KASHIF ANWAR others vs AGA KHAN UNIVERSITY

' MAQBOOL BAQAR, J.---The instant suit has been filed by the plaintiff for a declaration that the plaintiff was a medical student of the Aga Khan University MBBS Programme and was entitled to continue his studies without let or hindrance from the defendant, and for orders directing the defendant to re-enter the plaintiff's name on the roll of students and allow him to proceed with this medical education and also for an order restraining the defendant from interfering with or creating any obstacle to the plaintiff's lawful continuation of his medical studies at the Agha Khan University ("AKU"). The plaintiff has also claimed damages in the sum of Rs,30 Million.

2. At the time of filing of the suit, i.e, 30-4-2007, the plaintiff was a fourth (4th) year student in the defendant's medical school. He was originally admitted in the year 2002 as part of MBBS Programme Class of 2007. The plaintiff claimed to have enjoyed a satisfactory academic and disciplinary record throughout his career at the defendant University (AKU) and was poised towards a successful career as a doctor. It is stated that in the evening of 15-9-2004, the plaintiff along with some other fourth year students, met to celebrate the end of their examination, and after driving around for a while, they went to the university campus, and that while they were sitting in a hostel room of one of the students, they were joined by few other students. However, unfortunately one of them namely Asad Aftab had a fatal reaction to some drugs and he died the next day, i.e, 16-9-2004. While chemical examination by the AKU Hospital, verified by the Sheffield Teaching Hospital, UK, confirmed the presence of a large quantity of opiates in his body consistent with usage of illicit heroin. However, the family of the deceased student alleged foul play, whereupon an F.I.R. Was registered at Police Station New Town, Gulshan-e-Iqbal. The plaintiff is also one of the accused and has been granted pre-arrest bail by the learned II Additional Sessions Judge, Karachi (East). On 9-12-2004, the plaintiff along with eight (8) other students, received a notice from AKU in connection with his alleged involvement in the possession and usage of drug at AKU Campus. Through notice dated 28-1-2005, the plaintiff was requested to appear before the Disciplinary Committee on 3-2-2005. The plaintiff appeared before the Disciplinary Committee.

Subsequently, after a lapse of nearly five months of the initial notice, the plaintiff, vide letter dated 4-5-2005 was informed by the Dean, Medical College that his enrolment in the MBBS Programme stood terminated and he was being expelled with immediate effect. The reason advanced for the expulsion was that the statements of some students and that of the plaintiff himself proved the plaintiff's involvement in procuring and bringing the counter band drug to AKU Campus, thus guilty of aiding, abetting and possession of the prohibited drugs. It is alleged that the Disciplinary Committee did not adopt any established procedure for holding a free and fair enquiry. It is further alleged that the parents of the deceased student, Asad Aftab, were extremely influential persons, who were able to mobilise the media and the State machinery in their favour and that the plaintiff's expulsion was a result of media pressure and that the plaintiff was made a convenient scapegoat to avoid any media criticism of AKU's role in the whole affair. It is further alleged that the decision to expel the plaintiff was without any independent and neutral application of mind on the merits of the plaintiff's case. Along with the plaint is annexed an email sent by the President, AKU to Editor, South Asia Tribune and the journalist Mr. Shaheen Sehbai on 5-5-2005, and Shaheen Sehbai's email dated 2-5-2005. It is claimed that the above communication is clearly indicative of the mala fide motives of AKU for expelling the plaintiff. It is pointed out that the decision to expel the plaintiff was taken two days after Mr. Shaheen Sehbai had made enquiries from the AKU President and that only a couple of days before the stories relating to drug usage on AKU Campus were carried by various segments of the media. It is pointed out that in their anxiousness to escape any media criticism by immediately expelling the plaintiff, AKU completely ignored the fact that the plaintiff was a mere bystander to the whole affair and was not using or possessing any drugs. It is alleged that the plaintiff was deprived of an opportunity to examine any of the alleged evidence against him and was expelled on false pretexts. He was also not provided any opportunity of confronting or cross-examining the witnesses against him. The investigation report and recommendations prepared by the Disciplinary Committee were never provided to him. It is claimed that AKU took no action against the plaintiff even after the hearing before the Disciplinary. Committee and he was allowed to continue with his study until the media started making enquiries, and that on 18-4-2005 AKU sent to the plaintiff a fee invoice and accepted payment of the same on 4-5-2005 (the very date of the plaintiff's expulsion). It is alleged that the AKU's act in expelling the plaintiff was discriminatory and not in accordance with law. It is pointed out that some other students reported to be involved in the incident were not expelled. Although the Disciplinary Committee had recommended the expulsion of one Furqan Bin Irfan for his usage and possession of drugs but he was not expelled. It is further alleged that upon intimation of the above decision, the plaintiff's father sent a letter dated 9-5-2005 to AKU asking to be provided with a copy of the disciplinary proceedings against all students allegedly involved, to enable him to prepare an appeal to the AKU Provost, however, AKU refused to provide a copy of the proceedings. The plaintiff, however, filed an appeal on 9-5-2005 before the AKU Provost, wherein he specifically took the plea that he had been deprived of an opportunity to confront and explain any evidence against him and asked for a copy of any such evidence to be provided. On 1-6-2005, the plaintiff's appeal was rejected by AKU Provost through a nonspeaking order and without assigning any reason whatsoever. The review petition preferred by the plaintiff before the president, AKU was also dismissed through a non- speaking order and without assigning any reason. Consequently, the plaintiff filed Suit No,1293 of 2005 before this Court seeking, inter alia, that the plaintiff be allowed to continue with his medical education at AKU. On 2-6-2006 after full hearing of the plaintiff's application for interim injunction, a learned Single Judge of this Court was pleased to allow the plaintiff to continue with his medical education and attend classes at his own risk and cost during the pendency of the suit on the ground, inter alia, that the disciplinary enquiry was, prima facie, in violation of natural justice inasmuch as the plaintiff was not allowed access to all the material being used against him and was not given a proper opportunity to defend himself. It is pointed out that by the time the plaintiff was re-admitted into AKU as a result of the aforesaid injunctive order, he had already lost a full year of education. An appeal being High Court Appeal No, 243 of 2010 filed by AKU against the aforesaid order was disposed of by a Division Bench of this Court through a consent order dated 6- 7-2006. The salient terms of the consent order were that the expulsion order dated 4-5-2005 together with all subsequent orders in appeal and review by the AKU authorities stood recalled and the Dean, Faculty of Health Sciences, AKU ("the Dean") would be at liberty to pass fresh orders after providing to the plaintiff copies of the entire material relied upon by the Dean and after hearing the plaintiff. It is claimed that from the very outset, despite the recalling of the expulsion order, it was clear that the AKU never intended to let the plaintiff continue with his studies and considered his presence in the university as a merely temporary measure. And that such was clearly demonstrated by the AKU's refusal to re-validate the plaintiff's Student Identity Card and Library Card and that the letter dated 12-7-2006 sent by the plaintiff to the Dean in that regard remained unanswered. Furthermore, when the plaintiff went to the AKU Finance Department to pay his advance tuition fees for the September-December Semester, he was informed by the relevant officials that they had been instructed not to accept any payment from him and that the summary of his outstanding dues obtained by the plaintiff from the Finance Department revealed that the plaintiff had not even been re-entered on the roll of AKU students despite the recall of his expulsion order. On 29-8-2006, the plaintiff received a notice from the Dean, accusing the Plaintiff of a variety of offences and inviting him for a fresh hearing on 8-9-2006. Along with the said notice, the plaintiff was provided with three copies of audio-tape Cassettes purportedly being a recording of his statements before the Disciplinary Committee, a transcript of the said recording and documents relating to Sessions Case No 187 of 2005. It is pointed out that the allegations made against the plaintiff vide the aforesaid notice dated 29-8-2006 were substantially different from the allegations raised against the plaintiff during the original disciplinary proceedings. It is contended that, in the circumstances, according to the AKU's Disciplinary Procedure Rules, it would be necessary to have fresh investigation conducted by the Disciplinary Committee with respect to the new allegations, however, no fresh investigation was conducted. It is claimed that the plaintiff pointed out the above breach of AKU Disciplinary Procedure Rules and the rules of fairness and natural justice and that he denied all charges against him and challenged the authenticity of the purported recordings of his statement and that he also pointed out that under the AKU's Disciplinary Procedure Rules, the hearing by the Dean could only take place after the Disciplinary Committee had concluded its investigation and forwarded the outcome of the investigation and their recommendations to the Dean. However, the plaintiff was not provided with investigation report and the recommendations of the Disciplinary Committee despite the consent order of this Court requiring the Dean to provide the plaintiff with all material being relied upon by him. The Dean failed to give any appropriate response to the plaintiff's submissions and merely stated that he had already provided all the material relied upon and announced his intention to proceed with the hearing as scheduled on 8-9-2006 despite the plaintiff's request for rescheduling in the light of the issues raised by the plaintiff. It is contended that the Dean proceeded to expel the plaintiff for the second time on 12-9-2006. The plaintiff was thus constrained to file a contempt application against the Dean in the High Court Appeal No,243 of 2006. After hearing the parties, a Division Bench of this Court was pleased to hold that the Dean should have supplied the plaintiff with a copy of Disciplinary Committee's enquiry/ investigation report together with all material referred therein before conducting a hearing and was pleased to set aside the aforesaid expulsion order dated 12-9-2006. An appeal filed by the AKU against the aforesaid order was dismissed by the Hon'ble Supreme Court vide order dated 13-11-2006. On 15- 12-2006, the Dean issued yet another notice to the plaintiff requiring him to appear for hearing on 26-12-2006 in respect of the matter mentioned in the Dean's earlier notice dated 29-8-2006. The notice of 15-12-2006 was accompanied by a copy of the Disciplinary Committee enquiry report and recommendations. After receipt of the notice dated 15-12-2006, the plaintiff pointed out to the Dean that the material provided to him comprised only of Disciplinary Committee's enquiry report and recommendations, three audio-cassettes purportedly containing recordings of the plaintiff's statement along with the transcript thereof and certain documents relating to Sessions Case No,187 of 2005 although the Hon'ble High Court's order dated 13-10-2006 required that the plaintiff be provided with not only a complete copy of the inquiry report but also all the material referred therein. It is stated that the Disciplinary Committee had interviewed a total of 22 persons including the 12 students and 10 staff members and that, as mentioned in the enquiry report, the entire proceedings were recorded verbatim and that the conclusion of the Disciplinary Committee was based upon the statements recorded by them and as such the plaintiff was entitled to the recordings of the statements made by all persons interviewed by the Disciplinary Committee, as without the same being provided, the hearing would be in violation of Court's order and contrary to natural justice. In response to this objection raised by the plaintiff, the Dean provided the plaintiff with a further 8 audio-cassettes that only contained the .Purported statements of 9 students and 6 staff members. He also provided the purported summaries/partial transcripts of the statements allegedly recorded by a total of 3. Students and one staff member along with a document captioned 'Working of the Disciplinary Committee'. It is further stated that in complete contradiction not only to the contents of the enquiry report, but also to the document titled 'Working of the Disciplinary Committee', the Dean claimed that some of the statements made before the Disciplinary Committee could not be recorded due to technical reasons and that the technical reasons were not specified despite the plaintiff's request for elaboration. It is pointed out that the partial transcripts/summaries provided to the plaintiff were unsigned and unverified and the source upon which such summaries/ partial transcripts were based, were not specified. It is claimed that the plaintiff has repeatedly pointed out that the tape-recordings purported to be recordings of his statement are clearly tampered and further that the material that could potentially assist him in his defence is being concealed from him and that the plaintiff in the circumstances, requested that he be provided with the recordings of the entire proceedings before the Disciplinary Committee and be allowed to have the master copy of such recordings verified from an expert, but to no avail. In order to demonstrate the purported mala fides and bias allegedly harboured by AKU against the plaintiff, the plaintiff has cited certain instances, as follows:--

(i) AKU's reluctance over the past 3 years to confront the plaintiff with the material being used against, and that whatever material was provided to the plaintiff was obtained after repeated Court's orders, and still essential material was withheld, thus depriving the plaintiff a proper opportunity to clear his name.

(ii) The premeditated mind of the AKU towards the plaintiff is also apparent from the fact that even after the plaintiff was re-admitted into AKU for the second time upon the orders of a learned Division Bench of this Court and the AKU's appeal before the Hon'ble Supreme Court was dismissed, the AKU authorities (while ostensibly complying with Court orders to admit him) continued to treat the plaintiff as an expelled student in their records.

(iii) Thebias is also clearly demonstrated by AKU's heavy handed attempt to fail the plaintiff in his Psychiatry exam in December, 2006 despite the fact that he had met all course requirements and passed the exam with flying colours, Initially, the results displayed on the AKU notice board showed that the plaintiff had failed the Psychiatry exam because he had not attended 4 of the scheduled group discussions while maximum permissible absence were only two. Vide letter dated 19-1-2007 addressed to the Coordinator of the Psychiatry Department, the plaintiff pointed out that he had only missed one, group discussion and attached the signed statements of all seven fellow group members testifying to this fact. Subsequently, all of the afore-mentioned seven group mates were summoned to the office of Manager, Student Affairs and reprimanded and it was only after the plaintiff complained vociferously to the Dean, Medical College and the President, AKU of the evident bias being exhibited against him that the AKU backtracked and changed the results to show that the plaintiff had obtained a 58% pass percentage. However, even this result did not accurately reflect the plaintiff's performance and he was forced to ask for detailed break-up of his marks, and that realising the precariousness of their situation, instead of issuing a detailed break-up, the AKU administration chose to alter the marks sheet again and increased the plaintiff's marks to a 70% pass percentage.

3. By letter dated 26-2-2007, the plaintiff requested the Dean to provide him copies of all the tape- recordings of all the students and staff members interviewed by the Disciplinary Committee and he should have allowed to have the tape-recordings authenticated by an expert and he be allowed opportunity of cross-examining the students/staff members upon their statements, a transcript of his fellow student's Furqan bin Irfan's hearing before. The Dean should be provided to him along with the reasons for reducing his punishment and that the hearing in the matter should be conducted before a neutral and senior person from outside the AKU, who enjoys the respect of the medical community.

4. It was pointed that the above was necessary for him to take appropriate defence. However, the request was ignored and vide order dated 17-4-2007, the plaintiff was expelled for the third time in respect of same alleged offence. It is claimed that as a result of impugned order, the plaintiff has been put to immense mental torture and pressure, as his entire career is in danger of being destroyed and a stigma has been created around his reputation and he is not _being allowed to continue with his medical education. The plaintiff thus sought a sum of Rs,30 Million by way of general damages for the interruption of his career and the mental suffering and torture he has already undergone due to AKU's mala fide act.

5. In their Written Statement, AKU raised the following preliminary legal objections:---

(A) That the suit is barred by the principle of res judicata, as the allegations of mala fides, failing to provide an opportunity of hearing and/or purported breach of rules of natural justice are no longer available to the plaintiff, as he has, in terms of consent order passed in the High Court Appeal No,243 of 2006, agreed to be heard by the Dean, AKU.

