' SAYYAD MAZAHAR ALI AKBAR NAQVI, J.---By means of instant constitutional petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for indulgence of this Court; thereby challenging the declaration (office order) made by Chairman, Punjab Board of Technical Education, Lahore by virtue of which the Diploma of Associate Engineer issued to the petitioner in the year 1975 was cancelled. The prayer made in the constitutional petition is reproduced herein below:-- "It is, therefore, most respectfully prayed that the instant writ petition may kindly be accepted and the impugned order dated 5-12-2012 may kindly be set aside, in the interest of justice.
' It is also prayed that Rule 18 (Chapter. V) of the Rules framed by the Punjab Board of Technical Education may be declared ultra vires and of no effect being inconsistent with The Punjab Board of Technical Education Regulation, 1981 and the West Pakistan Board of Technical Education (Punjab Amendment) Ordinance, 1971.
' Any other relief which' this Honourable Court deems fit and appropriate may also be granted."
' During the pendency of the constitutional petition C.M. No,232/2013 was filed by the petitioner in terms of Order VI, Rule 17 read with section 151, of the Code of Civil Procedure, 1908; wherein the permission was sought for amending the prayer clause of main constitutional petition. As the propriety demanded that the miscellaneous application has to be decided first, therefore, this Court allowed learned counsel for the parties to address their arguments in the petition filed in terms of Order VI, Rule 17, C.P.C.
2. Learned counsel for the petitioner while advancing his arguments submits that the order passed by the. Chairman, Punjab Board of Technical Education, Lahore, qua quashing of diploma of the petitioner while exercising powers under Rule 18,' Chapter V, of the Rules framed by the Punjab Board of Technical Education, is not in accordance with law. Learned counsel vehemently submits that the said power is not vested with the Chairman of the Board and the application of Rule 18 Chapter V has been utilized on wrong premises while exercising authority not vested in such like matters . Further contends that as the main constitutional petition has not been decided as yet, therefore, the miscellaneous application filed by the petitioner is well within time and that would be instrumental in advancing the cause of justice. It is next argued that as the application filed by the petitioner would not change the facet of the main prayer clause, hence the permission to file amended constitutional petition would be in the interest of safe administration of justice. In support of his submissions, learned counsel for the petitioner places reliance on the following dictum of law:- "PLD 1985 Supreme Court 345 Mst. Ghulam Bibi and others v. Sarsa Khan and others 1974 SCMR '181 Mst. Zubeda Begum and another v. Wali Muhammad Khan and 2 others ' PLD 2004 Supreme Court 379 Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others 2008 CLC 946 [Karachi] Ahmed Jamil Ansari v. Messrs AlHogani Securities and Investment Corporation (Pvt.) Limited
3. On the other hand Advocate General vehemently opposes the contentions raised by learned counsel for the petitioner on the ground that if permission for amendment is allowed at a belated stage, it would tantamount to provide an opportunity to fill in the lacunas left while filing the aforesaid constitutional petition. Learned Advocate General further contends that the provisions of Rule 18, Chapter V of the Punjab Board of Technical Education Calendar are fully in consonance with the authority, which were also exercised by the competent authority and at this stage, application filed by the petitioner in terms of Order VI, Rule 17, of the Code of Civil Procedure, 1908, deserves its dismissal.
4. Heard, record perused.
5. There is no denial to this fact that the instant miscellaneous application seeking amendments in the constitutional petition in terms of Order VI, Rule 17 of the C.P.C. Has been moved at a belated stage but at the same time this Court is conscious of the fact that at the time of moving the application, the matter was squarely undecided. Moreover, the provisions of Order VI, Rule 17 of the C.P.C., empower this Court to allow such like prayers for the advancement of cause of justice, which are reproduced hereinbelow for ready reference:- "17. Amendment of pleadings. ---The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
' Admittedly the grounds taken in the miscellaneous application are confined to the contents, as well as, prayer of the petitioner made in the main constitutional petition and these also relate to the same cause of action. Moreover, if contents of the application filed by the petitioner are scrutinized on the touchstone of provisions of ibid Rule reproduced above; it clearly reflects that amendments suggested in the prayer clause would not affect the constitutional petition and relief sought for in any manner. Otherwise the expression in the Rule that the court may at any stage allow application further strengthens mind of the Court that the same can be extended at any time. Moreover, in similar situation, view of august Supreme Court of Pakistan has remained consistent. Guidance in this regard is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Qamar-ud-Din v. Muhammad Din and others (PLD 2001 Supreme Court 518) wherein it was held as under:-- "O. VI. R. I7---Pleadings, amendment of---Scope---Amendment can be allowed at any stage, in such manner and on such terms,' which may be equitable and just for contesting parties--- Reasonable ground, however, has to be shown for exercising jurisdiction under 0. VI, R.17 C.P.C."
