiry he would submit the report to the Syndicate for final orders."
19. (underlining is mine)
20. The contention of Raja Muhammad Hanif Khan, the learned Advocate for the petitioner that proviso of Regulation No,22 reproduced hereinabove denuded the University from exercising the powers to quash the result or withdraw the degree, diploma or certificate of a candidate after a period of three years, is devoid of any force. Firstly, paras II and III of Regulation No,22 are not attracted in the present case because the case in hand is neither a case of mistake pertaining to compilation or declaration of the result nor the question of eligibility regarding the appearance in the examination is involved herein. The committee constituted, proceedings initiated by the Syndicate are not covered by the above paras. Though there are some precedents in support of the proposition but facts of these cases are entirely different.
21. ' In Muhammad Malik's case 1988 CLC 783, the apex Court of Azad Jammu and Kashmir pleased to observe that the Syndicate has the power to quash the result or withdraw the degree of the candidate, however, this power is subject, to the proviso which provides that the order of quashing the result under paras II and III is not available after a period of three years. In this perspective the notice issued in that case was declared to have been issued without jurisdictional competence and lawful authority by treating the same as "act done" or "proceeding taken" within the meaning of subclause (II) of Clause(A) of section 44 of the Interim Constitution Act, 1974.
22. ' In the precedent case, the question of eligibility of the candidates was sub judice and the University issued notice to the petitioners, therein, after a period of six years. In the circumstances of that case their lordship ruled that the University cannot exercise its powers under the aforesaid paras of the Regulations after the prescribed period of limitation. It may be stated that determination of eligibility is the sole function of the University authorities to be looked into at the time of receiving the admission forms. If the admission form is accepted treating the same complete in all respects then a vested right is created in favour of a candidate and in that eventuality he cannot be penalized for the fault of the authority. Similarly para No,II deals with the compilation of the result which is also exclusive function of the University. Any mistake committed by the officials of the University again cannot deprive of the candidates after the aforesaid period.
23. ' In Shahid Saleem's case 1987 MLD 3053, same view was taken. In that case it was held that even on the ground of fraud, forgery and impersonation, result could not be cancelled after three years but no corresponding provision is available in the University Regulations. Thus, the view was taken in light of the specific provisions contained in the Calendar.
24. In view of above, it is concluded that bar contained in the proviso of Regulation No,22, reproduced hereinabove, is not attracted when the Syndicate decides to quash the result or withdraw the degree, diploma or certificate of a candidate on the ground of impersonation or a candidate is found guilty under the Regulations for conduct of the examination mentioned in the later part of this order. I am of the opinion that proviso is qualified and bar contained in it can be applied only to the cases enumerated in paras II and III of Regulation No,22.
25. ' Besides, the above, under the Regulations for Conduct of Examinations (Chapter-II) at page 526, of the Calendar the University has following powers:-- "14. Notwithstanding any other law for the time being in force and without prejudice to any remedy open to the University under such laws:--
(a) any candidate found guilty of deliberate previous arrangements to cheat in the examination such as smuggling in another answer book, impersonation or misconduct of a serious nature and the person who impersonates such candidate, if he is on the rolls of a Faculty/Department/Institute of the University/an Affiliated College shall be disqualified for a period not less than 3 years and not more than 5 years, or declared as not a fit and proper person to be admitted to any future examination of the university, accordingly to the seriousness of the offence and the other circumstances of the case.
(b) If the impersonator is not on the rolls of a Faculty/Department/Institute of the University/an Affiliated College, the Collector of Examination shall report the matter to the police and shall send intimation of the same to the Vice-Chancellor.
(c) Provided that if a candidate/person is found guilty of cheating, smuggling of an answer book, impersonation or misconduct of a serious nature, or any other type of unlawful act prior to or after the examination i,e, from the date of submission of admission form to the award of the diploma or degree, he may be penalized as per provisions in (a) and (b) above: ' Provided that in a case by clause (a) above, a candidate or the impersonator, on the expiry of five years including the examination in connection with which he was declared to be not a fit and proper person to be admitted to any future examination may, as a special case, be exempted by the Syndicate from further operation of this Regulation on the recommendation of the Vice- Chancellor."
