With the consent of both the learned counsel for the parties, this Constitutional petition is being disposed of as Pacca matter. The respondents agreed that report and comments filed by them be treated as their written statement.
2. The petitioner through this Constitutional petition has challenged the office order, dated 1-4-1999 issued by the respondent No.1 which reads as under:-- "The following students, old 2nd Year, M.B.,B.S. Class of this college have not passed the First Professional M.B.,B.S. Examination within four available chances. In accordance with Islamia University, Bahawalpur Notification No.3230/MR, dated 17-8-1987, they are not eligible to continue their studies in this college. Therefore, their names are hereby struck off from college Rolls with immediate effect.
(1) ............................................................................................................................
(2) Raeid Mohsin Khamis Abuloli son of Mohsen Abuloly.
3. Facts of the case are that Raied Mohsin petitioner, who holds Palestinian Nationality, was granted admission in 1st Year, M.B.,B.S. Class of Quaid-i-Azam, Medical College, Bahawalpur in the Sessions 1995-96 on the recommendations of Government of Pakistan, Ministry of Finance and Economic Affairs under the scheme of admission of foreign students under Pakistan Technical Assistance Programme. The petitioner paid all the dues of the college and also got himself registered as regular student with the Islamia University Bahawalpur. The petitioner appeared in Annual Examination, 1997, held in September/October, 1997 in the 1st Professional M.B.,B.S. Examination but could not qualify the said examination. Thereafter, the petitioner could not appear in the Supplementary Examination of 1997 held in December, 1997/January, 1998 and remained absent due to sickness i,e, Low Backache (back bone problem). According to the petitioner, he submitted an application for the grant of leave in this respect to the Principal, Quaid-e-Azam Medical College on 25-12-1997 and has filed copy thereof as Annexure "1)/1" and has attached herewith Certificate issued by Dr. Muhammad Ashfaq regarding his ailment from 25-12-1997 to 6-2-1998 as Annexure "D/2". The petitioner thereafter appeared in Annual Examination 1998 held in October,1998 but could not pass 1st Professional M.B.,B.S. Examination. Subsequently, the petitioner also appeared in Supplementary Examination of 1998 held in January/February, 1999 but unfortunately could not qualify the 1st Professional M.B.,B.S. Examination. Copy of the gazette/notification of Islamia University is attached as Annexure "F" with this petition, wherein the petitioner's name appears at Serial No.63 and it has been shown that the petitioner has chance to appear in the Examination up to 1st Annual, 2000. The respondents No.1 issued the office order, dated 1-4-1999, impugned herein, whereby the name of the petitioner has been struck off from the college rolls with immediate effect, without providing opportunity of hearing to the petitioner; hence this Constitutional petition.
4. The learned counsel for the petitioner argued that the office order, dated 1-4-1999 is illegal, void and without lawful authority as same has been issued mechanically and petitioner has not been given an opportunity of hearing to explain his position, before passing of the office order. Hence the impugned order is violative of principles of natural justice. The learned counsel further argued that the impugned order is contrary to the notification issued by respondents Nos.2 and 3 as according to the notification of the result, issued by the respondents Nos.2 and 3 on 15-3-1999, the petitioner has got right to appear in the Examination up to 1st Annual, 2000, hence the impugned order is unwarranted by law; further argued that the petitioner has only availed three chances while his non-appearance to take the Supplementary Examination held in December, 1997/January, 1998, was due to his restricting sickness which prevented him from taking the examination and it was beyond his control to take the examination, therefore, taking into consideration, the peculiar circumstances of the petitioner, the petitioner was entitled to be given at least one more chance to appear in the examination. The learned counsel further argued that the provision/rule disqualifying the petitioner from further pursuit of education in the college is necessarily penal in nature and creates doubts as to its interpretations, if any, required by law to be resolved in favour of the affectee/petitioner, while the respondent No.1 has passed the impugned order mechanically without providing opportunty of hearing to the petitioner to explain his cause, hence, the impugned order is void and without lawful authority. To substantiate his contention, the learned counsel for the petitioner has placed reliance on the judgment of Division Bench of Peshawar High Court reported as Asim Siddique v. Principal, Ayub Medical College, Abbottabad and another (PLD 1992 Peshawar 52). The said view was also followed by the Division Bench of Sindh High Court in the judgment reported as Zubair Ishtaiq Qureshi v. The Chairman of Academic Council and Principal, Sindh Medical College, Karachi and 3 others (1998 CLC 1675). In both these judgments while interpreting the same Rule, the Courts have interpreted it in favour of the affectee and allowed the candidate to avail 4th chance to qualify the examination despite the fact that the candidate had exhausted 4 available chances but could not in fact take examination in a given chance due to circumstances beyond his control. Even in the similar circumstances, where the candidate had availed three chances and had not availed one chance, and still remained unsuccessful to qualify 1st Year M.B.,B.S. Professional Examination, under the orders of Supreme Court of Pakistan, the candidate availed 4th chance, hence it would be inferred that the Hon'ble Supreme Court of Pakistan also upheld the view that a candidate should be allowed to avail of four clear chances. In the judgment reported as Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College, Bahawalpur (1994 SCMR 532), the Supreme Court has interpreted the same Rule as the challenge was made by the candidate of Quaid-e-Azam Medical College. The Rule reads as under:- "Any student who fails to clear the First Professional M.B.,B.S. Examination in four chances offered by the University availed or unavailed shall cease to be eligible for further Medical/Dental Education in Pakistan. This will be effective from the First Year Admission of 1986-87."