(B) That the Dean, after providing every opportunity of hearing and after providing to him copies of the entire material relied upon by the Dean, passed fresh orders expelling the plaintiff from the University and in such view of the matter, the plaintiff is estopped from alleging the same grievance in the instant suit, as those contained in the referred to earlier suit.

(C) The plaintiff has no cause of action against the defendant. Admittedly the defendant acted in strict compliance of the aforesaid compromise application and order of the Division Bench of this Court.

(F) The suit is not maintainable under section 15 of the Aga Khan University Order, 1983 ("the Order")

(PLD 1983 Central Statutes 65).

(G) The suit is not maintainable under section 42 of the Specific Relief Act, 1877, as the plaintiff has no legal character as stipulated in section 42 of the Act and, as such is not entitled to any relief.

(H) The conduct of the plaintiff has been such as to disentitle him to the assistance of this Court in terms of section 56(j) of the Specific Relief Act, 1877.

6. On the merits, it was submitted that the plaintiff was admittedly involved in transporting drugs to the University and that he went to Sohrab Goth in his car with his three friends and after purchasing drugs from a drug dealer brought the same to the University Campus. As a consequence of the consumption of the said drugs one of the quartets, namely, Asad Aftab, died. It is alleged that the plaintiff by his conduct demonstrated a callous 'disregard for human life and such a person would never attain the distinction of being a caring professional. It is alleged that the plaintiff was a principal player in the events leading to the death of Asad Aftab, as he went to Sohrab Goth in his aunt's car, which he drove and illegally brought the drugs to the University Campus. It is claimed that in the statement made by the plaintiff, the plaintiff acknowledged that the mobile cell phone of Mad Aftab was sold to destroy evidence and to protect the identity of the drugs dealer and further that he supressed the information, lied to the authorities, and only made disclosures one month after the death of Asad Aftab. It is further alleged that the plaintiff in his statement recorded before the Disciplinary Committee, admitted going to buy drugs in his aunt's car, admitted meeting with the drugs dealer, admitted bringing the drugs to the University Campus, admitted that he had been "immoral", admitted that "this is my fault" and admitted that he did not disclose the reason for Asad Aftab's critical condition. It has been denied that the plaintiff was expelled due to media pressure. It is submitted that the Plaintiff was not singled out for such punishment and that all the surviving members of the quartet, which went to Sohrab Goth for purchasing drugs i.e, the plaintiff, Zeeshan Ashraf and Qazi Asad were also expelled from the university. As regards Furqan bin Irfan, it is submitted that his punishment was reduced because admittedly he did not play any part in procuring the drugs, did not accompany the plaintiff and others to Sohrab Goth nor played any part in transporting the drugs to the University Campus. It is further stated that Furqan bin Irfan had incidentally gone to the room where drugs were being consumed and that, therefore, there were clear extenuating circumstances for reducing his sentence. As regards the allegation that the university refused to provide copy of the disciplinary proceedings against all allegedly involved students, it is submitted that the disciplinary proceedings against other students could not be provided to the plaintiff, as it may have exposed them to threats and considerable danger, just as the Disciplinary Committee proceedings against the plaintiff could not be provided to the other students. It is submitted that the plaintiff's own statements were sufficient to result in the expulsion of the plaintiff. It is submitted that in terms of the consent order passed in High Court Appeal No,243 of 2006, the plaintiff had agreed that the matter be heard afresh by the Dean and accepted the Dean's powers to pass a fresh order. It is denied that the allegation contained in the notice dated 29-8-2006 were materially different from the earlier allegations. It is claimed that the very same set of facts was the subject-matter of the referred notice dated 29-8-2006. It is contended that in case the plaintiff had any reservations about the said notice and if the same was breaking new ground, as alleged, then he should have moved appropriate application in High Court Appeal No,243 of 2006 and that in view of the fact that this was not done, the plaintiff cannot at this belated stage, allege that the nature of allegations was substantially different. It is contended that the order passed in High Court Appeal No,243 of 2006 did not require that "fresh investigation" be conducted. It is denied that the plaintiff denied authenticity of the recordings. It is claimed that all the material relied upon by the Dean and all material available with the defendant was admittedly provided to the Plaintiff and that the plaintiff was only interested in procrastinating the matter and was seeking repeated adjournments. The exchange of correspondence, as claimed by the plaintiff, was not denied. It is contended that the matter, which was heard by the Dean pertained exactly to the same matter earlier investigated by the Disciplinary Committee, which was the plaintiff's going to Sohrab Goth for buying drugs in his aunt's car, buying illegal drugs, transporting the same to University Campus in the same car, consumption of the same at University Campus and the resultant death of Asad Aftab as a consequence of using the said drugs. It is claimed that those matters had been thoroughly probed by the Disciplinary Committee and as such there was no need for any fresh investigation. It is stated that admittedly audio-tape cassettes containing the statements of 9 staff members and 9 students were provided to the plaintiff along with the transcripts of his own statement. In view of the fact that the tape-recordings of one staff member and 3 students could not be made, summary of the same was also provided. It is submitted that the plaintiff did not place reliance upon any material save the plaintiff's own statement and that such statement was never denied by the plaintiff. Regarding the plaintiff's allegation that recordings of his statement are clearly tempered, it is submitted that if the same were tampered, the plaintiff could simply point out that such and such statement in the tape and in the transcript were not made by him and that he had stated something else. However, the plaintiff did not take issue with a single line of the transcript or with any portion of the tape-recordings, which confirms that the same was as it had been recorded and no tampering thereof had taken place. It is contended that the question of verification of recordings by an expert would only arise if the plaintiff had alleged that at such and such place his voice has been over taped or otherwise altered and that he had not stated what has been recorded and/or had stated something else.

However, since the plaintiff had not pointed out even a single instance of tampering nor taken issue with any portion of the tapes, the question of their verification by an expert simply does not arise. It is submitted that even in the instant suit, the plaintiff has not once stated that the statements, as mentioned in the expulsion letter issued by the defendant, were not made by him. It is submitted that there was no reluctance on the part of the defendant in providing the material "being used against" the plaintiff and that the only material the Dean relied upon were statements made by the plaintiff himself. It is claimed that tape containing such statements were provided to the plaintiff in the very first instance. It is further claimed that the defendant interpreted the above order passed in High Court Appeal No,243 of 2006 to mean that it was obliged to provide only such material that was to be relied upon by the defendant. However, after the matter had been clarified by the Hon'ble Supreme Court, the entire material in possession of the defendant was provided to the plaintiff and further that the reason for the defendant's cautious approach was to safeguard other students and staff members. It is further submitted that there was no "premeditated mind" as alleged or otherwise. It is denied that there was any bias by the Dean or by the defendant. It is submitted that there was no attempt to fail the plaintiff as alleged. It is submitted that the result referred to in para-18 of the plaint, was issued prior to the plaintiff's letter dated 19-1-2007, wherein the plaintiff first made the allegation of him being failed. It is contended that there was nothing stopping the Plaintiff to authenticate the tape-recordings by an expert or by any other means if he so considered necessary and that there was also nothing preventing the plaintiff to produce such expert to give evidence. It is further contended that since the defendant did not rely upon any statement of any student or staff member, there was no need to cross-examine them and further that in case the plaintiff felt that any student/staff member was supporting the plaintiff, he was free to have produced him/them as witness(es). It Is submitted that Furqan bin Irfan's hearing had no concern with the plaintiff. The defendant would have violated the rights of Furqan bin Irfan if the plaintiff was provided with the material pertaining to Furqan bin Irfan. As regards reduction of punishment awarded to Furqan bin Irfan, it is submitted that firstly, he was not amongst the four students, which included the plaintiff, who had gone to Sohrab Goth to purchase drugs there and who had brought the same to the University Campus and, secondly, Furqan bin Irfan had inadvertently gone to the hostel room of the University where drugs were being consumed.

7. On 23-2-2009 the following consent issues were adopted:

(1) Whether the instant suit is maintainable?

(2) Whether the relief(s) sought by the plaintiff are barred by sections 42 and 56(j) of the Specific Relief Act, 1877?

(3) Whether the order passed in HCA No,243 of 2006 operates as res judicata and has the effect of barring the instant suit?

(4) Whether the instant suit is barred by virtue of section 15 of the Aga Khan University Order, 1983?

(5) Whether the expulsion order dated 17-4-2007 is unlawful, illegal, discriminatory and/or passed in violation of the principles of natural justice, and if so, to what effect?

(6) Whether the plaintiff is entitled to the damages claimed, or at all?

(7) What should the decree be?

8. The plaintiff in support of his case filed his affidavit-in-evidence and produced a number of documents. He was thoroughly cross-examined by the counsel for the defendant. The defendant on the other hand filed affidavits-in-evidence of Professor Dr. Muhammad Khursheed, who served as the Dean, Medical College of the Defendant University from August 12, 2003 to December 31, 2008, Dr. Anwar Ali Siddiqui, Professor of Bio Chemistry at the defendant University and who was the Chairman of the Disciplinary Committee, and of Ameen Ashiq Ali, the Manager, Legal Affairs of the defendant-University, who at the relevant time was Senior Assistant Manager, Legal Affairs of the defendant University. The witness Dr. Anwar Ali Siddiqui produced certain documents and audio- cassettes. All the three witnesses were thoroughly cross-examined by the counsel for the plaintiff.

9. I have heard the learned counsel for the parties at length and have perused the record of the case thoroughly and shall deal with each issue separately as follows:-- ISSUE NO.1: Whether the instant suit is maintainable?

10. Paragraphs "D" and "E" of the preliminary legal objections set out in the Written Statement state that the suit is not maintainable because the plaintiff did not avail the remedies of an appeal and review against the expulsion order passed by the Dean provided to him under the AKU Disciplinary Procedure Rules. Mr. Salahuddin Ahmed, the learned counsel for the plaintiff submitted that in the first place, admittedly the AKU Disciplinary Procedure Rules have no statutory force and the remedy of a civil suit cannot be ousted by reason of failing to avail alternate remedy under internal regulations. He further submitted that even where the statute itself provides alternate remedy, it is axiomatic principle of law that the mere A existence of an alternate statutory remedy does not curtail the right to prefer a civil remedy in a Court of law unless the same is barred. The learned counsel further submitted that the plaintiff had in paragraph 18 of the plaint, detailed the bias and mala fides of the AKU's administration in the matter and had clearly stated in paragraph 20 of the plaint that in view of the clear and persistent mala ,ides of the AKU authorities, his right to appeal and review the Dean's decision before the higher-ups within the AKU hierarchy was rendered illusory.

11. As rightly pointed out by Mr. Salahuddin Ahmed, AKU Disciplinary Procedure Rules have no statutory force and, therefore, it cannot be successfully pleaded that the remedy of a civil suit was/is not available to the plaintiff for the reason of his failing to avail the alternate remedy provided under such internal regulations. Even otherwise, it is now well laid down that even where the statute itself provides an alternate remedy, existence of such alternate statutory remedy does not curtail the right to prefer a civil remedy in a Court of law unless the same is otherwise barred. I, therefore, do not find any substance in the above objection.

ISSUE NO.2: Whether the relief(s) sought by the plaintiff are barred by section 42 and 56(j) of the Specific Relief Act, 1877?

12. Mr. Makhdoom All Khan, the learned counsel for the "AKU" submitted that the plaintiff has no legal character as stipulated in section 42 of the Specific Relief Act, 1877 and, hence is not entitled to a declaratory relief. He submitted that even otherwise section 42 and so also section 56(j) of the Specific Relief Act, deal with declaratory and injunctive relief respectively which were discretionary and equitable relief and that the principle laid down in section 56(j), resting on the maxim that he who seeks equitable relief do equity and should come with clean hands as laid down through a string of judgment, is not limited to the suit for injunction but is also attracted to the suit for declaration. He further submitted that since the plaintiff had already been expelled at the time of filing of the suit, hence he was also disentitled to the injunctive relief. Mr. Khan further submitted that the plaintiff in this case has come to the Court with unclean hands and has admitted before the Disciplinary Committee that he aided and abetted in use, possession and procurement of drugs and is, therefore, disentitled to any relief under section 42 and 56(j) of the Specific Relief Act.

In support of his contention the learned counsel relied upon the following cases:--

(i) Muhammad Amin v. Mian Muhammad, PLD 1970 B.J. 5; (ii) Haji Noor Muhammad v. Ghulam Masih Gill, PLD 1965 W.P. (B.J.) 1 and (iii) Basheshar Nath v. Municipal Committee, AIR 1940 Lah.

697.

(i) In the case of Muhammad Amin, the Court, whilst observing that sections 42 and 56 of the Specific Relief Act deal respectively with suits for declaration and injunction, both being discretionary and equitable reliefs. The principle laid down in section 56(j) rests on the maxim that he who seeks equitable relief do equity and should come with clean hands. It was further observed that although the relevant provisions which embodies this principle apparently appears to have been made only in regard to a suit for injunction but in a chain of judicial pronouncement the principle has been equally found to be applicable to declaratory suits.

(ii) In the case of Haji Noor, it has been laid down that the plaintiff who asked for an injunction must be able to satisfy the court that, his own acts and dealing with the matter have been fair and honest, and free from any taint of fraud or illegality and that if, in his dealing with the person against whom he seeks reliefs, or with their properties, he has acted in an unfair and unequitable manner he cannot have relief.

(iii) To the similar effect is the judgment in the case of Basheshar Nath v. Municipal Committee AIR 1940 Lah.

697.

13. Mr. Salahuddin Ahmed, on the other hand, submitted that section 42 of the Specific Relief Act is not exhaustive and the Courts are not bound by its technicalities while granting relief. He further submitted that even private educational institutions are subject to statutory regulations and that the nature of their function, which primarily is to provide education, is such, that they are to be treated as performing public duty, the same may thus be performed fairly and honestly irrespective of any strict legal right vesting in the students. He further submitted that even where the plaintiff was found not entitled to the relief of declaration or injunction, the Court may mould the relief by granting cancellation of the impugned expulsion order under section 93 of the Specific Relief Act. In support of his above contention, the learned counsel relied upon the case of ARIF MAJEED MALIK AND OTHERS V. BOARD OF GOVERNORS, KARACHI GRAMMAR SCHOOL (2004 CLC 1029), wherein, dealing with a similar expulsion case, a Division Bench of this Court observed that section 42 is not exhaustive and the Court need not to remain bound in its technicalities while granting relief. The learned Division Bench further observed that even private schools are subject to statutory regulations, moreover the nature of their function (i.e, providing education) is such that they are to be treated as performing a public duty and like other public duty, the same must be performed fairly and honestly irrespective of any strict legal right vesting in the students and that in the circumstances, it is open for the Court to enforce this obligation on the part of the school through grant of perpetual injunction under section 3 of the Specific Relief Act. It was further held that even if the plaintiff was not found entitled to relief of declaration or injunction, the Court could always mould the relief by granting cancellation of the impugned expulsion order under section 39 of the Specific Relief Act.