' Even otherwise for the sake of arguments it is taken into consideration that it was filed at a belated stage, the learned Law Officer failed to establish that by allowing the application and the amendments proposed therein any prejudice would be caused to either party.
6. While taking analogy from the above dictum of law and arriving at the conclusion that by allowing the amendments, no prejudice shall be caused to either of the parties particularly the fact that the proposed amendments shall not change the facet of the B case, hence this Court is persuaded to accept this miscellaneous application as a consequence whereof, the amendments suggested therein, are allowed, which are directed to be made an integral part of the main petition.
' MAIN CASE 7 . Brief facts of the case arising out of the instant constitutional petition are that the petitioner is an old parliamentarian, who remained elected member of the Provincial, as well as, National Assembly and has enjoyed the portfolio of Provincial, as well as, Federal Minister on various occasions. During the year 2002 after the pronouncement of the Genera/ Elections, Art.8-A of the Conduct of General Elections Order, 2002, was introduced for the first time through which Graduation was set as basic qualification mandatory to contest General Elections either of the Provincial, as well as, National Assembly. As the petitioner had earlier acquired Diploma of Associate Engineer in the year 1975 (equivalent to Intermediate), to meet the mandatory qualification set for the General Elections, he preferred to appear in B.A. And submitted his admission form at Islamia University, Bahawalpur to acquire the degree of Graduation. The admission forms were accompanied by No Objection Certificate, issued by the Punjab Board of Technical Education, Lahore, on 5-9-2001 vide Ref. PBTE/SC-I-2001/3247 in the following terms:- "NO OBJECTION CERTIFICATE ' This is to certify that Mr. Ghalam Sarwar Khan son of Mr. Muhammad Hayat Registration No,GPI/LY/71-563 Roll No,7830 Annual, 1974 has passed the Diploma of Associate Engineer in Mechanical Technology From Govt. Polytechnic Institute, Lyallper and owes no dues to this Board.
' The Board has no objection to his joining College/University for higher studies if otherwise found eligible. Sd/- (ASSISTANT SECRETARY)
CERTIFICATE-I"
' After adopting all requisite requirements, the petitioner filed his nomination papers with the Returning Officer but the same were objected by the contesting candidate. The objections so raised by the opposing candidate were evaluated and the petitioner was declared eligible candidate. Subsequent to that the petitioner moved an application before the Punjab Board of Technical Education, Lahore that the No Objection Certificate was erroneously issued by the Board while incorporating the wrong particulars which was taken up by the Committee under the chair of Secretary, Punjab Board of Technical Education, Lahore and while acceding the request of the petitioner, vide Ref. No,PBTE/SC-I/ 2003/267, dated 21-1-2003, following No Objection Certificate was issued:- "NO OBJECTION CERTIFICATE ' This is to certify that Mr. GHULAM SARWAR KHAN SON OF MR. MUHAMMAD HAYAT KHAN Registration No,PIR/73/ 992, Roll No,8537, 1st Annual 1975 has been passed the Diploma of Associate Engineer in Machine Shop Technology from Govt. College of Technology, Rawalpindi and owes no dues to this Board. The Board has no objection to his joining college/university for higher studies if otherwise found eligible.
' The Registration No,GPI/LY/71-563, Roll No,7830, Session 1974 and the name of institute were errorsly mentioned wrong in our NOC issued vide letter No,PBTE/SC-I/2001-3247 dated 5-9-2001.
The correct particulars are stated in the aforesaid para. S/d (ASSISTANT SECRETARY) CERTIFICATE-I"
' Subsequently the order of the Returning Officer was challenged by the contesting candidate and the matter was adjudicated by an Election Tribunal comprising Tassaduq Hussain Jilani and Abdul Shakoor Paracha, JJ, and while disposing of the petition vide judgment dated 11-9-2002 handed down by his Lordship Mr. Justice Tassaduq Hussain Jilani, J, it was concluded as under:- "13. Before parting with the judgment we would like to add that in Election Appeal No,103(A) of 2002 notwithstanding our moral and normative concerns we refrained from interfering mainly because of the limited jurisdictional aspect, the fact that the Bachelor's Degree in favour of respondent is intact, in the , Punjab Board of Technical Education's result register Ghulam Sarwar's name is mentioned along with other examinees but parentage is not mentioned, the F.A. Certificate filed by the respondent for appearing in B.A. Examination in 1976 has not been placed on record and in deference to the principle of consistency in view of the judgments of Election Tribunal of this Court raising similar question. The issue raised, nevertheless, is serious. We, in the afore-referred circumstances, leave it for resolution by the appropriate forum under the law. The Director Punjab Board of Technical Education, Lahore and the Principal of Government College of Technology, ' Faisalabad are directed to keep the record in safe custody to avoid any tampering and shall make it available to the Vice Chancellor concerned or any other Tribunal/forum if the same is required."