' In this respect, the Hon'ble Supreme Court of Pakistan, though upheld the vires of Rule/Regulation but still allowed the appellant to avail of fourth chance during pendency of appeal.
5. The learned counsel appearing on behalf of all the respondents contested this petition and argued that language of this Rule is unambiguous. The rule has been made by Pakistan Medical and Dental Council of Pakistan and it is applicable to all the Medical and Dental Institutions in Pakistan and rule was made applicable taking into consideration the deteriorating standard of education; further the learned counsel has emphasised on the language used in amended Rule which reads as under:-- "Four chances offered by the University availed or unavailed. Shall cease to be eligible for further Medical and Dental Education in Pakistan."
' It has been contended that the rule is to apply mechanically and no scope has been left open under the rule to see circumstances of the petitioner as to why he could not clear 1st Professional M.B., B.S. Examination in four chances, though he did not avail one chance; further argued that the vires of the Regulation were challenged and have been upheld by the Hon'ble Supreme Court of Pakistan in the judgment reported as Akhtar Ali Javed v. Principal, Quaid-e-Azam Medical College, Bahawalpur (1994 SCMR 532) and the same view was also followed in another judgment reported as Principal, Quaid-e-Azam Medical College, Bahawalpur and another v. Nasim Ahmad and another (1997 SCMR 583); further submitted that no application for leave and medical certificate was ever submitted by the petitioner to the respondent No. 1 .
6. I have considered the arguments of the learned counsel for both the parties.
7. It is well-established law that principle of natural justice has to be observed in all the proceedings which might result in consequences affecting the person or property or other right of the parties whether the proceedings are taken up by judicial body or administrative authority. Vide office order, dated 1st of April, 1999, the petitioner's right to continue his studies for medicines in Pakistan has been closed for all times, hence, valuable right of the petitioner is involved, therefore, applying the rule of natural justice, it was obligatory for the respondent No.1 to issue a show-cause to the petitioner and provide him an opportunity of hearing before passing the impugned office order. The rule of natural justice is imperative and also applies even though there may be no positive .Words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to he implied into it as the minimum requirement of fairness.
8. Had the respondent No.1 provided an opportunity of hearing to the petitioner before passing the impugned order, the petitioner would have submitted his case as to whether non-availing of one chance was due to restricting sickness which prevented the petitioner from taking the examination and thus was unavoidable and a just cause beyond the control of the petitioner. Hence due to failure on the part of the respondent No.1, to provide opportunity of hearing, the case of the petitioner could not be considered in the light of the judgments referred by the learned counsel for the petitioner wherein the Regulation has been interpreted in favour of the affectee.
9. Furthermore, in the impugned order, dated 1-4-1999 name of the petitioner has been struck off from the Rolls of the College, while in the Gazette Notification issued by the respondents Nos.2 and 3 on 15-3-1999, the petitioners still has got a right to take examination up to 1st Annual, 2000.
10. No doubt, the amended Regulation of Pakistan Medical and Dental Council has been upheld by the Supreme Court of Pakistan in its judgment reported as 1994 SCMR 532 and maintained in 1996 SCMR p.
1101. However, while interpreting the said Regulation, it has been held by the Division Bench of Peshawar High Court in the judgment reported as PLD 1992 Pesh. 52 as under.-- "The rule is applicable to such cases where the said four chances have either been fully but unsuccessfully availed of or have remained 'unavailed', in circumstances, involving voluntary failure or designed inaction on the part of the student. In other word, if the concerned student is able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause, beyond his control from availing of a chance, he cannot be said to have failed in availing one of such four chances, as aforesaid."
11. The same view was adopted by the Division Bench of Sindh High Court in reported judgment titled as Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal of Sindh Medical College, Karachi (1993 CLC 1675) and Division Bench of this Court, in I.C.A. No.19 of 1992/BWP, judgment, dated 14-3-1993, also held the same view which was further upheld by the Hon'ble Supreme Court in the judgment reported in 1997 SCMR 583.
12. The superior Courts have consistently interpreted this Regulation in favour of the affectee on the ground that a provision disqualifying a student from further pursuit of education in a faculty is necessary penal in nature and doubts as to its interpretation, if any, are required by law, to be resolved in favour of the affectee.
13. Now taking into consideration, the case of the petitioner in the light of the above interpretation of the Regulation, the petitioner filed an application seeking leave from the Principal of Medical College on the ground of his illness as back as on 25-12-1997. The petitioner has at the first available opportunity i,e, alongwith this Constitutional petition also produced Medical Certificate, dated 8-2-1998, affirming his serious illness, which restricted him to take the bed-rest and prevented him to take the examination, hence, it was a just cause beyond his control.
14. The learned counsel for the respondents has raised objection that the said Certificate be not considered because the Doctor has given a note on the certificate to the effect that it is not valid for Court purpose. The objection is not tenable. In fact the petitioner had obtained the Certificate on 8-2-1998 to produce the same before respondent No.1, if need be, but the respondent No.1 has issued the impugned order, dated 1-4-1999 without providing opportunity of hearing to the petitioner; otherwise footnote of the Doctor on the Certificate is not fatal to the case of the petitioner. Hence I see no reason to disbelieve the petitioner who is a foreigner in this country, and has come all the way to Pakistan to pursue his studies.
15. In these circumstances, this Constitution petition is allowed and the impugned order, dated 1-4- 1999, issued by respondent No.1, is hereby declared as illegal, void and without lawful authority.
16. Resultantly, the respondents shall offer one clear chance to take M.B.,B.S. 1st Professional Examination to the petitioner. However, there shall be no order as to costs.