MUHAMMAD ZAFAR YASIN, J.- The facts giving rise to the present Intra Court Appeal are that the appellant to admission in M-.A. English in Islamia University, Bahawalpur. She appeared as an external candidate in Second Annual Examination 1991 held in August, 1992. She availed usual opportunities and cleared all papers except Paper IV (English Novel) in which she had again failed.
She was refused of another chance to appear in the 2nd Annual Examination, 1994 in this paper.
This way the appellant was constrained to file Constitutional Petition No. 180/95/BWP praying that she was entitled to another chance. The writ petition was contested by the present respondent and was allowed vide judgment dated 24.4.1995. The result was the respondents were directed to accept the admission form of the petitioner immediately without any late fee and issue her Roll number and permit her to appear in the examination.
2. Aggrieved by the judgment dated 24.4.1995, the respondents tiled I. C.A. No. 17/95/BWP. Meanwhile the petitioner took her examination but her result was withheld on the ground that the examination fee had not been deposited by the petitioner. The fact was brought to notice of the Hon'ble Division Bench, seized with the appeal filed by the respondents that the petitioner was exonerated from the payment of the late fee vide order dated 20.4.1995. Their Lordships passed following interim order on 6.2.1996.
"The result of the respondent was not declared by the appellant and was kept as "R.L." on the ground that the Examination fee had not been deposited. We are constrained to remark that the attitude of the appellant was not fair and amounts, in the circumstances of the' case, to mala fide on record, patently glaring at the face of on-lookers.
In view of the above the learned counsel for the appellant is directed to declare the result of the respondent by tomorrow and produce the Result Card in Court, In case as per the result to be declared by the appellant, be "failed" the appellant shall produce the Answer Sheets in t Court, for perusal. To come up on 7.2.1996".
The answer books were produced in the Court on 9.7.1996. The Division Bench noticed glaring irregularities in the marking of the answering books of the present appellant, IVth paper of English Novel, and following order was passed on 9.7.1996.
"The answer sheet, in pursuance of the order of this Court dated 6.2.1996, has been produced. We have perused it. It depicts glaring irregularities. At the end of Question No. 1, the Examiner has given 9 marks which are found cut with initial (M) and then 5 marks are given. So is the pattern of Question No. 2. We are not satisfied with this situation. We accordingly direct the Vice Chancellor to get the matter probed by a Senior Professor and then submit his report in this Court on 7.10.1996.
The internal as well as external examiners shall also appear in person on that date of hearing." The Vice Chancellor, in compliance with the order dated 9.7.1996 entrusted the matter for probe to Mr. Muhammad Sultan, Head of the English Department, Islamia University Bahawalpur. The third examiner, i.e. Mr. Muhammad Sultan reevaluated the answer sheet of paper IVth (English Novel) and with respect to the two questions i.e. Questions Nos. 1 and 2 made report as under: - "With reference to the answer book bearing fictitious Roll No. 1219 of M.A. English Examination (Paper-IV Novel), it is submitted that I have gone through the script impartially^ and made the following judgment:" Q. No.1 Deserves at least pass Marks (7). - Q. No.2 Deserves at least (6) Marks." The report of the Head of English Deptt. Islamia University, Bahawalpur is Annexure "F". Thereafter the University etc. Opted to withdraw their Intra Court Appeal on 26.11.1996. The present appellant then filed Constitutional Petition No. 4573/96/BWP, praying for direction for declaration of her Result based on reevaluated script. The writ petition has been dismissed by the learned Single Judge in chamber vide order dated 15.9.1997. The learned Single Judge in Chamber has been pleased to hold that the re-evaluated marks have to be, perforce, ignored and as a result thereof the appellant having secured 24 marks remains failed. Hence this appeal.
3. Learned counsel for the appellant has argued that the re-evaluation of the appellant's IVth paper has been got conducted by the Vice Chancellor himself and the order of Division Bench passed in this respect dated 9.7.1996 has been implemented and taken legal effect thus the marks awarded on re-evaluation has created a right in favour of the appellant to ask for declaration of her result on that basis. It has further been argued that the present respondents, instead of challenging the order dated 9.7.1996 passed by this Court, implemented the same and proceeded to withdraw their on Intra Court Appeal. Hence the said order has attained finality, therefore, the respondents are not only bound by the said order but are also bound by the re-evaluated marks.
Therefore, the appellant's result is to be declared in accordance with the re-evaluated script. It has further been argued that in fact initially the examiner was left with no jurisdiction to reduce the marks of Q. Nos. 1 from 9 to 6 and of Q. Nos. 2 from 7 to 4 after he had evaluated the same. In alternate learned counsel for the appellant prayed that originally awarded marks to Questions Nos.
1 and 2 should have been taken into consideration for declaration of the result of the appellant, because it has already been observed by this Court that the attitude of the respondents was 'not fair' and mala fide on record'.
4. The learned counsel for the respondents has vehemently contested the proposition and has argued that re-evaluation is not permissible under the University calendar, hence the appellant is not entitled to get her result based on reevaluated script.
5. We have given our anxious consideration to the arguments of the parties. The Vice Chancellor himself got the matter probed into by the Head of the Deptt, of English under the order of this Court dated 9.7.1996 passed in I.C.A. No. 17/95/BWP. This Court has already noted glaring irregularities' in the marking of script of the appellant and has found 'mala fide on record'. With respect to the learned Single Judge, the ratio laid down in the case-law referred to in the judgment of learned Single Judge is not attracted in the present case, as this Court itself has found mala fide on record in the case of the appellant. Hence this Court had found ex facie that there is good ground made out for further inquiry in terms of law laid down in Muhammad Fazil Khan case, PLD 1975 P. 331.
6. Therefore, the dictum laid down by Hon'ble Supreme Court in Muhammad Fatal Khan's case, as re-iterated in case of Board of Intermediate and Secondary Education Lahore v. Mst. Salma Afroze, PLD 1992 S.C. P. 263, this appeal is allowed, and the result of the appellant based on calculated perverse marking is hereby declared as illegal void and without lawful authority; and further the respondents are directed to declare the result of the appellant based on reevaluated script in accordance with the university .Regulations. Moreover, if the appellant is found entitled to grace marks under the Regulations/Rules, she would also be given her due right. However there shall be no order as to costs.