14. As has been rightly held by the Division Bench in the above referred case, section 42 is not exhaustive and even the private education institutions, being subject to statutory regulations, and being engaged in providing education, which indeed is a public duty, are obliged to perform such public duty/functions fairly and honestly, irrespective of any strict legal right vesting in the students and, therefore, if the case is made out, the plaintiff cannot be deprived of an appropriate relief either it be by way of a perpetual injunction under section 3 of the Specific Relief Act, or by granting cancellation of the impugned expulsion order under section 39 of the Specific Relief Act, where it is found that the plaintiff is not entitled to a relief of declaration or injunction. I, therefore, do not find any substance in the objection and overrule the same.

15. As regards Mr. Khan's contention, that the plaintiff's conduct has been such as to disentitle him to equitable relief under section 56(j) of the Specific Relief Act, as rightly pointed out by Mr. Salahuddin Ahmed, no specifics of such "misconduct" have been pleaded. Indeed the only instances of "misconduct" cited by AKU in the Written Statement are those that formed the basis of the disciplinary proceedings against the plaintiff and which he challenged and disputed by way of the instant suit, which factual aspect has to be examined, scrutinised and adjudged in the present proceedings and in respect whereof extensive evidence has been recorded. It may be noted that in order for section 56(j) to be pleaded successfully, as a preliminary argument/obstacle, there must be some admitted action or inaction on the part of the plaintiff i.e, of the nature as to disentitle him to the Court's assistance and, as noted above, except for the allegations, which formed basis of the impugned expulsion, and, which are being examined and scrutinised herein, no allegations have been made against the plaintiff so as to disentitle him to an equitable relief under section 56(j) of the Specific Relief Act. I, therefore, do not find any force in the objection and overrule the same accordingly. ISSUE NO.3: Whether the order passed in HCA No,243 of 2006 operates as res judicata and has the effect of barring the instant suit?

16. Mr. Makhdoom Ali Khan submitted that in terms of the consent order dated 13-10-2006 passed in HCA 243 of 2006 the Dean was directed to hear the plaintiff and decide the matter after providing all the relevant material to the plaintiff. He submitted that the allegations of purported mala fide, failing to provide opportunity of hearing and/or any purported breach of rules of natural justice are no longer available to the plaintiff as he had agreed to being reheard by the Dean. He further submitted that the directives of the court were fully complied with, the plaintiff was provided the entire relevant record and was also heard by the Dean before passing the impugned order and that AKU having fully complied with the orders of the Court and hiving passed the impugned order after following the dictates and adopting the procedure as prescribed by the Court, no cause of action accrued to the plaintiff for the present suit. Since, no order for referring the matter to the disciplinary committee afresh and for investigation into the charges as contained in the show- cause notice dated 29-8-2006 was made despite the fact that the plaintiff in his contempt application has alleged that the said show cause notice contained fresh/additional grounds, the plaintiff's case based on such allegations is also hit by the principle of res judicata.

17. As noted earlier, the plaintiff was previously expelled by AKU on 4-5-2005 in relation to the same incident, he challenged the said expulsion through Suit No,1293 of 2005 before this Court. The main ground urged was a breach of natural justice inasmuch as the plaintiff had not been allowed to see the material that was used against him in the disciplinary proceedings and formed the basis of the expulsion order. On 2-6-2006, after hearing both the parties, a learned Single Judge of this Court was pleased to pass a detailed interlocutory order restraining AKU from barring the plaintiff from continuing his medical education and allowed him to attend classes at his own risk and cost subject to the decision of the suit. High Court Appeal No,243 of 2006 filed by the AKU against the said interlocutory order was disposed of through a consent order dated 6-7-2006, thereby recalling the expulsion order but setting AKU, at liberty to pass afresh order, after supplying him copies of the entire material relied upon and after affording the plaintiff opportunity of hearing.

However, the Dean by order dated 12-9-2006, yet again expelled the plaintiff without providing him copies of the entire material relied upon, the plaintiff thus preferred a contempt application in High Court Appeal No,243 of 2006 and the learned Division Bench of this Court was pleased to set aside the second expulsion order in its contempt jurisdiction, vide its order dated 13-10-2006 on the ground that it was passed in violation of the consent order and further directed the Dean to supply the plaintiff a complete copy of the enquiry/investigation report along with all the material referred in the report within three (3) days from the order, and to provide him an opportunity of hearing within seven (7) days thereafter and then pass appropriate orders. The AKU preferred a Petition bearing No,495-K of 2006 before the Hon'ble Supreme Court assailing the order dated 13-10-2006 passed by the learned Division Bench. On 13-11-2006, the Hon'ble Supreme Court upheld the order passed by the learned Division Bench, observing that although the plaintiff also had the option to initiate separate proceedings against the second expulsion order instead of seeking such relief through a contempt application, nevertheless, High Court was justified "to direct the implementation of the order in question to meet the ends of justice". The Hon'ble Supreme Ccurt further observed that the proceedings before a domestic tribunal are not immune from, the rule of natural justice and order passed by such tribunal without adhering to this rule is coram non judice and proceed to dismiss the AKU's petition.

18. Thereafter the Dean conducted another hearing and proceeded to expel the plaintiff for the third time on 17-4-2007. The plaintiff's case is that third expulsion was also in violation of the consent order dated 6-7-2006 read with subsequent order dated 13-10-2006 passed in High Court Appeal No,243 of 2006, inasmuch the entire material referred in they enquiry report was still not provided to him and that the expulsion order is even otherwise bad on the grounds of, inter alia, discrimination, breach of natural justice and biasimala fide. In the foregoing circumstances it cannot be said that either no cause of action accrued to the plaintiff for filing the present suit and/or that the suit is hit by the principle of res judicata and as rightly submitted by Mr. Ahmed, in the above circumstances, it was the plaintiff's option whether to pursue the matter in the contempt jurisdiction or to file separate civil suit. ISSUE NO.4: Whether the instant suit is barred by virtue of section 15 of the Aga Khan University Order, 1983?

19. In paragraph-F of the preliminary legal objections set out in the Written Statement, AKU has sought to protect the expulsion order passed by the Dean through reliance upon section 15(1) of the Aga Khan University Order, 1983. Section 15 of the Aga Khan University Order, 1983 reads as follows:-- "15(1) No suit shall lie against anything done in good faith or intended to be done under this Order.

15(2) No decision of Chancellor or Board shall be called in question before any Court."

20. Mr. Makhdoom Ali Khan, the learned counsel for AKU submitted that in terms of section 15(1) of Aga Khan University Order, 1983, all actions taken in good faith are immune from judicial scrutiny.

He submitted that it is a simple case of a student, who was issued a show cause notice on the charge of serious misconduct and who has been expelled by the Dean on the recommendations of the Disciplinary Committee after thorough investigation and after hearing the plaintiff, for cogent reasons. The learned counsel further submitted that there is absolutely no mala fide on the part of AKU, as the plaintiff, though alleged mala fide, but has completely failed to prove any mala ides in the action and therefore the ouster clause i.e, clause 15 of the AKU order is applicable and thus this Court has no jurisdiction in the matter.

21. He submitted that the University exercises parental jurisdiction and the Court must find every reason to uphold the executive order and not to interfere. He contended that there is no strict application of natural justice in cases of Universities/ Educational Institutions. The learned counsel in support of his contention regarding mala fide, relied upon the following judgments:--

(i) PIA v. Tanweer-ur-Rehman PLD 2010 SC 676;

(ii) Federation v. Saeed Ahmed Khan PLD 1974 SC 151;

(iii) Munir-ur-Din v. Secretary, D.C. University of Punjab 1991 MLD 2371;

(iv) M. Anwar v. M. Yasin 2003 MLD 1485;

(v) Ch. Shabbir Hussain v. Registrar, L.H.C. PLD 2004 SC 191;

(vi) Afzal Motors v. Province 2009 CLD 798;

(i) In the case of Tanweer-ur-Rehman the Hon'ble Supreme Court held that where the claimant had no basis or entitlement in his favour, it would not be entitled to protection of principle of natural justice.

(ii) In the case of Saeed Ahmed, the Hon'ble Supreme Court, dealing with the question of mala fide, whilst observing that action taken in bad faith is usually action taken maliciously in fact, that is to say; in which the person taking the action does so out of personal motives, either to hurt the person against whom the action is taken, or to benefit oneself, action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or actions taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mafa fides, and that in order to establish the case of mala fide, some such specific is necessary and it must be supported by some prima facie material to justify the court to call upon the other side to produce evidence in its possession.

22. It was further held that mala fide is one of the most difficult thing to prove and the onus is entirely upon the person alleging mala fide to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted the action cannot be challenged merely upon a vague allegation of mala fide.

(iii) In the case of Munir-ur-Din, the learned Single Judge of the Lahore High Court has held that it is well-settled that the proceedings before the Disciplinary Committee are in the nature of a domestic inquiry and the University has fullest authority vis-a-vis the candidates taking the examination in the same manner as a parent or guardian. The presumption in such a case is that the candidate had been proceeded against properly and without any malice. The burden of proof would shift to the authorities only if the candidate is able to dispel the presumption by producing some evidence showing that the action against him was mala fide. Unless there is sufficient evidence it would be quite appropriate for the authorities, provided they give fair opportunity of hearing to the candidate, to proceed against him for violation of the rules and regulations without strictly adhering to the usual judicial procedure.

(v) In the case of M. Anwar, a Single Bench of the Lahore High Court held that the onus of proving the element of malice was on the respondent/plaintiff and since the plaintiff was not able to discharge the basic onus, therefore, both the courts below were wrong in observing that protection of action taken in good faith was not available to the mayor, the petitioner.

(vi) In the case of Ch. Shabbir Hussain, the Hon'ble Supreme Court has reiterated the principle that the allegation of mala fides requires proof of a higher order owing to its serious nature and the burden of proof lies heavily on the person who make it.

(vii) To the same effect is the judgment in the case of Afzal Motors v. Province; 2009 CLD 798.

23. In respect of allegations of bias, Mr. Khan placed reliance on the following cases:--

(viii) Muhammad Shah Johan v. Deputy Inspector PLD 1966 Dacca 325;

(ix) The President v. J. Shaukat Ali PLD 1971 SC 585;

(x) Federation of Pakistan v. Akram PLD 1989 SC 689;

(xi) Chaudhry Azhar v. Punjab Public Service PLD 2004 SC 4;

(viii) In the case of Muhammad Shah Jehan, a Division Bench of the High Court of Dacca laid down that in order to succeed on the ground of bias, it is necessary to go as far as proving actual bias. It is however equally true that it would not be enough for a party to succeed in getting a proceeding quashed on the ground of bias, if it only succeeds in showing a bare possibility of a mere suspicion of bias.

24. To the same effect are the judgment in the cases of the President v. J. Shaukat Ali; PLD 1971 SC 585, Federation of Pakistan v. M. Akram; PLD 1989 SC 689 and Chaudhry Azhar v. Punjab Public Service: PLD 2004 SC 4.

25. On the other hand, Mr. Salahuddin Ahmed submitted that section 15 expressly limits its scope only to the persons or authorities performing actions that are done or intended to be done under the Order and, are so done in good faith. The learned counsel contended that a plain reading of the impugned order would clearly show the same does not fall within the scope of section 15 and that even if it is assumed for the purpose of arguments that the impugned order is an act done or intended to be done under the Aga Khan University Order and, hence would enjoy the protection of section 15 of the said Order, it is now well-settled that statutory ouster clauses shall be of no avail where action is mala fide in law and facts, coram non judice, or in violation of natural justice. In support of his contention, the learned counsel relied upon the cases of FEDERATION OF PAKISTAN AND ANOTHER V. MALIK GHULAM MUSTAFA KHAR (PLD 1989 SC 26), and ABBASIA COOPERATIVE BANK AND ANOTHER V. HAKEEM HAFIZ MUHAMMAD GHAUS AND 5 OTHERS (PLD 1997 SC 3). Mr. Ahmed submitted that the' Plaintiff's case against AKU is that the expulsion order passed by the Dean were patently without lawful jurisdiction or authority, bias, discriminatory, mala fide in facts and law and in violation of AKU Disciplinary Procedure Rules, the rules of natural justice and the orders of this Court passed in High Court Appeal No,243 of 2006 and that the details of these allegations are set out, inter alia, in paragraphs 16 to 20 of the plaint and, therefore, in any event section 15 of the Aga Khan University Order, 1983 does not bar the instant suit.

26. In ABBASIA COOPERATIVE BANK AND ANOTHER V. HAKEEM HAFIZ MUHAMMAD GHAUS .AND 5 OTHERS (PLD 1997 SC 3), it has been held that the civil court under section 9 of the C.P.C. Are competent to try all suits of civil nature except those which were ousted from their jurisdiction either expressly or by necessary implication and further that it is well settled principle of interpretation that the provisions contained in statute ousting Jurisdiction of Courts of general jurisdiction should be construed very strictly, and unless the case fell within letter and spirit of the barring section, no effect should be given thereto and further that it is also a settled principle of law that where jurisdiction of Civil Courts to examine validity of any action or order of Executive Authority or Special Tribunal was challenged on the ground of ouster of jurisdiction of Civil Court, it must be shown; (a) that the Authority or Tribunal was validly constituted under the Act; (b) that the order passed or action taken by the Authority or the Tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under law which conferred exclusive jurisdiction on the Authority or the Tribunal; and (d) that in passing order or taking action, principles of natural justice were not violated, and unless all such conditions were satisfied, order or action of the Authority or the Tribunal would not be immune from being challenged before Civil Court. The Hon'ble Supreme Court further proceed to hold that as a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it, or the action or order is in excess or lack of jurisdiction, or mala fide, or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court.

27. In the case of FEDERATION OF PAKISTAN AND ANOTHER V. MALIK GHULAM MUSTAFA KHAR (PLD 1989 SC 26), the Hon'ble Supreme Court, whilst interpreting Article 270-A of the Constitution and the Martial Law (pending proceedings), 1985, observed that it appears that the object was merely to afford protection to the dispensation which came into existence as a result of 'Constitutional deviation', it was held that it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. The Hon'ble Supreme Court proceeded to hold further that the Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide.

28. Since, as noted above, the plaintiff has impugned the Expulsion Order as without lawful jurisdiction, bias, discriminatory, mala fide, and in violation of the AKU Disciplinary Procedure Rules, the rules of natural justice and the orders of this Court passed in High Court Appeal No,243 of 2006, as set out in the plaint, following the above dictum of the Hon'ble Supreme Court, I would answer the issue under discussion in negative.

ISSUE NO.5: Whether the expulsion order dated 17-4-2007 is unlawful, illegal, discriminatory and/or passed in violation of the principles of natural justice, and if so, to what effect?

