1. JUDGMENT CH. IJAZ AHMAD, J. Brief facts out of which the present writ petition arises are that respondent No. 1 appeared in B.A. 1st annual examination under Roll No. 16745. Respondent No. 1 allegedly passed the examination and result card No. 48378 dated 9.4.1995, was issued by the Assistant Controller Examinations delivered to him through post (Ex.PI). Subsequently, respondent University issued degree No. B-93013 to him on 22.8.1997. Respondent No. 1 was appointed as passport Examiner in the office of the Director Immigration. Office of the Director Immigration sent a letter to the Punjab University for verification of the certificate/degree of the respondent No. 1 on 5.5.1981. The respondent University allegedly sent a reply oh 9.6.1981. Respondent University sent reply to the Director Immigration on 9.6.1981, with the observation that the certificate/degree of the respondent is bogus. Respondent No. 1 being aggrieved filed a suit for declaration with permanent injunction that letter dated 9.6.1981 is without lawful authority, mala fidley. Respondent No. 1 was suspended by the Director Immigration. The Director Immigration after receiving the reply from Punjab University vide dated 9.6.1981, requested the FIA to initiate the proceedings against respondent No. 1. The FIA department after conducting the inquiry found that letter issued by the University dated 9.6.1981 is not in accordance with the record of the respondent and respondent No. 1 was found innocent and the result card and degree was validly issued by the Punjab University and the inquiry was closed. Subsequently the FIR No. 181/84 was also registered against the petitioner. Petitioner being aggrieved by the letter of the Punjab University dated 9.6.1981 filed suit for declaration with permanent injunction on 6.12.1981 which was dismissed by the Trial Court under Order 7 Rule 11 CPC on 4.3.1982. Respondent No. 1 being aggrieved filed appeal before the District Judge Multan, who entrusted the same to the Addl: District Judge. The Addl: District Judge accepted the appeal and remanded the case to the Trial Court to decide the same on merits. After investigation FIR No. 181/84 was cancelled by the FIA department and the petitioner allegedly has withdrawn the suit on 23.11.1985 as the respondent No. 1 was reinstated by the Director Immigration on 14.10.1985. Respondent No. 1 filed an application before the Director Immigration for recovery of the arrears of the period in which respondent No. 1 was suspended by the Director Immigration. He also filed an application to the Punjab University for obtaining duplicate of degree on 4.5.1986. The Punjab University refused to issue the degree to the respondent No. I on 18.10.1986. Respondent No. 1 being aggrieved by the order of the Punjab University dated 18.10.1986 filed another suit for declaration with permanent injunction on 12.11.1986. Petitioner/defendant filed written statement controverted the allegations levelled in the plaint.
2. Out of the pleadings of the parties, the Trial Court framed the following issues:-
(i) Whether this Court lacks jurisdiction to try this suit? OPD.
(ii) Whether the suit is not maintainable in view of the preliminary objections No. 3 and 4 of written statement of defendants No. 3 to 6?
2. (i.e) Whether the suit is hit by section 11 CPC in view of the preliminary objection No. 2 of written statement of defendants No. 1 and 2? OPD 1 and 2.
(iv) Whether the suit of the plaintiff is based on mala tides? If so, its legal effect? OPD 1 and 2.
(v) Whether the plaintiff appeared in the B.A. Examination and is a successful graduate of the Punjab University for the reasons stated in the plaint? OPP.
(vi) Relief.
3. Respondent No. 1/plaintiff appeared as PW-1 and submitted the following documents in his statement:- Ex.P-1.
(i) Envelope of the post card, which was sent to him by the Punjab University.
(ii) Ex.P-II Statement of Asghar Ali Chaudhory Inspector, Legal FIA which was recorded in the earlier suit.
4. (i.e) Ex.P-III Report of FIA dated 23.2.1983, which reveals that Punjab University issued a valid degree.
(iv) Ex.P-IV.
5. Legal opinion dated 25.3.1983, of the Immigration department.
(v) Ex.P-V. Copy of result card dated 9.4.1975.
(vi) Ex.P-VI.
6. Letter dated 21.3.1983 for verification of educational qualifications.
(vii) Ex.P-VII Letter of Direction FIA to Assistant Director FIA Immigration dated 2.4.1983.
(viii) Ex.P- Report dated 15.7.1986.
7. Petitioner/defendant produced DW/1 M.S. Jamshed who produced the! Following documents in his statement:-
(i) Ex.D-1 Letter dated 9.6.1981, a reply by the Registrar to the Immigration department that the certificate allegedly issued by the petitioner/defendant to respondent No. 1/plaintiff's degree bogus.
8. It reveals that respondent No. 1 passed B.A. 2nd/annual examination held in October 74 and obtained 25 marks out of 700.
(ii) Ex.D-II Plaint filed by respondent No. 1.
(Hi) Ex.D-III , Interim order of the Civil Judge dated 4.3.1982.
(i) Ex.D-IV.
