' The petitioner filed a suit for declaration and mandatory Injunction in the Court of Civil Judge-H, Quetta, with the averment that he was student of 4th year of Fazil Tibb-e-Jirahat in Balochistan Tibbia College and he appeared in examination under Roll No,6449 in the year 1989. It is further averred that the petitioner received a notice by Mr.Fateh Muhammad, Acting Controller Examination vide Letter No,1981 dated 2-9-1989 to appear before Examination Committee on 14-9- 1989 at Lahore as Superintendent Annual Examination Centre, Quetta had sent a case regarding use of unfair means as used by the petitioner in Paper No,4 of the Examination. The petitioner, however, in response to the above referred to notice could not appear before the Examination Committee on account of illness and sent an application along with Medical Certificate to Chairman, Examination Committee, but he was rusticated for 3 years from Tibbia College and also declared unsuccessful in Paper No,4. It is also averred that the action was based on mala fides and personal grudge which Hakeem Muhammad Zubair, Vice-President, National Council for Tibb, Islamadad and Principal, Balochistan Tibbia College was having with the brother of petitioner, who was also General Secretary of the Governing Body of the College.
' A declaration was sought as under:-- "It is, therefore, prayed that action of defendant against the plaintiff may kindly be declared as illegal, void and without lawful authority and plaintiff be declared as successful in the examination of 4th year (Final) of Fazil Tibb-e-Jirahat which was held in 1989 and by way of passing mandatory injunction defendants may also be ordered to issue Result Card showing the plaintiff as successful."
2. The above explained position was strenuously controverted by the defendants, who filed a written statement with the submission that the action taken by the Examination Committee could not be challenged by way of civil suit, keeping in view the procedure as laid down under the relevant Regulations. It was also contended that the petitioner never behaved as a good student and he was in habit of using unfair means during the examination and action was also initiated against him in past in this regard. It is further mentioned that two other brothers of the plaintiff had appeared in the examination and one declared as successful, where the other could not qualify the same, hence the question of any mala fide or does not arise.
3. On the basis of pleadings, the following issues were framed by the learned trial Court:--
(1) Whether the plaintiff can challenge while he gives undertaking at the time of filing examination form?
(2) Whether the plaintiff used unfair means in the examination?
(3) Whether the plaintiff is entitled for the relief claimed for?
(4) Relief.
' The petitioner produced three witnesses in addition to the statement of his attorney namely Muhammad Akram, while the respondent produced one witness and statement of attorney of defendant No,3 was also got recorded. The suit was dismissed by the learned trial Court vide judgment and decree dated 28-2-1993 and appeal filed, being aggrieved, met the same fate vide judgment and decree dated 12-8-1993, hence this Revision.
4. It is emphatically urged by Mr.Ejaz Ahmed, Advocate, on behalf of the petitioner that the impugned judgments/decrees are contrary to facts, law and violative of the principle of natural justice, hence liable to be set aside. It is also contended that the Examination Committee was having no material on the basis of which any action could have been taken. It is next contended that the petitioner could not appear on account of his illness, and therefore, the decision made by the Examination Committee was not only one-sided, but arbitrary and capracious. It is further argued that the entire action was based on mala fides and personal grudge and the same was initiated at the behest of Hakeem Muhammad Zubair, the Principal of Tibbia College. It is also pointed out that the learned trial Court could not appreciate the legal and factual position in the light of evidence, as adduced by the petitioner and derived certain conclusion which are based on speculations and conjunctions. It is also argued that .Undue importance has been given to the verdict of Wafaqi Mohtisab-e-Alla, which should have not influenced the Court and it was obligatory at least for the appellate forum to derive an independent conclusion irrespective of the findings of Wafaqi Mohtisab-e-Alla.
5. Mr.Kamran Murtaza appeared on behalf of respondents and argued with vehemence that the plaintiff failed to substantiate his prime contention that the action taken by the Examination Committee was based on mala fides and in violation of the principles of natural justice and equity.
It is further contended that Tibbia College is being governed by Regulation and Bye-laws promulgated in pursuance of Unani, Ayurvedic and Homoepathic Practitioners Act, 1965 (II of 1965) and as such the ordinary Civil Courts have no jurisdiction to deal with such matters. It is also contended that fair opportunity of hearing was afforded to the petitioner. Who failed to appear before the Examination Committee and there was no other alternative available for the Committee but to take action in view of the complaint received regarding use of unfair means. It is also pointed out that the relief as sought by the petitioner cannot be granted by any Civil Court, as he cannot he declared successful in a paper in which unfair means had been used as the matter does not fall within the jurisdiction, ambit of ordinary Civil Courts. It is also mentioned that the appropriate remedies as provided under the relevant rules could not be availed of by the petitioner, as such the impugned orders and decrees being free from any illegality do not call for any interference.