29. Mr. Salahuddin Ahmed submitted that the crux of the plaintiff's case is that AKU was obliged to act justly, fairly and reasonably while taking action against him, however, the evidence on record shows that AKU failed to do so. He submitted that the expulsion order was motivated by bias and mala fides, and was discriminatory and disproportionate and that the entire disciplinary proceedings were conducted in violation of the rule of natural justice, therefore the impugned order is liable to be set aside. He further submitted that the conduct of AKU while taking the impugned action against the plaintiff is violative of the principle laid down by our superior Courts, whereby it has been laid down that the educational institutes were bound by the rule of natural justice while taking disciplinary action against their students and that the minimum requirement of fairness must be observed by them in that regard and that the person ought to be effected must, at least, be made aware of the nature of the allegations against him and be given a fair opportunity to meet such allegations. In support of his contention, the learned counsel relied upon the cases of THE UNIVERSITY OF DACCA and ANOTHER V. ZAKIR AHMED (PLD 1965 SC 90), VICE- CHANCELLOR, UNIVERSITY OF PUNJAB and 2 others V. MUHAMMAD ZAHUR NASIR (1985 SCMR 802) and ARIF MAJEED MALIK and others V. BOARD OF GOVERNORS KARACHI GRAMMER SCHOOL (2004 CLC 1029). Mr. Ahmed submitted that AKU has failed to meet the judicially prescribed standard of acting fairly, justly, reasonably and in good faith.

30. Elaborating on the above the learned counsel submitted that in terms of Rule 4.3 of the AKU Disciplinary Procedure Rules the procedure in cases of serious disciplinary offences is that the Dean refers the matter to the Disciplinary Committee, who investigate the matter and communicate the outcome of the investigation to the Dean, the Dean may act upon the recommendations of the Disciplinary Committee or in accordance with his own judgment. He then referred para 3 of to the first expulsion order passed by the Dean on 4-5-2005, which states:- "3. The Disciplinary Committee, on the basis of evidence recorded, including your statement, corroborated by the statements of other students, confirms and proves your involvement in the aforesaid disciplinary offences in procuring and bringing the contraband drugs to AKU Campus, thus guilty of aiding and abetting and possession of the prohibited drugs.

' On the recommendations of the Disciplinary Committee and in accordance with clause 3(f) of the Students Code of Conduct, you are being expelled from the university."

31. The learned counsel submitted that the above clearly shows that, firstly, the Dean relied upon the recommendations and outcome of the investigation conducted by the Disciplinary Committee and, secondly, that the Disciplinary Committee formed its conclusion on the basis of evidence recorded by it, which included statements of the plaintiff as well as other students. He submitted that at the time of first expulsion on 4-5-2005, the plaintiff was neither supplied with the copy of the Disciplinary Committee's enquiry report nor with any of the material referred therein i.e, the recorded statements of the plaintiff and other students and staff. Afterward during the process of appeal and review within the AKU hierarchy, the plaintiff repeatedly sought access to the evidence against him, but to no avail. Thereafter, even when the plaintiff filed Suit No,1293 of 2005 against this first expulsion order, AKU refused to supply the plaintiff with the material against him and did not place it on Court record, and that on 2-6-2006 a learned Single Judge of this Court passed an interim order, holding, inter alia, that this refusal to confront the plaintiff with the material against him was prima facie a breach of natural justice and allowed the plaintiff to continue with his education at AKU pending final decision. The learned counsel pointed out that it has been noted in the order that AKU had neither provided the plaintiff with the material against him during the disciplinary proceedings nor placed the same on record during the Court proceedings. High Court Appeal No,243 of 2006 preferred by AKU against the aforesaid order was disposed of through a consent order dated 6-7-2006, requiring the Dean to give the plaintiff a fresh hearing "after providing him copies of the entire material relied upon". However, even after the consent order, the Dean only provided the plaintiff with three audio-cassettes purportedly containing his recorded statement before the Disciplinary Committee and did not provide the Disciplinary Committee's enquiry report and recommendations, nor did he provide the recordings of the statements of other students and staff, and thus upon being expelled for the second time on 12-9-2006, the plaintiff filed a contempt application in High Court Appeal No,243 of 2006. The learned Division Bench set aside the second expulsion order on 13-10-2006, after an elaborate discussion on the effect of the consent order dated 6-7-2006 read with Rule 4.3 of the AKU Disciplinary Procedure Rules, and directed the Dean to supply the plaintiff with "a complete copy of the enquiry / investigation report along with all the material referred in the report within three (3) days from the date of the order and provide him an opportunity of hearing within seven (7) days thereafter and then pass appropriate order." Continuing with the narration of facts, the learned counsel submitted that after AKU's appeal to the Hon'ble Supreme Court was dismissed on 13-11-2006, the Dean eventually supplied the plaintiff with the Disciplinary Committee's enquiry report vide his letter dated 15-10- 2006. The learned counsel pointed out that through letter dated 29-12-2006, addressed to the Dean, the plaintiff submitted that he was entitled not only to the enquiry report but also to the material referred therein and that as such, since the enquiry report mentions that all proceedings had been recorded verbatim, he should also be supplied with the recordings of the interviews of the other students and staff members and that in response, the Dean, through letter dated 17-1- 2007, stated "we are enclosing herewith eight (8) audio-cassettes containing statements of other students/staff members made before the Disciplinary Committee, also enclosed herewith eight (8) transcripts containing statements, as noted by the Disciplinary Committee of those students/staff members, whose statements could not be tape-recorded due to some technical problem". The learned counsel further submitted that it is an admitted position that the said audio cassettes contained the statements of nine (9) staff members and nine (9) students and in respect of the remaining one staff member and three (3) students, only typed unsigned transcripts/summaries of statements were provided. He submitted that the said concoction of technical problem to avoid handing over the full recorded statements of one staff member and three (3) students is patently mala fide and that the same is not only a violation of the principle of natural justice but is also violative of the specific order of a Division Bench of this Court passed on 13-10-2006 in High Court Appeal No,243 of 2006. In order to discredit the Dean's claim that the statement could not be tape- recorded due to some technical problem, the learned counsel referred to the affidavit-in-evidence of Disciplinary Committee and of Dr. Muhammad Khursheed and their respective cross- examination and pointed out various contradictions, and inconsistence in that regard as shall be discussed in that later part of this judgment. The learned counsel in particular referred to the following portions of Dr. Khursheed's cross-examination in that regard:- "Q. I referred to Exh.P.W.1/41, 3rd line, 2nd paragraph. I put it to you that what you have stated in this, contradicts the last line of paragraph 6 of the affidavit?

' Ans. No, it is not contradictory, the entire proceedings were recorded but there were certain persons approximately three (3), whose statements were not recorded due to technical problem of the recording device."

32. In support of his contention that contrary to the subsequent stance of AKU, the statement of the student and the staff members, were in fact tape-recorded and were withheld by AKU as the same would have demolished AKU's case against the plaintiff, referred to the following portions of Dr. Khursheed cross examination:- "Q. Did the Disciplinary Committee in their report, which they submitted to you, mentioned that some of the persons, who were interviewed, [their] statements were not recorded on audio-tapes?

' Ans. No, "

"Q. I put it to you that you concocted this story of a convenient malfunction of the tape-recorders because there was certain portions of the proceedings before the Disciplinary Committee, which you did not wish to disclose to the Plaintiff?

' Ans. No,"

' Q. I put it to you that the statements of those persons, whose tape-recordings have not been provided tend to exonerate them from wrong doing?

' Ans. It is incorrect."

"Q. If a portion of Khizar Syed's statement was recorded, why was not tape-recording of the same provided?

' Ans. Whatever was recorded was provided, whatever was not recorded was not provided."

"Q. Was Khizar Syed's recording provided?

' Ans. If it was in the transcript, I am sure it was not recorded. My memory does not allow me to recollect this fact."

33. The learned counsel submitted that AKU's failure to make full disclosure to the plaintiff in respect of the statements made by the persons, who were part of disciplinary proceedings in this case is not only breach of natural justice but also a breach of the orders dated 6-7-2006 and 13- 10-2006 passed by this Court and the order dated 13-11-2006 of the Hon'ble Supreme Court.

Moreover, in accordance with Article 129(g) of the Qanun-eShahadat, 1984, this Court is entitled to draw a presumption that evidence which could be and is not produced would have if produced been adverse* to the party withholding it (i.e, AKU). He contended that it is even more suspicious that one of the students, whose tape-recording has not been handed over is Furqan bin Irfan and one of the central tenets of plaintiffs case was that he had been treated in a discriminatory manner, compared to Furqan bin Irfan and submitted that AKU's reliance upon the excuse of tape- recorder mal functioning become even more dubious.

34. On the other hand, Mr. Makhdoom Ali Khan submitted the statement could not be recorded due to malfunctioning of the tape-recorder which came to the knowledge of the defendants latter. He further submitted that since the impugned expulsion order is solely based on the statement of the plaintiff himself, where he has admitted all the charges levelled against him, and no other statement forms basis of the impugned expulsion, no prejudice has been caused to the plaintiff due to non-availability of such recordings. The learned counsel further submitted that if the plaintiff really believed that he could have found support for his case from the statements of the witnesses which could not be recorded and furnished he could have examined those witnesses in the court, however, he has chosen not to do so and therefore cannot now claim that any of those witnesses may have said something which would have change the fate of the case, in any event, the summaries of the statements of all those witnesses whose statements could not be tape-recorded were furnished to the plaintiff and have been produced in evidence before this court. The plaintiff has not been prevented from benefiting, if the statements of those witnesses were/are really beneficial to the interest of the plaintiff. Mr. Khan submitted that since all that material that was in power and possession of AKU was provided to the plaintiff and has been produced as evidence before this Court, no adverse inference can be drawn against AKU.

35. Referring to the objection regarding belated addition of new charges against the plaintiff, Mr. Salahuddin Ahmed, the learned counsel for the plaintiff submitted that the same was in violation of the AKU Disciplinary Procedure Rules, the rule of natural justice, and the Court orders. He submitted that the initial enquiry notice dated 9-12-2004 issued to the Plaintiff mentioned his "purported involvement in possession and use of drugs on campus". He pointed out that the first expulsion order of 4-5-2005 also found the plaintiff guilty of aiding and abetting the possession of drugs on campus and referred to the orders dated 6-7-2006, 13-10-2006 and the order passed by the Hon'ble Supreme Court. The learned counsel pointed out that these new charges included "being present when the drugs were consumed, failing to prevent or stop consumption/use of drugs and/or failing to report the ,consumption of the same. ... Not reporting 'the critical condition of a fellow student . . . Failing to disclose the factors to the hospital regarding Asad Aftab's condition and health, supressing and concealing material information, showing complete disregard for the safety of others and spending the night of September 15-16, 2004 in the hostel without permission". Mr. Salahuddin Ahmed submitted that being present when drugs were consumed and failing to stop or report the same is an entirely different charge from aiding and abetting the possession or usage of drugs, as the latter is an act of commission while the former is an act of omission and that it is doubtful whether the same even constitutes misconduct under the AKU Disciplinary Procedure Rules and that the charge relating to Asad Aftab is of entirely different nature as is the charge relating to hostel stay without permission. However, the Dean's third expulsion order dated 17-4- 2007 finds the plaintiff's guilty of the old charge as well as of all the new charges and then proceeds to expel the plaintiff. He further submitted that when the Dean first raised these new charges through his letter dated 29-8-2006, the plaintiff had responded vide letter dated 89-2006 expressly pointing out that these new charges were never raised before and under rule 4.3 of the AKU Disciplinary Procedure Rules, fresh charges of serious nature were being raised then Disciplinary Committee should be directed to hold investigation for these charges, as such the plaintiff was entitled to, firstly, participate in the fresh investigation to be conducted by the Disciplinary Committee and, thereafter, to a copy of the committee's enquiry report. For the Dean to hold a hearing and pass any order without any prior investigation by the Disciplinary Committee, without providing the plaintiff with a copy of the enquiry report, would not only be a violation of the AKU Disciplinary Procedure Rules, but also of the consent order dated 6-7-2006 passed in High Court Appeal No,243 of 2006. However, the Dean ignored the request of the plaintiff and in his cross-examination, the Dean admitted that his third expulsion order found the plaintiff guilty on both, the old charges and the new charges, despite the fact that the committee did not give any factual finding or recommendation on the new charges. The learned counsel contended that in the foregoing circumstances, the Dean's third expulsion order was unfair, unreasonable and in breach of the rule of natural justice, inasmuch as it found the plaintiff guilty of new offences, which were not mentioned in the original enquiry notice and were introduced subsequently. The learned counsel submitted that there is much case-law on the proposition that where the authority takes a decision on several grounds and even if one of these grounds is subsequently proved to be defective in law or facts, the order would fall down wholly.

The reason is that Courts will not usually try to second guess the subjective judgment of the authority and ascertain which of the several grounds taken had greater influence on its mind while reaching its decision, and relied upon the cases of Khawaja MUHAMMAD SHARIF V. FEDERATION OF PAKISTAN AND 18 OTHERS (PLD 1988 LAH. 725, ARBAB AKBAR ADIL V. GOVERNMENT OF SINDH (PLD 2005 KARACHI 538), DWORDAS BHAI V. JAMMU AND KASHMIR (AIR 1957 SC 164) and DHEERAJ LAL GARDHARI LAL V. COMMISSIONER OF INCOME TAX (AIR 1955 SC 271).

36. The learned counsel submitted that though in the case of KHALID MALIK AND OTHERS V.

FEDERATION OF PAKISTAN AND OTHERS (PLD 1991 KARACHI 1), it was held that if "the grounds stated in the order are distinct and separable, or it is clear on the face of the order which of the grounds are the main grounds on which the opinion of the authority is based then the ground that have no relevance to the preconditions are insignificant can be ignored by the Court, however, in the present case the KHALID MALIK's case is of no avail to AKU, as the impermissible grounds relied upon in the Dean's instant expulsion order on 17-4-2007 are not clearly distinct and separate from the old charges. He contended that the expulsion order dated 17-4-2007 shows that a major part of the Dean's reasoning and conclusion are dedicated to the new charges. Mr. Ahmed went on to argue that as far as AKU is concerned, it is clear from their treatment to Furqan bin Irfan that the simplisitor possession or usage of drugs was not an expulsion worthy offence in their eyes and further that it cannot be said with any degree or certainty, that the plaintiff's alleged aiding and abetting the possession and usage of drugs on campus would have-- -by itself---led the Dean to expel the plaintiff on 17-4-2007 without there having been aggravating factors in the shape of the afore-mentioned new charges. The learned counsel referred to the Dean's statement in his cross- examination in respect of Furqan bin Irfan and contended that the same shows that "it was not actually the use or possession of drugs but the event that occurred afterward that were more troubling for him that Furqan bin Irfan was considered as incidental to the proceedings as he did consume the drugs but left soon 'afterward and, therefore, was not involved". He submitted that in the above backdrop the expulsion order dated 17-4-2007 must fall as a whole inasmuch as the Dean acted in violation of earlier Court orders and the AKU Disciplinary Procedure Rules and the rule of natural justice by placing his decision to expel the plaintiff partly, at least, upon entirely new charges that were not the part of the original enquiry notice and had not been investigated by the Disciplinary Committee.