9. Suit of respondent No. 1 was dismissed under Order 7 Rule 11 CPC dated 4.3.1982.
(ii) Ex.D-V.
10. Decree of suit.
11. (i.e) Ex.D-VI.
12. Statement of the learned counsel for the respondent No. 1.
(iv) Ex.D-VII.
13. Order of the Court dated 23.11.1985, which reveals that respondent No. 1 has withdrawn the suit with out permission to i.e fresh one.
(v) Ex.D-VIII.
14. Paper-B = 23 Award list of reveals that respondent No. 1 obtained marks in B.A. Examination English Paper-A Zero.
15. Award list of political Science Paper-A marks obtained = 36.
16. Paper-B Political Science = 23 Islamic Studies Paper-A Marks obtained = 19 and Paper-B Marks obtained = 27 Persian marks obtained 54.
(vi) Ex.D-ix.
17. Result statement which reveals that respondent No. 1 has passed the said examination and obtained 325 marks out of 700.
(vii) Ex.D-x.
18. Letter dated 5.5.1981 from Deputy Director Immigration to the Controller of Examinations.
(viii) Ex.D-xi.
19. Letter dated 9.6.1981 which is reply to the letter dated 5.5.1981. Ex.D-xii
(ix) Reply of the Assistant Commissioner to Deputy Director Government of Pakistan Directorate of Immigration that degree of the respondent is bogus.
(x) Ex.D-xiii.
20. Result gazette which reveals that respondent No. 1 failed.
(xi) Ex.D-xiv.
21. Register of students registered No. Of respondent No. 174-Z- 4440.
(xii) Ex.D-xv.
22. Which reveals that the degree issued to respondent No. 1 is the degree of one Tahira Nadeem regular candidates of Lahore College Women.
(xiii) Ex.D-xvi.
23. Latter dated 16.3.1981 from FIA to the Punjab University regarding verification of the certificate/degree of respondent No. 1.
3. Learned counsel for the petitioner contended that contents of the earlier suit and the present suit put in juxta-position then it is crystal clear that the second suit has filed on the same cause of action. The same is barred under Order 23 Rule 1 CPC as the respondent No. 1 has withdrawn his earlier suit with out permission to tile the same on the same cause of action. He further urged that both the Courts below have given concurrent findings of fact against the petitioner without adverting to this aspect of the case. He further urged that second suit of the respondent No. 1 is his by principle of readjudicate. He further stated that respondent No. 1 appeared in it annual 1974 examination as is evidence from the gazette as well as the award lists. He fuhrer stated that certificate allegedly claimed by the petitioner pertained to one Tahira Nasim regular student of Lahore College for women. He further urged that both the Courts below did not discussed the evidence. Therefore, they committed material irregularity and this Court has basted power to disturb the findings of fact which are not result of the proper appreciation of evidence. He further urged that certificate claimed by respondent No. 1 pertains to the 2nd annual 1974 examination. He further urged that the basic documents are award lists on the basis of which the result sheets are prepared. He further stated that respondent No. 1 changed the result on the result sheet but he could not lay had on the awards lists but both the Courts below did not consider this aspect of the case. He further urged that both the courts below did not consider the evidence of the petitioner and relied upon the documents submitted by respondent No. 1 /plaintiff. He further urged that both the Courts below are influenced by the report of the Inspector FIA who found the certificate/degree was valid after examining the record of the Punjab University. He summed up his arguments that the certificate and the degree is bogus and the same is not prepared on the basis of the original record. He further stated that respondent No. 1 is beneficiary of the forgery committed by the official of the University on the result sheet.
4. Learned counsel for the respondent contended that both the Courts below have given concurrent findings of fact against the petitioner. Therefore, revision petition is not maintainable.
24. He further stated that DW- 1 stated in his statement that result sheet is the original record on the basis of which the result card is issued to respondent No. 1. Statement of DW-1 also reveals that there is cutting on the result sheets which is according to DW-1 is the basic document. His statement further reveals that no action has been taken against any of the employee of the University. He further urged that total award list of all the papers of respondent No. 1 was not produced by DW-1. He further stated that result sheet is not in the custody of DW-A. He further stated that according to the statement of DW-1 the result sheet is prepared on the basis of the award list. He further stated that Ex.D-15 reveals that it relates to B.A. 1st annual examination. Marks are prepared on the basis of the results sheets. He further stated that Ex.D/9 result sheet which is the basic document according to which the respondent No. 1 has passed the aforesaid examination. He further stated that both the Courts below after proper appreciation of evidence have given concurrent findings of fact against the petitioner. He further stated that learned counsel for the petitioner failed to point out any peace of evidence which is misread or non-read of both the Courts below. He further stated that first suit was filed by respondent No. 1 on the basis of letter dated 9.6.1981 sent by the University to his parent department. On the basis of the aforesaid letter his parent department has suspended him and got a case No. 181/84 registered against him. The case was cancelled after inquiry and the petitioner was re-instated on 14.10.1985 and due to the aforesaid circumstances, respondent No. 1 has withdrawn his suit on 23.11.1985. Therefore, principle of readjudicate is not attracted even otherwise second suit has filed by respondent No. 1 against the University on the basis of the order dated 18.10.1986 as the University refused to issue duplicate degree to the respondent No. 1. He summed up his arguments that the gazette is not a final document.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the material facts in chronological order not resolve the controversy between the parties.
