1. ' FAZAL ILAHI KHAN, J.---This petition for leave to appeal is directed against the judgment of Lahore High Court, Lahore dated 23-4-1994 passed in Writ Petition No, 2098 of 1994 whereby the respondent was entitled to the benefit of average marks in terms of Proviso-I to Regulation 6 of the University Regulation.
2. ' Admittedly respondent appeared in BA, 2nd Annual Examination of 1992 under Roll No, 33442. His result was declared alongwith other candidates but as English Paper A was not traceable and missing, therefore, his result was shown as "later on". When respondent approached the petitioner he was informed that his paper is lost and that lie shall re-appear in the said paper. Respondent, however, relying on Proviso I to Regulation 6 insisted for grant of average marks instead of his reappearance in the said paper which was resisted on the ground that respondent himself can be blamed as the record has been transferred to the waste paper store and at this belated stage the respondent was, not entitled to any other relief.
3. ' The learned High Court, however, held the conduct of the respondent fair as it was for the petitioner to have declared the result and not to shift the responsibility to the respondent.
4. ' For proper understanding of the matter the relevant Regulation is reproduced as under:-- "....If a candidate's paper is lost after having been received by the Superintendent of the Examination Centre or by one of his assistants, and if he passed in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to the approval of the Vice Chancellor, shall be final.
5. "Provided that if an answer book/s received by an Examiner/s is/are lost before or after evaluation average of the marks obtained by the candidate in other rapers in which he has appeared shall be awarded to him in the said paper. The candidate shall, however, have the option either to avail the average of the marks or to reappear in the paper.
6. "Provided further that the benefit of grant of average marks will not be given to candidates in cases Of re-checking of answer-books after declaration of their results, if their answer-book/s is/are lost at the time of re-checking. They will however, have the option to re-appear in the paper/s in the next examination, if otherwise eligible. The candidate will also be allowed to claim refund of fee for re-checking."
7. ' The above envisages three different eventualities in case of loss of examination paper. The first one deals with the loss of paper its receipt by the Superintendent of the Examination Centre or by one of his assistants. The second one when the answer book is received by the examiner and is lost before or after evaluation. The third one when the paper is marked and list prepared by the examiner whereafter paper is lost or at the time of re-checking.
8. There is no material on record to show at what stage the paper was lost. However, it is established that respondent did appear and handed over the paper to the Superintendent otherwise he would have been marked absent or it would have been reported that the answer book was not submitted and in that case he would have been declared failed in the subject. It was, therefore, to be presumed in ordinary course that the paper was lost somewhere at a later stage. And such information could only be furnished by the petitioner. The respondent was rightly found by the learned High Court that he could not be blamed for all this. As such the previous was applicable to the respondent's case.
9. ' The contention of the learned counsel for the petitioner that in CA-422-L/91 and Cr-67-L of 1994 leave was granted by this Court to consider the true import of Regulation 6, is not correct on facts of the case. On perusal of the leave granting order it transpired that those cases are quite distinguishable from the facts of the present case. In one of those cases the answer book was not tendered to the Superintendent of the Centre while in the second case the answer book was marked and tabulation list prepared when the paper was lost. It was in the light of such facts that leave was granted to consider; whether, the respondent in those cases were legally entitled to average marks.
10. ' From the reasons stated above find infirmity in the judgment of the learned High Court and dismissed the petition.