37. On the other hand, Mr. Makhdoom Ali Khan, the learned counsel for the defendant, submitted that it is incorrect to suggest that the show-cause notice contained allegations, which were not discussed in the first show-cause notice and submitted that the second show-cause notice dated 29-8-2006 simply elaborates the first' show-cause notice in the light of the plaintiff's statement before the Disciplinary Committee and claimed that the so-called new grounds find basis in the admission contained in the said statement. The learned counsel submitted that even if any new charges were raised, the plaintiff cannot raise any objection in that regard because this objection was specifically raised in the contempt application in High Court Appeal No,243 of 2006 and was silently rejected. Mr. Makhdoom Ali Khan submitted that the Court's order dated 13-10-2006 did not direct the Disciplinary Committee to conduct fresh enquiry and that the Dean was directed to hear and decide the matter after providing the material to the plaintiff, which the Dean supplied to the plaintiff, and since no appeal was filed by the plaintiff, the order attained finality. He submitted that neither is there any finding that the second show cause notice dated 29-8-2006 contained new charges, nor any direction to conduct fresh enquiry and the Dean was merely directed to provide the material to the plaintiff, give hearing and pass orders, the plea is, therefore, hit by the doctrine of res judicata. The learned counsel in support of his contention relied upon the case of MESSRS AHMAD KARACHI HALVA MERCHANTS AND AHMAD FOOD PRODUCTS V. THE COMMISSIONER OF INCOME-TAX, SOUTH ZONE, KARACHI (1982 SCMR 489), MESSRS TANK STEEL AND RE-ROLLING MILLS (PVT.) LTD. V. FEDERATION OF PAKISTAN AND OTHERS (PLD 1996 SC 77) and Messrs M.K.B. INDUSTRIES (PVT.) LTD. AND OTHERS V. CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, (Peshawar Electric Supply Corporation Ltd.) (PESCO) (2005 SCMR 699).

38. In MESSRS AHMAD KARACHI HALVA MERCHANTS & AHMAD FOOD PRODUCTS' case (supra) the Hon'ble Supreme Court held that where a ground is taken but not pressed, it should be regarded as having been abarrdoned for all intents and purposes.

39. In the case of MESSRS TANK STEEL (supra), where an appeal filed by the petitioner, against a judgment and decree passed by a Banking Tribunal was dismissed on account of its failure to deposit the decretal amount, as ordered by the a Division Bench of this Court and instead of pursuing its remedy against the said dismissal before the Hon'ble Supreme Court filed a Constitutional petition, the Hon'ble Supreme Court held that the Division Bench, which had disposed of the appeal was competent to resolve the factual as well as legal and constitutional controversies, which had been agitated before the Constitutional Bench of the High Court. Having omitted to pursue the appeal to its logical conclusion on any premise, the Petitioners are debarred to agitate the same controversy ever again on the principle of constructive res judicata.

40. In the case of Messrs M,K.B. INDUSTRIES (PVT.) LTD. (supra), where a question brought before the Hon'ble Supreme Court in an appeal had already been dealt with in an earlier judgment, the Hon'ble Supreme Court held that since such issue between the parties had been decided in the previous round of litigation, therefore, in view of the explanation V of section 11 of C.P.C., it can be held that the same issue between the parties was finally heard and decided, thus the present proceedings being barred by the principle of constructive res judicata are not open for further discussion.

41. The learned counsel submitted that even otherwise the principle that if one ground is unsustainable then the whole case must fall applies to habious corpus cases only and relied upon the judgment in the case of STATE BANK OF PAKISTAN V. FRANKLIN CREDIT AND INVESTMENT COMPANY LTD. (2010 SCMR 121), where the Hon'ble Supreme Court held that if the bad reasons are severable from good ones and are not intertwined or interlinked, an order passed by an administrative authority may not be quashed if otherwise sustainable on remaining valid grounds. It was further observed that the cases involving detention or liberty of citizens fall in a different category.

42. Resuming his arguments Mr. Salahuddin Ahmed contended that the sole reliance of AKU upon the purported recordings of the plaintiff's, so-called admission before the Disciplinary Committee in reaching the decision to expel him, despite the fact that the authenticity of the said recording was disputed, and failing to give the plaintiff an opportunity to have the tapes verified by an expert, vitiate the order. He submitted that the plaintiff has categorically denied making any such admission to the Disciplinary Committee and that his contention was that the said tape-recording was tampered and that he was entitled to access to the master tape, so he could have the same verified by an expert. The plaintiff had made the same request to the Dean on at least three occasions during the disciplinary proceedings through letters dated 22-1-2007, 7-2-2007 and 26- 2-2007, however, on each occasion, the Dean completely sidestepped the issue and never ever acknowledged the plaintiff's request for access to master tape nor gave any reason for not entertaining the request. The learned counsel pointed out that the Dean has attempted, during his examination-in-chief to produce the nine (9) master tapes allegedly containing the entire proceedings before the Disciplinary Committee, as Articles Z-2 to Z-10 inclusive, however, the same have not been exhibited as yet due to objections to their inadmissibility, which are to be decided by this Court now.

43. Mr. Ahmed further submitted that irrespective of the admissibility of these so-called tapes, their production at the time of AKU's evidence is far too late. He submitted that these should have been made accessible to the plaintiff prior to his final hearing with the Dean, so that he could have had verified them and made his submissions to the Dean accordingly. He further submitted that as a result of lack of access to the so-called master tape at the crucial time, the plaintiff's right of defence at the hearing before the Dean was rendered illusory. The learned counsel further submitted that the said nine (9) tapes are inadmissible as evidence and referred to Order XIII Rule 1, C.P.C., which requires that all documentary evidence be produced at the first hearing of the suit accompanied by a list of documents, whereas Order XIII Rule 2 C.P.C. Provides that the documentary evidence not produced in accordance with Order XIII Rule 1, C.P.C. Shall nor be received subsequently unless good cause is shown to the satisfaction of the Court and the Court records reason for doing so. He submitted that the issues in the instant case were framed on 23-2- 2009 and the parties were directed to file their list of witnesses as well as documents within one week. However, AKU deliberately chose not to file any documents or any list of documents although they had filed a list of witnesses and as such the so-called master tapes were not produced at the first hearing of the suit (i.e, the time of framing of issues) nor the same were produced within one week time granted by this Court at the time of framing the issues and has failed to show any good cause for not doing so and as such the documents sought to be belatedly produced are liable to be rejected in terms of Order XIII Rule 2, C.P.C. In support of his contention, the learned counsel relied upon the cases of UZMA AZIZ V. MST. MARYAM DORISLIONS AND ANOTHER (PLD 2006 KARACHI 58) and ARIF HASHWANI AND 3 OTHERS V. SADRUDDIN HASHWANI AND 3 -OTHERS (PLD 2007 KARACHI 448).

44. Mr. Salahuddin Ahmed further submitted that even otherwise the tapes in question are inadmissible. He submitted that it is an axiomatic principle of evidentiary law stemming from the "best evidence rule" and the "rule against hearsay", that the documents can, ordinarily, only be produced in evidence by their maker. He submitted that in relation to tape-recordings this principle has been interpreted to mean that tapes can be admitted in evidence if they are produced by the person, who has recorded the tape's and the said person is in a position to identify the voice on the tapes, and placed reliance upon the case of ISLAMIC REPUBLIC OF PAKISTAN V. ABDUL WALI KHAN M.N.A. (PLD 1976 SC 57), where .The Hon'ble Supreme Court whilst dealing with the admissibility of certain taped recordings of the speeches of the some of the N.A.P. Leaders, held that such recordings are on firmer ground, as they were actual record of the speech as and when it was made, the officers recording the speech was produced and it was him who produced the relevant tape and played the same in the Court. The said officer also identified the voice of the persons speaking, and keeping in view the above the Court further held that there is no reason not to accept the same, and that the said tapes stand on the same footing as the transcripts of speech personally recorded by officers attending the meeting at which the speeches, complained of were delivered.

45. Mr. Ahmed submitted that the present case does not meet the criteria on which the Hon'ble Supreme Court accepted the tapes as evidence in Abdul Wali Khan's case. He submitted that in the present case the so-called master tapes were produced by the Dean, who was admittedly not even present in the Disciplinary Committee's proceedings where the statements were made and recorded. However, as soon as the objection was taken to the production of the tapes by the Dean, the counsel for the AKU sought time to produce further witness. Eventually AKU called two further witnesses i.e, Dr. Anwar Ali Siddiqui (Chairman AKU Disciplinary Committee) and Amyn Ashiq Ali, Legal Manager, AKU. However, surprisingly despite calling these further witnesses, AKU still opted to produce the said tapes through the Dean. Moreover, the so-called master tapes were. Never put before and played to Dr. Anwar Ali Siddiqui during his examinationin-chief and as such Dr. Anwar Ali Siddiqui never stated anywhere in his testimony that the so-called tapes produced by the Dean as Articles Z-2 to Z-10 were actually the tapes recorded by the Disciplinary Committee.

46. The learned counsel pointed out that the above tape-recordings were actually produced by the Dean after the evidence of Dr. Anwar Ali Siddiqui and Amyn Ashiq Ali had concluded and there was never any opportunity to put such tapes before them. He submitted that in order to remove the above mentioned objection as to admissibility of the tapes, it was imperative for A.K.U. To have the said tapes played to and duly identified by the person who was responsible for their recording namely: Dr. Anwar Ali Siddiqui. The learned Counsel contended that the said tapes are also inadmissible due to lack of application of any security procedure to them in order to protect against the tampering, in terms of Article 78-A of the Qanun-e-Shahadat, 1984. He referred to Article 2(e) of the said Order which stipulates that the terms "information system", "electronic documents" and "security procedure" shall bear the meaning given in the Electronic Transactions Ordinance, 2002. He also referred to Article 78-A, which states, "if an electronic document is alleged to be signed or generated wholly or in part by any person, through the use of an information system, and where such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved." The learned counsel also referred to section 2(i), (m) and (p) of the Electronic Transactions Ordinance, 2002, in terms whereof, a tape-recorder constitutes an "information system" and the actual tape constitutes an "electronic document" whereas section 2(x) of the Electronic Transactions Ordinance 2002 defines three alternative meanings of "security procedure". He submitted that the one applicable to the instant case is the procedure which is implemented in the normal course of business and which is reasonably secure and reliable. Mr. Ahmed contended that since the plaintiff had denied that the so-called master tapes, relied upon by the Dean, are the actual tape-recording of his statement before the Disciplinary Committee, the application of security procedure to the tapes must be shown prior to admitting them into evidence. He further submitted that judicial notice may be taken of the fact that most commercially available tapes carry the security tabs which can be broken off to prevent erasures or re-recordings which is the most basic precaution that can be taken to prevent any tampering with the recording. He submitted that considering the seriousness of the disciplinary proceedings which could affect the lives and future of many students, it was incumbent upon the A.K.U. To at least comply this basic security procedure. However, AKU admittedly failed to apply any security, procedure to the tapes. The learned counsel pointed out that none of the affidavits-in- evidence of any of the A.K.U's witness make any mention of application of any security procedure to the tapes. He referred to the cross-examination of Amyn Ashiq Ali, where the said witness has admitted that no test was carried out to ensure that the tapes were not tampered with before they came into his custody and at another place, in response to a question that, apart from natural belief in the integrity of his colleagues, can he personally vouch as to whether the, tapes were not tampered prior to the tapes given in his custody, Mr. Ashiq Ali stated that he firmly believe that the tapes were not tampered prior to coming in his custody. He expressed ignorance as to whether there was any security measure on the master tapes to prevent editing and tampering at the time they came into his custody: The learned counsel then referred to the cross-examination of the Dean where the Dean stated that he has no way of saying that the tapes handed over to him were the master tapes and admitted that he did not check the tapes for security measure to see that the tapes were not tampered with or edited before they were handed over to him. He expressed ignorance that the breaking of the security tabs prevent the tapes from future editing. The Dean had no explanation as to why he refused the plaintiff permission to have the tapes examined by an expert although he was un-sure about the security measure relating to editing and tampering of the tapes, except for that he was sure of genuineness of the tapes on account of the procedure and system that exists at Agha Khan University Hospital to secure material, which were complied with. He also expressed his inability to explain as to why security tabs are intact on some of the tabs and not on the others, but stated that he had faith and belief in the system of Agha Khan University Hospital.

47. The learned counsel submitted that the faith and belief of the Dean and the Legal Manager of A.K.U. Did not make up for the inexcusable failure of their colleagues to break off the security tabs after recording, in order to ensure reasonable safeguard against tampering and thus the said tapes are inadmissible due to non-application of security procedure in terms of Article 78 of the Qanun-eShahadat, 1984. The learned counsel submitted that in their eagerness to bolster the authenticity of the so-called master tapes and demonstrate that all sufficient safeguard to prevent the possibility of any tampering were adopted, AKU's witness had gone to the extent of lying on oath, and referred to the evidence of all the three witnesses of AKU and pointed out the contradictions and inconsistencies between and in the testimonies of these witnesses, in that regard.

48. Mr. Ahmed submitted that admitted absence of any security procedure applied to the so- called master tapes that would prevent the risk of tampering the tapes coupled with contradictory and conflicting testimony of AKU's witnesses regarding the manner in which the said tapes were stored, lead to the irresistible conclusion that the said tape-recordings are too inherently unreliable, as such quite apart from the mandate of Article 78-A of the Qanun-e-Shahadat, 1984, they are inadmissible under "the best evidence" rule. He submitted that even in the best circumstances, courts have been very cautious in admitting tape-recording on the ground that it is too unreliable and too prone to tampering. In support of his contention, the learned counsel relied upon the cases of Hakim Ali Bhatti v. Qazi Abdul Hameed [1986 CLC 1784]; Sumatra Devi v. Calcutta Dying and Bleaching Works [AIR 1976 Calcutta 99]; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [AIR 1975 SC 1788], and Joginder Kaur v. Surjeet Singh [AIR 1985 Punjab 1281.

49. Refuting the allegations of tampering of the tape-recordings of the plaintiff's statement before the Disciplinary Committee, Mr. Makhdoom Ali Khan submitted that the plaintiff has not denied that the cassettes of his statements as recorded before the Disciplinary Committee, contain his voice throughout; he has not denied any specific statement and/or portion thereof as contained in the said cassette. He never filed an application in this court for expert examination of the tape- recordings, nor himself referred the same for opinion, though the tapes were provided to him under cover of letter dated 29th August, 2006, as even the copies/ duplicates can be verified/authenticated. He contended that three cassettes with the recordings of the plaintiff's statement were heard by the plaintiffs' counsel before 15th November, 2006. Mr. Khan further submitted that, the tapes have remained well-secured throughout and were not tampered, has been confirmed by all the three witnesses produced by AKU, who also explained the chain of safe custody of the cassette in an elaborate manner during their evidence. He denied that there is any contradiction between and in the testimonies of the AKU's witnesses regarding the custody of the tapes as, he submitted, when the proceedings of the Disciplinary Committee were pending, the tapes were in the custody of Dr. Anwar Ali Siddiqui and when the D.C. Proceedings concluded they were handed over to the office of the students affairs, within the Dean office, headed by (late) Dr. Arif Ali Zaidi. He submitted that non-production of the cassette by Dr. Anwar Ali Siddiqui has no adverse bearing against the A.K.U. As Dr. Anwar Ali Siddiqui during his testimony has confirmed the authenticity of the tapes. He pointed out that the plaintiff has nowhere claimed that any specific portion of the recording had been cut off or interpolated. The learned counsel submitted that the tape-recorded conversation is now a well-accepted form of "real evidence" which a party may produce to prove a fact in issue. In support of his arguments, the learned counsel relied upon the following cases:--

(i) Rehmat Shah Afridi v. The State PLD 2004 Lah.