(i) Respondent appeared in the annual examination of B.A. 1974 under Roll. No. 16745 declared pass and secured 325 marks out Of 700.
(ii) On 9.4.1975 result card No. 48378 was issued through past by the Assistant controller (Certificate
111. On 22.8.1977 degree No. 9.30.13 was issued to him.
(iv) On 30.12.1976 Respondent got appointment as Examiner in the office of Director Immigration and Passport.
(v) On 16.3.1981 Director of Immigration and Passport sent result card/degree of respondent No. 1 for verification to the Punjab University.
(vi) On 11.3.1981 the Assistant Controller verified that respondent No. 1 passed B.A. 2nd annual examination 1974 vide Roll No. 16745 and registered No. 74-Z-3744 and obtained 325 marks out of 700.
(vii) on 5.51981 the Assistant Controller (certificate) sent reply to the Deputy Director (H.Q)
25. Government of Pakistan Directorate of Immigration that respondent No. 1 under Roll. No. 16745 appeared in the said examination of this University.
(viii) Respondent filed suit for declaration against petitioner to the effect that letter dated 9.6.1981 issued by the defendant No. 3 (Assistant Controller) is illegal, mala i.e, ultra-vires and based on mis-representation.
(ix) On 14.10.1985 the Immigration department re-instated the respondent as the aforesaid FIR was cancelled.
(x) On 23.11.1985 respondent has withdrawn the suit.
(xi) Respondent No. 1 filed application for obtaining duplicate degree from the University. University refused to issue duplicate degree vide dated 18.10.1986.
(xii) Respondent No. 1 being aggrieved filed a suit for declaration on 12.11.1986 before the Senior Civil Judge Multan who entrusted the same to Civil Judge 1 st-Class Multan. Civil Judge decreed the suit vide judgment and decree dated 9.4.1987.
(xiii) Petitioner filed appeal before the District Judge Multan who entrusted the same to Addl: Director Multan who dismissed the same vide judgment and decree dated 5.10.1987.
26. It is admitted fact that DW-I stated in his cross-examination that result statement reveals tampering against the Roll No. Of respondent No. 1. He further admitted that result statement is the original record. He further admitted that result is prepared on the basis of the award lists. Both the Courts below ignored the award lists and accepted the result sheet and has given finding of fact against the petitioner on issue No. 5. It is admitted fact that according to the rules and regulation of the University that award list is prepared by the sub-examiner after marking the answer books which was also checked by the head examiner. Therefore, both the Courts below wrongly ignored the award lists and relied upon Ex. D9. Result sheet. Similarly the documents produced by the respondent No. 1/plaintiff regarding the investigation and inquiry conducted by the FIA has no relevancy to resolve the present controversy as the same was conducted without associating a responsible officer of the University and without adverting to the award lists. In conduct of examinations award list is the basic document which was not relied by both the Courts below wrongly. Both the Courts below have given benefit regarding cutting on the result sheet not in accordance with the principle laid down by the superior Courts as the respondent is beneficiary of that cutting not the University. I am fortified by the judgment of Hon'ble Supreme Court in Akhtar Ali's case, 1979 SCM R 549. It is also settled proposition of law that nobody should be entitled to get benefit of his on mis-deeds but both the Courts below have given benefit to respondent No. 1 without adverting to the aforesaid principle of law. He who seeks justice/equity must come with clean had and must be ready to do justice. I am fortified by the following judgments: (PLD 1992 SCM R 324); (PLD 1973 S.C. 326)
27. It is also settled principle; of law that authenticity of award list could not be doubted. I am fortified by the judgment of this Court (1984 CLC 3316). It is also settled proposition of law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to property advise him is not complete excuse in the matter as the principle laid down by the Hon'ble Supreme Court in the following judgments:- (PLD 1969 S.C. 278); (P.L.D. 1992 S.C. 263).
28. It is also settled Rule that primary evidence must be given weight Ever the secondary evidence but both the Courts below decided controversy between the parties in violation of this principle-Both the Courts below wrongly rejected the awards lists without any justification. It is also settled proposition of law that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order as the principle laid down by the Hon'ble Supreme Court in Jalal-ud-Din's case (P.L.D. 1992 S.C. 207).
29. In view of what has been discussed above, this revision petition is accepted and. Judgments of both the Courts below are set aside, with no order as to costs. 'The petitioners failed to initiate proceedings against their on employees who are responsible of this mischief. The petitioners are directed to Constitute a Committee, who shall probe into the matter who are responsible for this mischief. The person, who shall be found responsible as a result of inquiry, then petitioners shall take action against the said person under Efficiency and Discipline Rules and criminal case be got registered against the said person.