' It also finds mention in the grounds contained in the instant constitutional petition that subsequently one Engineer Muhammad Jameel Malik filed an Election Petition mainly on the ground of contents of the No Objection Certificate, as well as, questioning the authenticity of the result of 6th Semester and during pendency of the Election Petition, the clarification was sought from the Zonal Manager, TEVTA, which was also verified. Moreover, Controller of Examination, Punjab Board of Technical Education, Lahore (Asad Butt) and Controller Examination, Islamia University, Bahawalpur (Muhammad Shafique), joined the proceedings and made their respective statements to the effect that the contents of the diploma were genuine and no tampering whatsoever was committed.
' It was in the year 2012, when the matter was reopened and the documents of the petitioner were referred to the Punjab Board of Technical Education, Lahore, for its verification and in the meeting of the Board, a Probe Committee was constituted to inquire into the matter, which after thorough probe made the following recommendations:-- "The Diplomas, verification letters NOC and Corrigendum issued in favour of Mr. Ghulam Sarwar son of Mr. Muhammad Hayat Khan by the Punjab Board of Technical Education, Lahore are found fabricated and are not liable to be authenticated.
The involvement of the then higher officers/officials in preparation of fabricated record and verification of record is evident and a high power committee may be constituted for initiation of Disciplinary Proceedings.
It is high time to take necessary steps for preservations of the essential record of the Board.
The tampering made in the 6th Semester DAE Exam, 1974 Mechanical Technology against Roll No,7830 may be got rectified."
' The recommendations of the Probe Committee were referred to the Anti-Corruption Establishment, Lahore, and after adopting all codal/ procedural formalities, case FIR No,67, dated 17-10-2012, offence under sections 420, 468, 471, 109, 218, PPC, read with section 5(2) of the Prevention of Corruption Act, 1947, was registered at Police Station Anti-Corruption Establishment, Lahore. Thereafter, Punjab Board of Three-Year Programme of Instructions in 'MECHANICAL Technology' in the Session 1973-75 and the probe committee was constituted vide order dated 11- 5-2009 i,e, after thirty four years There is also no denial to the fact that the Matriculate Certificate and Bachelor Degree issued to the petitioner are not disputed and only result of 4th and 6th Semester has been questioned by the Board/Anti-Corruption Establishment. Moreover, during the pendency of the instant constitutional petition, the relevant original gazette, as well as, tabulation registers were summoned and perused by this Court and prima facie no cutting/over-writing was observed therein.
12. Perusal of record reveals that at the time of filing nomination papers by the petitioner in the General Election 2002, certain objections were raised before the Returning Officer, who vide order dated 1-9-2002 had observed as under:- "As the qualification having been shown by the candidate Ghulam Sarwar Khan of his graduation and of passing the D.A.H. Annual Examination, 1974 in. Mechanical Engineering equivalent to FA has been verified by Islamia University, Bahawalpur and Punjab Board of Technical Education, Lahore respectively while communicating through telefax on the query of this office, so the objection raised by the objector is over ruled as the same has lost its force and substance in it."
' Subsequently, the order of the Returning Officer was challenged through an Election Appeal and the Election Tribunal comprising Tassaduq Hussain Jilani and Abdul Shakoor Paracha, JJ and vide judgment dated 11-9-2002 authored by his Lordship Mr. Justice Tassaduq Hussain Jilani, J, while dismissing the appeal it was concluded as under:-- "13. Before parting with the judgment we would like to add that in Election Appeal No,103(A) of 2002 notwithstanding our moral and normative concerns we refrained from interfering mainly because of the limited jurisdictional aspect, the fact that the Bachelor's Degree in favour of respondent is intact, in the Punjab Board of Technical Education's result register Ghulam Sarwar's name is mentioned along with other examinees but parentage is not mentioned, the F.A. Certificate filed by the respondent for appearing in B.A. Examination in 1976 has not been placed on record and in deference to the principle of consistency in view of the judgments of Election Tribunals of this Court raising similar question. The issue raised, nevertheless, is serious. We, in the afore-referred circumstances, leave it for resolution by the appropriate forum under the law. The Director Punjab Board of Technical Education, Lahore and the Principal of Government College of Technology, Faisalabad are directed to keep the record in safe custody to avoid any tampering and shall make it available to the Vice Chancellor concerned or any other Tribunal/forum if the same is required."