829.

(ii) Arif Hashwani v. Sadruddin Hashwan, PLD 2007 Kar 448

(iii) Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57

(iv) Z.B. Bukhari v. B.R. Mehra, AIR 1975 SC 1788

(v) S. Partap Singh v. State of Punjab, AIR 1964 SC 72

50. In relation to the fact that the plaintiff was wrongly shown to have failed in the psychiatry exam, the learned counsel submitted that this happens all the time, students apply for recalculation and their marks are recalculated, increased and decreased. Such also happens all the time in Board exams too.

51. In response to the allegations of discrimination, Mr. Makhdoom Ali Khan submitted that reasonable classification is permissible if based on "intelligible differentia" having rational nexus to the object sought to be achieved by such classification; learned counsel submitted that in the present case powers has been exercised proportionately as the plaintiff was found guilty of aiding and abetting in the procurement, possession and use of contraband drug in AKU and that his actions led to the death of a student, whereas Furgan Bin Irfan's action did not put any one else's life at peril and as such Furgan Bin Irfan and the plaintiff belong to two different classes of persons.

The learned counsel submitted that personal consumption and possession with intention to distribute are internationally recognized as two different offences. The learned counsel submitted that in the USA two offences comprise different element and simple possession carries a lesser penalty.

52. The learned counsel in support of his arguments referred to the following cases : -

(I) I. A. SHARWANI v. GOVERNMENT OF PAKISTAN, 1991 SCMR 1041, (II) ZOHRA V. THE GOVERNMENT OF SINDH, HEALTH DEPARTMENT 1996 PLD Karachi 1 (III) MUHAMMAD NASIR MAHMOOD V. FEDERATION OF PAKISTAN, PLD 2009 SC 107, (IV) MUHAMMAD ILYAS V. ISLAMIA UNIVERSITY, BAHAWALPUR (2000 MLA 228).

53. The impugned order, as noted above, is the third expulsion order passed by AKU against the plaintiff. Through first expulsion order, passed on 4-5-2005, the Dean found the plaintiff guilty of procuring and bringing contraband drugs to AKU Campus. As can be seen from the said order itself, the Dean in passing the order relied upon the recommendations and outcome of the investigation conducted by the Disciplinary Committee, and that the Disciplinary Committee formed its conclusion on the basis of evidence recorded by it, which included statements of the plaintiff as well as other students.

' However, neither was the plaintiff supplied with the copy of the Disciplinary Committee's inquiry report nor with any of the material referred therein.

54. During the process of appeal and review the plaintiff repeatedly sought access to the evidence against him but AKU avoided to supply him any evidence. No evidence was placed before the Court in Suit No 1293 of 2005, filed by the plaintiff against the aforesaid order. A learned single Judge of this Court, through an interim order passed in the aforesaid suit .Held that the refusal to confront the plaintiff with the material against him was prima facie a breach of natural justice, and allowed the plaintiff to continue with his education at AKU pending final decision. High Court Appeal No, 243 of 2006, preferred by AKU against the aforesaid order, was, through a consent order dated 6-7-2006, disposed of, requiring the Dean to give the plaintiff a fresh hearing after providing him copies of the entire material relied upon. However, the Dean still only provided the plaintiff, three audio-cassettes, purportedly containing his statement recorded before the Disciplinary Committee, and avoided to provide the Disciplinary Committee's inquiry report and recommendations, and also did not provide the recordings of the statements of other students and staff, and proceeded to expel the plaintiff for the second -time. Such expulsion order was passed on 12-9-2006. Upon a contempt application, filed by the plaintiff in the above appeal, a learned Division Bench of this Court set aside the second expulsion order through order dated 13- 10-2006. The Division Bench held that Rule 4.3 required the Dean to consider the investigation/ enquiry report and to afford right of hearing to the student vis-a-vis the report and then decide whether to follow the recommendations set out in the report or not and directed the Dean to supply the plaintiff with a complete copy of the enquiry/investigation report along with all the material referred in the report within three (3) days from the date of the order and to also provide him an opportunity of hearing within seven (7) days thereafter, and then pass appropriate order.

The AKU challenged the aforesaid order before the Hon'ble Supreme Court, however, such appeal was dismissed on 13-11-2006 but still the Dean, under cover of his letter dated 15-10-2006 supplied the plaintiff with just the Committee's report. The report reveals that the Disciplinary Committee met seven times for a total of 28 hours and interviewed 12 students as well as some staff members.

The report states that the entire proceedings were recorded verbatim. Through letter dated 29-12- 2006, the plaintiff requested the Dean to supply to him with the recordings of the interviews of the other students and staff members. In response, the Dean, under cover. Of his letter dated 17-1-2007 sent to the plaintiff eight (8) audio-cassettes containing statements of other students and the staff members, made before the Disciplinary Committee, and eight (8) transcripts Containing statements, of those students/staff members, whose statements, as noted in the latter, could not be tape-recorded due to some technical problem. It is important to note here that the Dean at no point in time before the letter dated 17-1-2007, ever mentioned any such technical problem, despite the fact that the plaintiff and AKU had been consistently at odds for nearly two years about AKU's failure to provide material relied upon by the Dean. The Dean's above stance is also belied by the contents of Para. 4 of the affidavit-in-evidence of Dr. Anwar Ali Siddiqui, Chairman of the AKU Disciplinary Committee, wherein it is stated that the entire proceedings were recorded verbatim. It may further be noted that in his cross-examination also Dr. Siddiqui initially stated that the entire proceedings were recorded verbatim, but subsequently said that it may have been possible that the tape-recorders may have malfunctioned on some occasions, however, he does not remember the number of times the tape-records malfunctioned, or the names of persons during whose interview tape-recorder malfunctioned. The said witness also admitted that in para 2 of the report he has stated that the entire proceedings were recorded verbatim, and that a full week after the actual interviews when he submitted the report, he did not mention anything about the tape- recorders malfunctioning. The witness despite ample opportunity during his cross examination was unable to give any satisfactory reason for the contradiction between the enquiry report, which states that the entire proceedings were recorded verbatim, and the subsequent assertion that there was a tape-recorder's malfunction.

55. The perusal of the summaries/ transcripts provided by AKU in lieu of the tape-recordings also falsifies AKU's assertions of tape-recorder's malfunctioning. In that regard, it may be noted that the first portion of the interview of Khizar Syed, a fellow student, is predominantly set out in the form of a summary, but is interspersed at some places with transcripted statement "that are purportedly verbatim reproduction of Khizar's statement to the Disciplinary Committee". However, all of a sudden it changes to a fully verbatim transcript, whereas the interviews of students Furqan bin Irfan, Qazi Asad and staff member Noor Din Shah, have only been set out in the form of summaries.

It is, as rightly submitted by Mr. Ahmed, intriguing to note as to how was verbatim transcript of a large chunk of Khizar Syed's interview prepared without a tape-recording, and moreso for the reason that it has also not been explained as to whether the tape-recorders came off and on intermittently during Khizar Syed's interview. A further question arises that in case some portion of Khizar Syed's interview was recorded, then why was the tape-recording of those portions not supplied to the plaintiff, although the plaintiff through his letter dated 22-1-2007 pointed out the above to the Dean and also the fact that the summaries/partial transcripts of interviews are unsigned, but all of the above question remained unanswered by the Dean, despite ample opportunity during evidence. It is also important to note that Dr. Muhammad Khursheed when confronted with the contradictions as contained in para 6 of his affidavit-in-evidence, whereby he deposed that the entire disciplinary proceedings were recorded verbatim, and the contents of letter dated 17-1-2007, citing technical problem in tape-recording the statements of some students and staff members, failed to give any satisfactory explanation.

56. The Dean's testimony on this point, inspire no confidence. At one stage, he admits that a portion of Khizar's interview has been recorded verbatim, but has no answer as to why tape-recording of the same were not provided to, the Plaintiff. Immediately thereafter he contradicts himself by saying that Khizar's interview was not recorded and subsequently takes refuge by saying that he does not remember. The above lend credence to the contention of Mr. Salahuddin Ahmed that AKU did not wish to disclose the full statement made by some of the students and staff members who are part of the disciplinary proceedings and thus it can, in accordance with the Article 129(g) of the Qanun-e-Shahadat Order, 1984, be justly presumed that the evidence withheld by AKU, would have, if produced been adverse to it. Moreso, in view of the protracted struggle, to the extent of risking being held in contempt and going all the way upto the Supreme Court, simply to avoid handing over the inquiry report and the material referred therein.

57. Although, in the impugned order, the Dean has stated that "for the purpose of my decision I am only relying upon what you have yourself stated and that was duly recorded in your knowledge", however, the plaintiff has categorically denied making any such admission to the Disciplinary Committee and has alleged that the said tape-recording was tampered and that he was entitled to access the master copy of the tape, so that he could have the same verified by an expert. Such request was made by the plaintiff vide letters dated 22-1-2007, 7-2-2007 and 26-2-2007, however, on each occasion, the Dean completely side stepped the issue and never even acknowledged the plaintiff's request for access to master tapes nor gave any reason for not entertaining the request.

The Dean during his cross-examination has admitted that he had not allowed the plaintiff to access the master tape and has only provided him with copies. As a result of lack of access to the so called master tape at the crucial time, the plaintiff's right of defence at the hearing before the Dean was rendered illusory.

58. As regards the belated production of the tape-records it may be noted that issues in the instant case were framed on 23-2-200,9 and the parties were directed to file list of witnesses as well as documents within one week, however, AKU did not file any document or any list of document although they had filed a list of witnesses and as such so-called master tapes were not produced at the first hearing of the suit, nor the same were produced within one week's time granted by this Court at the time of framing of the issues. AKU also failed to show any good cause for not doing so and one of the grounds for objecting to the production of the tapes records by the Dean during his evidence was non-compliance of the provision of Order XIII, Rule 1, C.P.C.

59. The very purpose of Order XIII, Rules 1 & 2, C.P.C. Is to ensure that no party suffers and that if a particular piece of evidence is going to be used by one party then the other party should have adequate notice to prepare refutation of that evidence. However, in the present case, the AKU deliberately chose not to file any documents or list of documents and only filed a list of witnesses, and thus indicated that they would rely on oral evidence alone, and perhaps this was done with the deliberate intention of avoiding any expert examination of the so-called master tapes. Further more AKU's own conduct in this regard ties up quite consistently and has to be seen in the light of the Dean's earlier refusal to let the plaintiff access the so-called master tapes for the purpose of expert verification prior to disciplinary hearing with the Dean. The AKU cannot now be allowed' to gain premium of its wrong doing.

60. There is another reason for the inadmissibility of the tapes as it is an axiomatic principle of evidentiary law stemming from the "best evidence rule" and the "rule against hearsay" that the documents can, ordinarily, only be produced in evidence by their maker and in case of tape- recordings this principle has been interpreted to mean that tapes can be admitted in evidence if they are produced by the person, who has recorded the tapes and the said person is in a position to identify the voice on the tapes.

61. In case of ISLAMIC REPUBLIC OF PAKISTAN V. ABDUL WALI KHAN M.N.A. (PLD 1976 SC 57), the Hon'ble Supreme Court whilst dealing with the admissibility of certain tape-recordings of the speeches of the some of the N.A.P. Leaders, held that such recordings are on firmer ground, as they were actual record of the speech as and when it was made, the officers recording the speech was produced and it was him who produced the relevant tape and played the same in the Court. The said officer also identified the voice of the persons speaking, and keeping in view the above the Court further held that there is no reason not to accept the same, and that the said tapes stand on the same footing as the transcripts of speech personally recorded by officers attending the meeting at which the speeches, complained of were delivered.

62. However, the present case does not meet the criteria on which the Hon'ble Supreme Court accepted the tapes as evidence in Abdul Wali Khan's case. Instead, the tape-recordings were attempted to be produced by the Dean who was admittedly not even present in the Disciplinary Committee's proceedings where the statements were made and recorded and as soon as the objection was taken to the production of the tapes by the Dean, the counsel for the AKU sought time to produce further witness. Eventually AKU called two further witnesses i.e, Dr. Anwar Ali Siddiqui (Chairman AKU Disciplinary Committee) and Amyn Ashiq Ali, Legal Manager, AKU.

However, surprisingly despite calling these further witnesses, AKU still opted to produce the said tapes through the Dean. Moreover, the so-called master tapes were never put before and played to Dr. Anwar All Siddiqui during his examination-in-chief and as such Dr. Anwar Ali Siddiqui never stated anywhere in his testimony that the so-called tapes produced by the Dean as Article Z-2 to Z-10 were actually the tapes recorded by the Disciplinary Committee.

63. The above tape-recordings were actually produced by the Dean after the evidence of Dr. Anwar Ali Siddiqui and Amyn Ashiq Ali has concluded and there was never any opportunity to put such tapes before them. In order to remove the above mentioned objection as to admissibility of the tapes, it was imperative for AKU to have the said tapes played to and duly identified by the person who was responsible for their recording namely: Dr. Anwar Ali Siddiqui but such was not done. The said tapes are also inadmissible due to lack of application of any security procedure to them in order to protect against tampering in terms of Article 78-A of the Qanun-e-Shahadat, 1984, which requires that if an electronic document is alleged to be signed or generated wholly or in part by any person, through the use of an information system, and such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved.

The relevant security procedures as prescribed by section 2(x) of the Electronic Transactions Ordinance, 2002 are as follows:-

(x) "security procedure" means a procedure which:

(i) is agreed between parties;

(ii) is implemented in the normal course by a business and which is reasonably secure and reliable; or

(iii) in relation to a certificate issued by a certification service provider, is specified in its certification practice statement; for establishing the authenticity or integrity, or both, of any electronic document, which may require the use of algorithms or codes, identifying words and numbers, encryption, answer back or acknowledgment procedures, software, hardware or similar security devices."

' And the one applicable to the present case would be as prescribed at (ii) above. Since the plaintiff has denied the authenticity of the tape-recording of his statement it was imperative for the AKU to have shown application of the above security procedure to the tapes prior to admitting them into evidence but AKU failed to do so. It even failed to break the security tabs to prevent eraser or re- recording which is the most basic precaution that can be taken to prevent any tampering. In fact none of the affidavit-in-evidence of the AKU's witnesses make any mention of application of any security procedure to the tapes. In his cross-examination Amyn Ashiq Ali admitted that no test was carried out to ensure that the tapes were not tampered with before they came into his custody.