26. The above-reproduced powers could be exercised by the University in all the cases covered by the above Regulation. Section 4 of the University Act, 1985, also empowers the University to take the step for achieving the purpose and object of the creation of University. Section 19 of the University Act, 1985 is comprehensive enough and covers any situation not provided expressly in the Act, Statutes and Regulations. Section 19(2)(w) empowers the Syndicate to regulate, determine and administer all other matters concerning the University and to this end exercise all necessary powers not specifically mentioned in this Act or the Statutes.
27. ' The above referred provision covers all acts which the Syndicate deems necessary for fulfilling the object and purpose of creation of the University. The contention of Raja Muhammad Hanif Khan, that Syndicate cannot constitute any committee or exercise powers conferred on it under Regulation No,2 without amending the same Regulation is also devoid of any force. Under section 19 of the Act, the Syndicate is designated as the highest executive body of the University. Similarly under section 23, the syndicate is empowered to appoint any committee for any purpose, therefore, it cannot be held that the committee has been constituted/appointed by the University without any jurisdictional competence. This view lends support from Sikandar Sadiq's case PLD 1988 Pesh.
28. 99.
29. ' In Mushtaq Ahmed's case 2001 CLC 1631, petition was dismissed against an intended cancellation of the result by observing that the University in case of fraud, impersonation can cancel the result after the period of three years. The learned Judge further observed that it is settled principle of law that lapse of time does not sanctify the action based on fraud and misrepresentation. It was further ruled that where fraud is apparent on the face of the record then hearing before the 'proposed action can be dispensed with. A reference can be made to Rehana Mehmood's case 1997 MLD 2874. Miss Shazia Umar Chaudhry's case 2000 CLC 1684 can also be referred to in support of the proposition.
30. In view of above settled legal position the assumption of jurisdiction by the University cannot be held illegal and without lawful authority. Resultantly issuance of notice can also not be declared without lawful authority. As the competent authority has yet to pass the final order and this Court cannot usurp the adjudicatory powers of the Committee/Syndicate of the University. The prayer made for quashment of result, by Syed Mushtaq Hussain Gillani, Advocate, for the respondents/petitioners. By this Court, cannot be acceded to. As writ against notice issued with lawful authority is not competent 2000 SCR 308, therefore, Writ Petition No,777 of 2010 merits dismissal. I 'accordingly order.
31. ' Before parting with the case I would like to quote an obsel vation from the judgment of Mr. Justice Aftab Farrukh, Judge, recorded in Zafarullah's case PLD 1981 Lah. 244 in identical circumstances. At page 261 of the report, it was observed as under:-- "The charges levelled against the petitioner and found by the Board to have been duly proved against him make a very sad reading and are of an extremely serious and grave nature, machinations of the type indulged in by the petitioner not only result in undue advantage to unscrupulous and undeserving candidates to the exclusion of bona fide scholars but also bring an infamy and bad name to our Boards and Universities 'both within and outside the country, in fact in the ultimate analysis the image of the entire nation is tarnished. In the circumstances, I cannot conceive of a better case where the petitioner would deserve to be burdened with exemplary costs.
32. I, therefore, order the petitioner to pay as costs to each of the respondents Rs, 2,000." (Underlining is mine)
33. ' The Inquiry Committee as well as Syndicate is directed to conclude inquiry and decide the controversy which has brought a bad name for an august Institution of the State. As the grounds raised in Muhammad Saffdar Ali Khan's petition are purely of factual nature, hence, will be decided by the concerned authority, therefore, the same stands disposed of in view of the result of Writ Petition No, 777 of 2010. However, order of the Chancellor dated 16-12-2008 may not be taken into consideration while completing the inquiry, deciding the final fate of the proceedings, because the