13. It is also an admitted fact that direction issued by virtue of above judgment reported as Ch. Nisar Ali Khan v. Ghulam Sarwar Khan (2003 CLC 442), is still in pipeline as report in terms of Section 173, Cr.P.C. Has not been submitted so far and it was on 9-5-2009 when the Chairman, Punjab Board of Technical Education, Lahore, was summoned by the Principal Secretary to Chief Minister of Punjab, which is also spelled out from the notification dated 11-5-2009 to the following effect:-- "The Chairman, Punjab Board of Technical Education, Lahore was called by the Secretary to Chief Minister, Punjab on 9-3-2009 and placed the documents of results appearance and issuance of DMC/NOC/Diploma and verification letters..."
' Subsequently while exercising powers under Rule 18, Chapter V of the Rules of Punjab Board of Technical Education, Lahore, the Chairman of the Board passed the impugned order. The provisions of supra Chapter are reproduced herein below for ready reference:-- "The Chairman shall have the power to quash the result of a candidate at any time after it has been declared:-
(i) If he has been disqnalified for using unfair means in the examination; or
(ii) If a mistake is found in his result; or
(iii) If it is found that he was not eligible to appear in the examination; or
(iv) For any other reason that may be determined by the Chairman.
' As the matter was reopened on the intervention of the Principal Secretary to Chief Minister, Punjab, who needless to mention must have complied with the direction of political hierarchy, the same speaks volume. Moreover, the letter issued by the Principal Secretary to Chief Minister in such like matters cannot be given any legal authentication. From the above facts particularly when during the course of previous inquiry conducted by the Anti-Corruption Establishment, the proceedings against the petitioner were recommended to be dropped and prima facie de novo inquiry can be termed as some sort of political victimization.
14. There is chain of judgments of the superior courts of the country that as per section 21 of the General Clauses Act, 1897 nevertheless authority passing an order is competent to rescind/recall it, however, the same is not absolute but subject to certain limitations. Moreover, once an institution declares any result, it cannot recall the same having become functus officio. In the case of Miss Afshan Amjad v. Vice-Chancellor, University of the Punjab, Lahore and another (1996 CLC 877), following principle was laid down:- "Once the University declares the result of a given examination, no locus poenitentiae is left to recall the declared result because hereafter the University becomes functus officio and the consequences which flew from a declaration of the result cannot be set at naught "
' Similarly in the case of Khan Zaib and another v. Government of Balochistan, through Chief Secretary and 2 others (2011 PLC (C.S.) 852), the principle of "locus poenitentiae" was elaborated in the following terms:-- ---S. 21---Locus poenitentiae, principle of---Principle of locus poenitentiae was available to the government in order to retrace and undo the wrong order till a decisive step was taken-- Authority that had power to make an order had also the power to undo it, but that was subject to the exception that where the order had taken legal effect; and in presence thereof certain rights had been created in favour of any individual such an order could not be withdrawn or rescinded to the detriment of those rights---"
' The same principle was emphasized in the case of Mir Ghulam Abid Khan v. Pakistan through Secretary and another (2000 CLC 443); where it was held as under:-- "This principle is enshrined in section 21 of the General Clauses Act which unambiguously postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow 'volte face' to the authority."
15. Without prejudice to the outcome of the inquiry carried out by the Anti-Corruption Establishment dated 28-2-2012, that was conducted subsequently and the recommendations of the Probe Committee, admittedly during the course of proceedings carried out by the Punjab Board of Technical Education for quashing the documents of the petitioner, neither the petitioner was served with any show-cause notice nor he was afforded proper opportunity of hearing before passing the impugned order, which is against the universally recognized principle of audi alteram partem, which is considered as part and parcel of every statute irrespective of the fact whether embodied therein or not. It is worth mentioning that in the landmark judgment of august Supreme Court of Pakistan in the case of Pakistan and others v. Public at Large and others (PLD 1987 SC 304), it has been held as under:-- "The narration of the Injunctions of the Qur'an and the Sunnah do establish beyond any shadow of doubt the right to honour and reputation is one of the inviolable rights of man in addition to other valuable rights. Can this be taken away without due process as enjoined by the Qur'an and Sunnah?