Whereas the Dean during his cross-examination stated that he has no way of saying that the tapes handed over to him were the master tapes. He admitted having not checked the tapes for security measure to see that the tapes were not tampered with or edited before they were handed over to him. The Dean had no explanation as to why he refused the plaintiff permission to have the tapes examined by an expert although he was unsure about the security measure relating to editing and tampering of the tapes, except for that he was sure of genuineness of the tapes on account of procedure and system that exists at Agha Khan University Hospital to secure material which was complied with. Here it may be mentioned that none of the AKU's witnesses even describe as to what was the so-called system that allegedly existed at the AKU. The faith and belief of the Dean and the Legal Manager of AKU does not make up for the inexcusable failure of their colleagues to brake off the security tabs of the tapes after recording, in order to ensure reasonable safeguard against tampering, and thus the said tapes are inadmissible also due to non- application of security procedure in terms of Article 78 of the Qanun-e-Shahadat, 1984.

64. On the one hand Dr. Anwar Ali Siddiqui in his affidavit in evidence deposed that after conclusion of the Disciplinary Committee's proceedings, the master tapes were handed over to Dr. Arif Ali Zaidi, who kept them in a safe deposit within the office of student affairs and that Dr. Arif Ali Zaidi kept the key in his personal custody. However on the other, during his cross-examination Dr. Anwar Ali Siddiqui admitted that after he handed over the tapes he did not keep himself abreast of what happened to the report and the tapes and further that he did not know how and how long Dr. Arif Ali Zaidi kept the tapes. It is also important to mention here that initial objection to the production of the tapes by the Dean included the objection that the Dean was personally unaware of the manner in which the tapes had been stored. In order to cover up this lacuna Dr. Aymen Ashiq Ali in his affidavit in evidence stated that the office of the student affairs had handed over the custody of tapes to him in the year 2005 and he kept them under lock and key in his drawer until such time as he released them to the Dean for the purpose of deposition in the present case. During his cross- examination Dr. Aymen Ashiq Ali admitted that he was present when objection to the Dean producing the tapes had been taken and his affidavit-in-evidence was exhibited /sworn after that objection, he further admitted that he has previously sworn another affidavit in the case, wherein he had never mentioned that custody of tapes had been handed over to him or that he had kept the same in lock and keys. The Dean completely controverted Amyn Ashiq Ali's testimony that the said tapes had been handed over to Amyn Ashiq All in 2005 and that they remained with him until given to the Dean for the purpose of deposition in the case. He stated that the tapes had actually remained with the office of the student affairs until the Registrar, Lou Arianous, handed those over to the Dean for the purpose of deposition in this case. The admitted absence of any security procedure applied to the so-called master tapes that would prevent the risk of tampering the tapes with contradicting and conflicting testimony of AKU's witnesses regarding the manner in which the said tapes were stored, lead to the irresistible conclusion that the said tape-recordings are too unreliable. As such quite apart from the mandate of Article 78-A of the Qanun-e-Shahadat, 1984, they are inadmissible under "the best evidence" rule. Even in the best circumstances, courts have been very cautious in admitting tapes record on the ground that it is too unreliable and too prone to tampering.

65. In Hakim Ali Bhatti v. Qazi Abdul Hameed (1986 CLC 1784), a learned Single Judge of this Court, whilst quoting a passage from the decision of the High Court of judiciary in hopes case 1960's Scott Law Times 264, to the effect that audio tape can be admitted as evidence, provided accuracy of the recording can be proved, and the voice recorded properly identified, and that such evidence should always be regarded with some caution and assessed in the light of the circumstances of each case and refused to admit the tape-recorded statement and its transcripts as evidence for the reason inter alia, that the tape-record was prepared and preserved by the nephew of the petitioner who was not an independent person, the transcript from the tape-record was not prepared under independent supervision and control and the witness who prepared the tape- record stated in his affidavit that he handed over the cassette or tape-record to the petitioner. The tape-record was not annexed to the petition but was produced before the Court by the witness himself, the voice of the person alleged to be speaking was not duly identified by the maker of the record or by others who knew it. The other essential prerequisites for admission of the tape- recording as evidence as spelt out by the learned Judge, and which perhaps were not followed in that case, are that accuracy of words actually recorded had to be proved and satisfactory evidence, direct or circumstantial had to be there, so as to rule-out possibilities of tampering with the record. It was noted that it was not apart of the routine duties of the witness who had made the tape-record but it was actually made for the purpose of laying a trap to produce evidence. The first respondent disputed that the tape-recorded voice was his, and stated that there had been interpolation in the record.

66. In Sumitra Debi Gour v. Calcutta Dyeing and Bleaching Works (AIR 1976 Calcutta 99), the question of admissibility of tape-record as evidence was dealt, as under:-- "In my view, before any court can accept the evidence of tape-record, the court must carefully consider the genuineness of the tape before it is accepted. Usually, as it is expected to be, the tape-recording of the voice is done without the knowledge and consent of the person concerned and very often he is being trapped unknowingly into it. Therefore, anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the court before it is admitted and accepted. After all, ventriloquism is not very uncommon and before any court can rely on a tape-record, the court must carefully guard himself against all these possible tampering and manufacturing and should look for independent corroboration and intrinsic evidence before he relies on the tape. The court should be cautious to accept the testimony of tape-recording and should reject unless there is further independent and reliable corroboration."

67. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (AIR 1975 SC 1788), the Supreme Court of India prescribed the following pre-conditions for the admissibility of tape-recording as evidence:--

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.

' And thereafter proceeded to hold that the High Court had rightly relied upon the tape-recorded reproductions of the appellants speeches on the grounds that the tape-records were found to be reliable and authentic by the High Court for the reasons, firstly; the tape-records had been prepared and preserved solely by an independent authority, the police, and not by a party to the case; secondly, the transcripts from the tape-records shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect; and thirdly, the police had made the tape-records as part of its routine duties in relation to election speeches and not for the purposes of laying any trap to procure evidence and that the evidence of the makers of the transcripts was there and it was certainly corroborative, as much as it only goes to confirm what the tape-records contained. The tape- records were primary evidence of what was recorded. It was further held that the transcripts could be used to show what the transcriber found recorded there at the time of the transcription, which is operated as a check against tampering and that they have been rightly used by the High Court only as corroborative evidence. It was noted that full shorthand transcripts was made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory.

68. In Joginder Kaur v. Surjeet Singh (AIR 1985 Punjab 129), it is held that the tape-recorded conversation is admissible as evidence provided that the identification of the voice and the accuracy of the conversation is proved by eliminating the possibility of erasing the recorded tape.

It is observed that one of the features of Magnetic tape-recording is the ability to erase and reuse the recorded medium because of this facility of erasure and reuse, the evidence must be received with caution and that the court must be satisfied beyond reasonable doubt that the record has not been tampered with. It is further observed in that case that since the voice had not been compared with that' of the appellant, thus it cannot be held beyond doubt that the voice recorded is that of the appellant and not of an imposter.

69. In Rehmat Shah Afridi v. The State, PLD 2004 Lahore 829, copies of the audio/video tapes, duly delivered to the appellant at the time of delivery of statements of prosecution witnesses under section 161, Cr.P.C. And duly exhibited, was placed during the trial as also before the Division Bench, and it was never challenged that the person on the video tape was not the appellant but the learned counsel for the appellant contended that the voice was dubbed. However, admittedly, during trial or in the appeal, appellant or his counsel did not make any request for sonographic test of the voice in question. In corroboration of the video and audio tapes, their transcripts were also placed on record by the prosecution and were exhibited. It was held that the tape-recorded conversation can be proved by the testimony of person who was part of the conversation or who recorded the conversation, or even transcripts were considered as proof of conversation.

70. It may, however, be noted that the cited case was a case registered and tried under the Control of Narcotic Substances Act, 1997, and the recovery of 18 Kgs Charas made from the Diggi of the car, that was being driven by the accused/appellant, which diggi was opened by the accused/ appellant himself, was proved beyond any doubt, whereas, section 29 of the said Act raises a presumption in law that accused has committed an offence if he is found in possession of any narcotics substance.

71. In Arif Hashwani v. Sadruddin Hashwani, PLD 2007 Karachi 448, it has been held that the tape- record cassettes are admissible piece of evidence but while accepting the same extra care is to be taken to discover and satisfy that the statement is of the person alleged and there is no tampering in the recorded statements.

72. The limited question which came to be addressed by the Court in the cited case was as to whether the tape-record may be allowed to be played to confront the defendants witness with their previous statements. The tape-recording before the Court in that case had been examined by forensic expert witness, who had undergone lengthy cross-examination in respect of the authenticity of the cassettes. The plaintiff had also produced the transcripts of the recording.

However, the court desisted from delving into the question as to whether the cassettes were admissible as evidence.

73. It was observed by the Court that what plaintiff wants, by playing cassettes during the cross- examination of the defendants witness, is to contradict him with his previous statement only, and it is for the defendant to make appropriate reply in regard to statement recorded and perhaps thereafter in the light of the reply of the defendant the court can decide to what extent statement can be relied upon, keeping in view the Forensic Expert's testimony.

74. In the case of Laxmandas v. Deep, AIR 1974 Rajhistan 79, it was held that the tape-recorded conversation be, placed at the earliest opportunity.

75. In Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57, the tape-records of the speeches of some of N.A.P. Leaders were accepted as evidence as the same was found to be actual record of the speeches as and when made. The officer recording the speeches had been produced. He has produced the relevant tapes and the same were played in the Court. The officer concerned had identified the voice of the person speaking and it was held that the said tape- recording stands on the same footing as the transcripts of the speeches personally recorded by officers attending the meeting at which the speeches complained of were delivered.

76. The essential prerequisites, as prescribed by the above judgments for the admissibility of tape- recording as evidence, are that accuracy of the recording has to be proved, the voice recorded, properly identified, the Court must consider the genuineness of the tape before it is accepted, and must guard itself against all possible tampering and manufacturing, and should also look for independent corroboration and intrinsic evidence before it relies on the tape. The voice of the person alleged to be speaking must be duly identified by the maker of the record, or by others who know it. Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence direct or circumstantial has to be there so as to rule out possibilities of tampering with the record, eliminating erasing of the recorded tape. The Court must be satisfied beyond reasonable that the record has not been tampered with. The voice must be compared with that of the appellant. However, as discussed herein before the above prescription has not been followed by the appellant in the instant case and the tape-recording do not meet the criteria, as noted above, and cannot, therefore, be admitted as evidence.

77. As regards the issue of fresh charges/grounds, it may be noted that the initial inquiry notice dated 9-12-2004 issued to the plaintiff mentions his purported involvements in possession and use of drug on campus. The first expulsion order dated 4-5-2005 found the plaintiff guilty of aiding and abetting the possession of drugs on campus. Para. 2.1 of the Disciplinary Committee's inquiry report mentions that the sole purpose of the inquiry was to investigate the usage and possession of drugs on campus. The Division Bench's consent order dated 6-7-2006 in HCA No, 243 of 2006 left the Dean "at liberty to pass fresh orders after affording respondent opportunity of hearing and after providing him copies of the entire material relied upon." Thereafter the Dean passed second expulsion order, which also was set aside by the learned Division Bench, vide its order dated 13-10-2006, directing the Dean to provide the plaintiff "complete copy of the inquiry/ investigation report along with all the material referred in the report within three days and provide him an opportunity of hearing within seven days thereafter, and then pass an appropriate order." The order was upheld by the Hon'ble Supreme Court with an observation that the proceedings before domestic Tribunal are not immense from the rule of natural justice and order passed by such Tribunal without adhering to this rule is coram non judice. However, through letter dated 15-12-2006, addressed to the plaintiff, the Dean expressed his intention to hear the plaintiff in relation to all the matters set out in his letter dated 29-8-2006. The letter dated 29- 8-2006 had raised a host of new charges against the plaintiff in addition to the previous charges, which new charges included "being present when the drugs were consumed, failing to prevent or stop consumption/use of drugs, failing to report the consumption of the same not reporting the critical condition of a fellow student failing to disclose the fact to the hospital regarding Asad Aftab's condition and health, supressing and concealing material information, showing complete disregard for the safety of others and spending the night of September 15-16, 2004 in the hostel without permission". The allegation of being present when drugs were consumed and failing to stop or report the . Same is an entirely different charge from aiding and abetting, the possession and use of drugs, as the latter is an act of commission while the former is an act of omission, and as rightly submitted by Mr. Ahmed, it is doubtful whether the same even constitutes misconduct under the AKU Disciplinary Procedure Rules, and the charge relating to Asad Aftab is of entirely different nature as is the charge relating to hostel stay without permission. However, the Dean's third expulsion order dated 17-4-2007 finds the plaintiff guilty of the Old charge as well as of all the new charges and then proceeds, to expel the plaintiff. It may be noted that when the Dean first raised these new charges through his letter dated 29-8-2006, the plaintiff had responded vide letter dated 8-9-2006, expressly pointing out that these new charges were never raised before, and that under rule 4.3 of the AKU Disciplinary Procedure Rules, if fresh charges of serious nature were being raised then Disciplinary Committee should be directed to hold an investigation for these charges, as such the plaintiff was entitled to, firstly, participate in the fresh investigation to be conducted by the Disciplinary Committee and, thereafter, to a copy of the committee's enquiry report. For the Dean to hold a hearing and pass any order without any prior investigation by the Disciplinary Committee, without providing the plaintiff with a copy of the enquiry report, is not only a violation of the AKU Disciplinary Procedure Rules, but also of the consent order dated 6-7-2006 passed in High Court Appeal No,243 of 2006. However, the Dean ignored the request of the plaintiff, and in his cross-examination the Dean admitted that his third expulsion order found the plaintiff guilty on both, the old as well as new charges.

78. There is a string of judgments to the effect that where the authority takes a decision on several grounds and even if one of these grounds is subsequently proved to be defective in law or facts, the order would fall down wholly. Although, in KHALID MALIK's case (supra), it was held that if the several grounds given in the order are distinct and severable and the order could be justified on some of such grounds the court would uphold the order rather declaring it as unconstitutional on account of presence of other irrelevant and insignificant independent reasons/ grounds in the order and so also in the case of State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. (2010 SCMR 121), it was held that if the bad reasons are severable from the good one's and are not intertwined or interlinked, an order passed by an administrative authority may not be quashed if otherwise sustainable on remaining valid grounds and that the case involving detention or liberty of citizens fall in a different category. However, in the impugned expulsion order the grounds relied upon by the Dean are not clearly distinct and separable from the old charges, as the old charges were, abetting and adding the possession and usage of drugs on campus, whereas the new charges are being "present when the drugs were consumed, failing to prevent or stop consumption/use of drugs and/or failing to report the consumption of the same not reporting the critical condition of a fellow student .., failing to disclose the fact to the hospital regarding Asad Aftab's condition and health, supressing and concealing material information, showing complete disregard for the safety of others, and spending the night of September 15-16, 2004 in the hostel without permission. Though the new charges are different, but as can be seen clearly, the same are in relation to the event that took place over the course of the same period and it can certainly be said that the new set of charges were not inconsequential or insignificant, and/or that the Dean's decision to expel the Plaintiff is predominantly based upon the old charges, as the perusal of the impugned expulsion order would clearly show that a major part of the Dean's reasoning and conclusion are dedicated to the new charges. Furthermore it is clear from the AKU's treatment of Furqan bin Irfan, that Simpliciter possession or usage of drugs was not an expulsion worthy offence in their eyes, and further that it cannot be said with any degree or certainty, that the plaintiff's alleged adding and abetting the possession and usage of drugs on campus would have by itself led the Dean to expel the plaintiff on 17-4-2007 without there having been aggravating factors in the shape of the afore-mentioned new charges. In this regard reference may be made to the Dean's statement in his cross-examination in respect of Furqan bin Irfan where he stated that "it was not actually use or possession of drugs but the event that occurred afterward that were more troubling for him, and that Furqan bin Irfan was considered as incidental to the proceedings as he did consume the drugs but left soon afterward and, therefore, was not involved".