6. I have carefully examined the respective contentions as adduced on behalf of the petitioner and for respondents in the light of relevant provisions of law and available record. I have minutely perused the pleadings of the parties and carefully examined the impugned judgments and decrees passed by the learned trial Court and appellate forum. I have also thrashed out the entire evidence as led by the parties. It transpires from the scrutiny of evidence that reliance has mainly been placed on the certificate issued by Hakeem A Muhammad Shahbaz Kalanoori, Deputy Superintendent and Muhammad Ian Qureshi that no unfair means whatsoever had been used by the petitioner. It is worthy to note that had the abovementioned Deputy Superintendent and Invegilator (been) produced as witnesses, the position would have different. The Certificates issued by them carry a little weight for the reason that they were not subjected to cross-examination as such it cannot be inferred that up to what extent the contents of their certificates could be relied iwon. The authenticity of the contents could only be determined by way of cross-examination as mentioned above. The Invegilator and Deputy Superintendent should have been produced before the Court to substantiate their point of view. The "CERTIFICATES OF INNO CENCE" cannot be considered. It is further to be noted that no affidavits had been filed by Hakeem Muhammad Shahbaz and Muhammad Jan Qureshi and as such their certificates hardly deserve any consideration. I may point out further that the appointment of defendant No, 6 Mr. Nathenial M.Isih Illayas was never challenged as an Invegilator and it was so done after the petitioner was caught hold of while using unfair means. Being a student the petitioner was duty bound to abide by the rules/regulations, as such undertaking was given by him at the time of submissions of Examination Forms. The petitioner was afforded a proper opportunity of hearing vide Letter No, 1981 dated 2-9-1989 to appear before the Examination Committee by whom a complaint was sent regarding use of unfair means, but he failed to appear before the Committee and as such there was no other option but to make a decision. The petitioner could have been appeared to explain his position later on which was not done. The peculiar feature of the case is that no enmity whatsoever has been alleged against Mr.Nathenial.
7. It would be appropriate to mention here at this juncture that Tibb Examinations are being conducted in accordance with "Tibb Examination Regulations, 1986" duly promulgated by the National Council for Tibb, in exercise of powers as conferred upon it under section 7 of the Unani Ayurvedic and Homoeopathic Practitioners Act, 1965 (II of 1965). A comprehensive procedure has been laid down to hold examination and specific functions assigned to "Discipline Committee" and "Examining Body". An appellate forum has also been constituted under Rule 16 of the said Regulation. The petitioner 'could have approached the appellate forum for the redress of his grivances, but instead of that he preferred to file a civil suit, in spite of the availability of efficacious remedy. I am afraid that while exercising jurisdiction under section 115, C.P.C. No direction can be given to an Education Institution which is working within the specified limits as contemplated under the relevant provisions of above referred to Act to declare the petitioner successful in a paper which was never qualified by him and for the reasons as already discussed. The Regulation itself has not been challenged being ultra vires of the fundamental right as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 or unlawful and as such there is no other option but to abide by the provisions of the said Regulation and no interference can be made in the jurisdictional ambit of the "Discipline Committee" or "Examining Body" without any justifiable cause.
8. I have focused my attention to the main contention as adduced that entire action initiated and finalized is based on mala fide and it was so done at the instance of Hakeem Muhammad Zubair, who was having personal grudge and professional rivalry with the brother of petitioner, but it would be interesting to note that action was got initiated by Mr,Nathenial and no enmity whatsoever has been alleged against him and as mentioned above. The fact which must not escape unnoticed is that another brother of petitioner did qualify the same examination from the same institution, which negates the element of personal grudge or bias. The petitioner could not prove the alleged mala fides. It is correct that the verdict of Wafaqi Mohtisab-e-Alla cannot be considered as binding upon the Court, but its value and importance cannot be ignored altogether. I would also like to reproduce here in below the verdict of Wafaqi Mohtisab-e-Alla, who was approached by the petitioner, which is as under:-- "As the allegations made by the complainant have been totally denied by the Agency, it appears that the basic facts were being challenged by the complainant regarding to the records made available, it appears clear that the allegations against the complainant on record were thoroughly considered by the competent authority and punishment as such was awarded strictly according to the regulations. In fact, a lenient view in the case was taken in as such as only one punishment was awarded instead of two, as required under Regulation 15. I have therefore, felt that by affording him an opportunity to defend himself and following the procedure, the Agency has acted according to the rules and the requirements of natural justice and fair play. No maladministration of any type was committed by the Agency and hence, 1 feel that this is not a case in which the complainant has been able to justify his allegations. His complaint is, therefore, rejected and the case treated as having been disposed of accordingly:
9. I am conscious of the fact and as pointed out that verdict of the Wafaqi Mohtisab-e-Alta cannot be equated with that of a judgment of a Court of law, but it has its own significance, which also indicates that a lenient view was taken by the Examination Committee.
10. Apart from that what has been stated above, I do not find any reason to disturb the concurrent findings derived by the trial Court and appellate forum. The impugned judgments and decrees are free from any irregularity, impropriator, illegality and mis exercise of jurisdiction, as such no interference is called for. No Rule, Regulation or Bye-law has been violated by the Discipline Committee and a fair opportunity of hearing was afforded which could not be availed by the petitioner. He did not prefer any appeal as mentioned earlier. No undue interference can be made in the procedure prescribed by an Educational Institute to conduct examination. In this regard I am fortified by the dictum laid down in the following authorities:- ' PLD 1965 SC 90. PLD 1977 SC 69. 1984 SCM R 192. PLD 1981 SC 464.
11. In the light of what has been stated above the Revision Petition is hereby dismissed with no order as to cost.