' It is clear from various Injunctions of the Qur'an that Adl, Qist and Ihsan are the components of total and complete justice in Islam. It requires not only equal treatment between man and man but also protects the rights of one against unfair treatment."
' It was further held as under:- "When a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing.
' It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and/or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognized as a basic right."
' At another stage it was held that: "And notwithstanding the reality it being question of principle, Allah Almighty has bestowed the right on man to be aware of what he is being punished for. Something can be said about the fact that when made aware, man would have an opportunity of offering an explanation or making a plea of guilty or denial. In other words, there would be an opportunity of making a plea regarding accusation. But mostly the opportunity when availed of would result in the plea of admission as the evidence would be strong and overwhelming."
However, as far as genuineness of the result of 4th and 6th Semester is concerned, the same requires recording of evidence, which cannot be done while exercising constitutional jurisdiction particularly when in earlier inquiry conducted by Muhammad Shah Rukh Niazi, Assistant Director (Investigation), Anti-Corruption Establishment, Lahore Region, Lahore, vide his report dated 28-2- 2012 had concluded as under:- "Since the documents of Ghulam Sarwar respondent remained under discussion regarding their genuineness in the Honourable Lahore High Court Lahore, the matter alleged is learned (governed) by Section 476 read with 195, Cr. P. C. In this view of the matter the enquiry may be consigned to record."
16. In the above scenario as the petitioner has already suffered a lot on account of his non- association in the proceedings conducted by the Punjab Board of Technical Education, Lahore, qua cancelling his result card, which is in sheer negation of fundamental rights especially envisaged in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, and sine qua non for dispensation of natural justice and without full-fledge trial if any findings qua genuineness of the document is rendered at this stage, it would tantamount td double deprivation because certainly it will prejudice the learned trial court as the final adjudication qua genuineness of document is to be conducted during the course of trial after recording the evidence in the spirit of directions passed in the judgment reported as Ch. Nisar Ali Khan v. Ghulam Sarwar Khan (2003 CLC 442), therefore, in order to avoid any deprivation, this aspect is withheld and the impugned office order dated 5-12- 2012 passed by Chairman, Board of Technical Education, Lahore, having been passed against the principles of natural justice is accordingly set aside and while following the observations made in Election Appeal by the Election Tribunal comprising Tassaduq Hussain Jilani and Abdul I Shakoor Paracha, JJ, vide judgment dated 11-9-2002 handed down by his Lordship Mr. Justice Tassaduq Hussain Jilani, J, in order to ascertain the genuineness of the documents the matter is referred to the learned trial court to evaluate the genuineness of the documents with the following directions:- -
(i) As the crime report registered vide FIR No,67, dated 17-10-2012, offence under. Sections 420, 468, 471, 109, 218, P.P.C., read with Section 5(2) of the Prevention of Corruption Act, 1947, Police Station Anti- Corruption Establishment, Lahore, has already been registered against the petitioner, the prosecution is at liberty to investigate the matter while associating the petitioner in the investigation and afterward if during the course of investigation the vires of the crime report are found to be correct, submit report in terms of Section 173, Cr.P.C.
(ii) After submission of challan the learned trial court shall frame the charge and by affording proper opportunity of hearing shall record evidence of both sides in order to ascertain the genuineness of the Diploma of the petitioner and all auxiliary documents including authenticity of the No Objection Certificates in the spirit of order dated 11-9-2002 passed by the Election Tribunal referred to above.
(iii) The learned trial court shall conclude the trial within three months positively and if need be it would be at liberty to conduct proceedings on day-to-day basis.
(iv) The parties are directed to cooperate in smooth conclusion of the trial within the stipulated period.
17. The learned trial court is excepted to conclude the trial by applying its independent judicious mind while appreciating the evidence recorded during the course of trial strictly in accordance with law without being prejudiced from the findings made herein above.
18. Before parting with the order it is observed with great concern that mere initiation of proceedings in any case with the intervention of the political hierarchy is uncalled for, particularly in the case in hand when the same was ordered to be initiated after the elapse of thirty seven years speaks volume as the same is beyond the scope of any provision of law as neither the Chief Minister nor any person on his behalf stands anywhere in the hierarchy of the prosecution.