79. Mr. Makhdoom Ali Khan's endeavour to justify the Dean's reliance on, the new charges on the ground that the same finds basis in the admission contained in the plaintiff's statement, also is of no avail, for the reason that, as held in the earlier portion of this order, the tape-records containing such statement are not admissible in evidence. The argument, as raised by Mr. Makhdoom Ali Khan that since the Court, through order dated 13-10-2006, did not direct the Disciplinary Committee to conduct fresh inquiry and that the Dean was directed to hear and decide the matter after providing the material to the plaintiff, which the Dean supplied to the plaintiff and further that since there is neither any finding that the show-cause notice dated 29-8-2006 contains new charges nor any direction to conduct fresh inquiry, the objection regarding the fresh charges is hit by the doctrine of res judicata, is wholly misconceived and untenable. In this regard it may be recalled that through the consent order, passed by a Division Bench in AKU's appeal on 6-7-2006, the Dean was left at liberty to pass fresh orders, affording the respondent opportunity of hearing and providing him copies of entire material relied upon by the Dean, and that by that time no fresh/new allegations were levelled against the plaintiff. However, since as noted earlier, the Dean proceeded to pass the second expulsion order, without complying with the order dated 6-7-2006, the plaintiff was constrained to file an application for initiating contempt proceedings against the Dean, for committing contempt of Court "as he has wilfully and defiantly violated the order dated 6-7-2006, passed by this Hon'ble Court by wrongfully expelling the respondent on 12-9-2006 and passed such further/additional orders, as may be necessary in the interest of justice." Indeed it is true that the plaintiff in his affidavit filed in support of the said application has mentioned that letter dated 29-8-2006 contains fresh /new charges. However, the matter directly and substantially in issue before the Division Bench, was as to whether order dated 6-7-2006 has been wilfully violated or not. The above contempt application was disposed of by the Division Bench through order dated 13-10-2006. The Division Bench in the aforesaid order, whilst, inter alia, observing that it is clear from the plain reading of Rule 4.3 of the Disciplinary Procedure Rules, that where investigation is ordered, as was done in the present case, the action is essentially required to be taken after considering such report and after providing a copy of the 'report to the accused, held that the order has been passed in violation of the consent order, and that the order is also violative of Rule 4.3 of the Disciplinary Procedure Rules, and proceeded to set aside the order dated 12-9- 2006 with direction to the Dean to supply to the plaintiff a complete copy of the inquiry/ investigation report along with all material referred in the report within three days from the date of the order and to provide to him an opportunity of hearing within seven days thereafter, and then pass an appropriate order, as noted earlier, the Hon'ble Supreme Court through order dated 3-11-2006, whilst upholding the above orders of the Division Bench held the expulsion order as coram non judice, for lack of adherence to the rule of natural justice.

80. From the foregoing it can be clearly seen that firstly, as noted earlier, the ,question pertaining to the new/ fresh charges was not a matter substantially and directly in issue before the Division Bench in its contempt jurisdiction. The issue was as to whether the order dated 6-7-2006 has been wilfully violated by the Dean secondly. As rightly submitted by Mr. Ahmed, neither order dated 13- 10-2006, nor dated 6-7-2006, allowed/required the AKU to raise fresh/new grounds/ allegations. On the contrary the order required the Dean, inter alia, provide the plaintiff complete copies of the inquiry/ investigation report along with all material referred in the report and to pass appropriate orders after hearing. As noted in the inquiry/investigation report itself the sole purpose of the investigatory proceedings was to establish the facts that could prove or disprove the charges brought against the students in connection with the alleged, possession and use of drugs on campus and even the show-cause notice issued to the plaintiff was in respect of the aforesaid charges only and as noted above, the fresh/new charges were raised against the plaintiff as late as on 29-8-2006 and, therefore, it is incorrect to say that the plea in respect of fresh/new charges is not available to the plaintiff and/or is hit by the doctrine of res judicata. In any event, it has been held vide order dated 13-10-2006 that the impugned order is violative of Rule 4.3 of the Disciplinary Procedure Rules and also of rules of natural justice and the Dean was directed to pass an appropriate order. Therefore, it cannot be successfully pleaded that the Dean could have lawfully relied for his decision on the new/fresh charges, such being violative of Rule 4.3 and also of the rules of natural justice, therefore, the order is bad also for the reason of the Dean's reliance on the new/fresh grounds. Since the impugned order has been passed purportedly in pursuance of order dated 13-10-2006, which required the Dean to pass an appropriate order, and it hardly needs any mention that an order passed in violation of the relevant rules is not an appropriate order, the impugned order gave a fresh cause of action to the plaintiff for filing the present suit, also on the ground of the Dean's reliance on fresh/new charges.

81. Apart from the unsustainability of the impugned order for the reasons and on the grounds as discussed/found herein before, and even if reliance is placed on the purported transcript of the purported tape-recording of the plaintiff's statement before the Disciplinary Committee, the impugned order would still be found to the unjust, unfair, grossly disproportionate. The perusal of the said purported transcript would show that neither the plaintiff ever used any drugs nor did he plan to purchase and/or to bring the drug to the campus. The plaintiff also did not purchase the drug and further that he had no intention and/or motive to do so. In fact on the fateful day it was Asad Aftab who invited the plaintiff for dinner, while the plaintiff was in an operation theatre at A.O.

Clinic and that the plaintiff expressed his inability, as he had already started his elective and that even upon insistence of Asad Aftab, the plaintiff refused and explained that his consultant will not allow him to leave, and further that before calling the plaintiff Asad Aftab spoke to two other fellow students, namely Rashid and Ali Abbas, but Rashid was leaving that day, and Ali Abbas told Asad that he then did not have a conveyance. The plaintiff during his statement was repeatedly asked as to whether he was in fact being asked to accompany for dinner, and each time he categorically stated that it was for dinner. The plaintiff further stated that he was told that they shall be going for "Karahi" at Super Highway and then the plaintiff reluctantly agreed to go but told Asad Aftab that since he is using his aunt's car and has to return the car, they shall go quickly and come back soon, and it was only after the plaintiff reached the AKU campus that Asad Aftab told him that they are not going for dinner, but to buy something, and upon the plaintiff's query Asad Aftab explained to him that since their exams were over they just want to "chill out" and further that initially the plaintiff thought Asad Aftab was joking and asked him to bring the other friends who were supposed to go, so that they may proceed for the dinner as he has to return to work. The purported statement further reveals that initially the plaintiff refused to go, but Asad Aftab became emotional and told the plaintiff that since the plaintiff is a Karachiite and has a car, he is behaving the way he behaved. The plaintiff still told Asad that it's not right and expressed his anger and threw the keys at him and told him to take the car wherever, but to come back soon as he had to return the car to his aunt. Asad Aftab retorted and told that he was being rude and selfish and since realizing that he has misbehaved the plaintiff said sorry, but insisted that it's not right. The plaintiff also did not know that Asad Aftab has been previously involved in purchasing and using drugs. He denied ever having taken any drugs. The plaintiff also stated that he has been donating blood regularly and that in order to prove that he has not taken any drug ever, had, during the in-house investigation, offered to have his blood tested anytime. He stated that it was quite shocking for him when Asad Aftab told him that he is going to buy drugs and that he has already used a couple of things so the plaintiff should not bother. It appears that the plaintiff was under moral obligation of Asad Aftab as he has in his purported statement also stated that Asad Aftab has taught him "CHS". The plaintiff also stated that though he was on the driving seat he did not know where exactly were they going and asked.

Asad Aftab to drive as he knew the location. He further stated that he was frightened to see police men on the way but Asad Aftab told him that their fellow students, namely, Malik and Murtaza were waiting for them and that what explanation they shall give them. At another place the plaintiff stated that he only agreed to accompany Asad Aftab when he told him that it will take 15-20 minutes and told Asad Aftab that he will go only if they will come back soon as he has to return the car, to which, Asad Aftab agreed. To a question the plaintiff replied that since he was told they are going for dinner, he informed his aunt accordingly. In response to a question as to whether it was just friendship that he was keeping. The plaintiff replied that there is schism between Karachiite and the hostelite and the Karachiite are not liked by the hostelries and there is a feeling that Karachiites do not mingle with the hostelries and are perceived as selfish and it was in order to remove such perception and feeling that he agreed to accompany Asad Aftab. The plaintiff also informed the Committee that he has done his schooling at BVS Parsi High School and his Intermediate from Adamjee Science College. He disclosed that the payment for the drugs was made by Asad Aftab. It can also be seen that at the time when they went to the place he was upset and nervous, as he has stated that his heart was thumping and he was looking here and there and was worried if God forbid somebody catches them they will be in deep trouble and as to what explanation they shall give to their parents. The plaintiff has also denied being involved in such episode earlier. He stated that though he has seen people taking drug in concerts but had never been a part of it. He explained that when he bagged leave, Asad Aftab told him that "hum nashay mein honge to koi hamein sambhalnay wala to hona chahiye." and that he replied that Qazi (another fellow student) was there to look after them but Asad Aftab insisted that they would be four persons and it will not be possible for Qazi but the plaintiff explained that he had to return the car and also has to go for elective the next day, but Asad Aftab insisted and asked him to stay for some time and told the plaintiff that his car shall be dropped by Malik and Murtaza and that the plaintiff was thus so compelled to stay on. At another place he stated that nobody had the idea that such a drastic third is going to happen. In reply to another question he reiterated that he wanted to eliminate the Karachiite versus Hostelries situation. He also expressed his remorse by saying that he know that it was immoral and wrong. He further stated that he als tried to prevent Asad Aftab from taking drugs but did not succeed and further that although Asad Aftab forced him to take the drug but he refused. To a question as to what did he tell the people at the hospital, as to where were they going. The plaintiff replied that since the plan was to go for dinner he told the same to the people at the hospital. To another question as to what kept the plaintiff away from using the drug, the plaintiff replied that he don't want to be involved in it ever. To a question as to whether anybody asked him to join, the plaintiff replied that Asad Aftab once did but he refused. At another place the plaintiff insisted that he did not use drug one way or the other. In reply to a question as to when does cocaine goes high, the plaintiff replied that it was for the first time, and they did not know what's going to happen. In response to a question the plaintiff stated that he condemned the act and asked them to stop using it.

82. From the above it can clearly be seen that, the plaintiff did not plan procuring or bringing the drugs at the campus but that he was called to the campus by inviting him for dinner and for that also he agreed reluctantly, and for the reason that no transport was available for Asad Aftab and other friends to go for the dinner and when Asad Aftab told the plaintiff that in fact he is going for purchasing drugs he expressed his anger and refused to go but very reluctantly agreed to drive them. Such was done by the plaintiff after being emotionally blackmailed and under peer pressure, but then also he insisted on coming back soon as he had to return the car which he had borrowed from his aunt and also had to go for his elective at A.O.

Clinic. It is also evident that the plaintiff has never even, consumed any drug and has also not been involved in the purchasing or possession of any drug earlier. It can also be seen that he never intended to stay in the hostel but was compelled to stay on by Asad Aftab and further that he had also attempted to physically prevent Asad Aftab from consuming the drug. In fact it has not even been alleged or stated on behalf of the AKU that the plaintiff ever before indulged either in procuring or possessing any drug and/ or that he has consumed any drug at all. It is also not alleged that the plaintiff ever held the drug. In the above circumstances and more so keeping in view that Furqan bin Irfan, who admittedly was found guilty of actually possessing and using the drug on campus. Was visited with only one year suspension, for the reason that "it was actually the use or possession of drugs but the event that occurred afterward that were mere troubling. . ., that Furqan bin Irfan was considered incidental to the proceedings as he did consume the drug but left soon afterwards and therefore was not involved."

83. In view of the foregoing discussions, I have no hesitation in holding that the Dean's reliance on the purported tape-recorded statement of the plaintiff in rendering the impugned order, whereby the plaintiff has been rusticated, was/is not permissible and that the purported tape-recordings of the proceedings before the Disciplinary Committee are not admissible as evidence in this case. I am also constrained to hold that even in case the purported recordings of the plaintiff's interview before the Disciplinary Committee, sole reliance whereon has been placed by the Dean in passing the impugned order, are considered, such also would not justify rustication of the plaintiff from the University, as such expulsion would still be grossly disproportionate, highly discriminatory, harsh and unfair.

84. Indeed, as observed by Hamood-ur-Rehman, J, in the case of the University of Dacca v. Zakir Ahmed (PLD 1965 SC 90) "the necessity of maintaining discipline in educational institutions or departments, where the maintenance of discipline is essential for the orderly conduct of the institution or department concerned" cannot be denied and the persons in-charge particularly of educational institutions must be given fullest authority to correct those placed in their charge in the same manner a parent or guardian would be able to do", but "the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice", however, it is difficult to accept the contention that they must also be free from the necessity of acting in a manner, which excludes every reasonable possibility of unfair action being taken", such a possibility can only be avoided, "by observing certain formalities, which have been designed to assure the minimum essential principles of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportunity to correct or controvert any relevant statement to his prejudice". Refuting the argument that such interference by Courts of law, with orders passed by educational institutions in the interest of maintenance of discipline would defeat the very purpose for which the institution exists or that it would stultify the powers of the authorities in-charge of educational institution or prevent them from taking any action against the students misconduct, his Lordship observed that "the universities and educational institutions generally armed with abundant powers of disciplinary action against the recalcitrant students and the Courts are, in no way, minded to deprive them of their powers but all that they are entitled to insist upon, in the interest of fairness is that the minimum requirements of fairness must be observed by them before such action is taken, for, it is equally important to remember that unfair action may cause greater harm to the prestige of the head of the educational institutions, who are expected to be in loco parentis to the students and may seriously undermine the authority, which they claim to possess over the students placed in their charge".

85. The plaintiff despite loss of a full one year session on account of the earlier expulsion order passed by the Dean, has completed the five years MBBS Program in 2009-2010 but his Degree has not been awarded, causing a serious setback to his career. The impugned order has also caused immense damage to the plaintiff's reputation as well as mental torture and anguish to him.

However, since during the arguments, the learned counsel for the plaintiff has not pressed for award of damages, I would, in the circumstances, set aside the impugned expulsion order, with direction to the AKU to issue MBBS Degree to the plaintiff with the date of Convocation, forthwith, and to issue him the requisite character certificates and Dean's letter, and generally to perform all such administrative acts, required for the plaintiff to proceed for his further education/ career, expeditiously.