ZAFFAR HUSSAIN MIRZA, J.-These 17 Constitutional Petitions Nos. D-3/78. D-4/78, D-104/78, D-105/78, D-106/78, D-107/78, D-108/78, D-109/78, D-110/78, D-111/78, D-112/78, D-134/78, D-138/78, D-139/78, D- 140/78, D-151/78 and D-154/78 raise common questions of law and are said to have arisen out of an incident which occurred on 8th of November, 1977. We therefore, propose to dispose of these petitions by this judgment.
2. The 17 petitioners are students of M.B.B.S. Course and are pursuing their studies in various years of the course ranging from first year to fifth year in the Sind Medical College, Karachi.
3. It is common ground that some students of the aforesaid College took over and seized six buses of S. R. T. C. On 8-11-1977, and detained them in the College premises. According to the petitioners, this action was taken as a result of grievance of the student community regarding the transport facilities available to them and in order to press their demands.
4. On 9-11-1977 a First Information Report was lodged at 4-50 a. m. By the S. H. O., Saddar Police Station on behalf of the State against 30 students who included the present petitioners. The substance of the allegations disclosed in the F.
1. R. Was that on 8-11-1977 when the buses brought the students in the College as usual, the accused did not permit them to go back. The drivers and conductors of the buses were asked to get out of the buses and go away. They also caused damage to the buses. There were six buses seized by the students out of which five had brought the students in the College and one was taken over outside the College premises, while it was passing along. Out of the 30 accused, 27 were shown as arrested and the remaining 3 as not arrested.
5. According to Muhammad Mohsin, the petitioner in Constitutional Petition No. 3 of 1978, he being the President of the Students' Union of the College along with the members of the Committee which was negotiating with the authorities for providing necessary transport facilities to the students, during the day met the Magistrate of area and Capt. Ejaz Mehdi who were dealing with the situation. In the night when the members of the negotiating team came back to the College at 3 a. m. After reaching an agreement with the Principal of the College (Anuexure `B'), they found that the students at the site were already arrested. The members of the negotiating team on their arrival were also put under arrest.
6. Each of the petitioners has categorically denied responsibility for participation in the illegal seizure of six buses. Each petitioner has briefly related the circumstances in which he was arrested.
Some of the petitioners are residing in the Hostel within the premises of the College and allege that they were attracted on the noise and when they came at the spot they were arrested by police. All the petitioners were arrested on 9-11-77 except petitioners Arshad Ovais and Syed Majid Warsi in Constitutional Petitions Nos. 105 and 106/1978 who allege that they were arrested on 14-11-1977.
7. According to the petitioners who were arrested in the early hours of 9th November, they were taken and kept at the Saddar Police Station first and were thereafter shifted to the Central Prison, Karachi. They further state that they were detained in the Central Prison until 19th November during the course of which they were taken to the Naval Headquarters for trial under Martial Law Regulations but the trial was postponed. On 20th November the petitioners were called along with their parents at the Naval Headquarters, where undertakings where taken from their parents that their sons and wards would not take part in any act, subversive of law and order until the completion of their studies in the Medical College. On this undertaking-the parents requested for the release of the detained students. At the same time, the authorities also took an undertaking each from 88 students including the petitioners to the effect that they would not indulge in any activity, which is in violation of the orders, Regulations or instructions of the Martial Law Authorities and would accept the decision of their migration to other Colleges within the Province and outside.
The petitioners allege that these undertakings were taken under the threat of prosecution and rustication from the College. Thereafter the petitioners were released from custody. Subsequently the petitioners were served with orders separately under the signature of Acting Principal and Chairman, Academic Council, Sind Medical College, Karachi informing them that the Government of Sind has issued orders migrating them from Sind Medical College, Karachi to various Colleges in the Province and outside as under :-- Name Petition College to which No. Migrated
1. Mohd. Mohsin Haidry 3/78 Khyber Medical College, Peshawar.
2. Syed Nadim Ahmad 4/78 Quaid-i-Azam Medical College, Bahawalpur.
3. Agha Tariq Sajjad 104/78 Khyber Medical College, Peshawar.
4. Arshad Ovais Kazi 105/78 Nishtar Medical College, Multan.
5. Syed Majid Warsi 106/78 Bolan Medical College, Quetta.
6. Hasan Jawaed 107/78 Bolan Medical College, Quetta.
7. Mujeebuddin 108/78 Liaquat Medical College, Jamshoro.
8. Jawaid Kamal 109/78 Liaquat Medical College, Jams horo.
9. S. M. Wasimul Haq 110/78 Chandka' Medical Col--lege, Larkana.
10. Nadeem Zulfiqar 111 /78 Chandka Medical Col--lege, Larkana. .
11. Nadeem Nayeem 112/78 Liaquat Medical College, Jamshoro.
12. Khalid Hasan 134/78 Chandka Medical Col--lege, Larkana.
13. Altaf Husain Hasbmi 138/78 Chandka Medical Col--lege, Larkana.
14. Qamar Abbasi 139/78 Liaquat Medical College, Jamshoro.
15. Shahid Hussain Kureshi140/78Liaquat Medical College, Jamshoro.
16. Khawaja Majeebur Rehman151/78Quaid-i-Azam Medical
17. Jamaluddin Hussain154/78Chandk a Medical Larkana.
8. The petitioners seek to challenge the aforesaid orders of migration passed by the Government of Sind as illegal and without lawful authority.
9. On behalf of the respondents, Dr. Nazir Ahmad Choudhry, the Principal, Sind Medical College, Karachi and Lieut. Commander M. A. P. Baig, P. N. Have filed counter-affidavits in reply to the allegations contained in the petitions. It is stated by Dr. Nazir Ahmad that -the transport facilities provided to the students of the Sind Medical College, Karachi were quite adequate keeping in view the general conditions prevalent in all the Colleges in this regard. He further asserts that the petitioners along with few other students in a vain bid to establish themselves as chapions of the cause of students seized six buses of Karachi Transport Corporation on 8-11-77 and brought them into College precincts. Other students then joined them later. In order to tactfully handle the situation a meeting was held with the Leaders of the Students and they were assured that the problem will be attended to and solved at the earliest. This assurance was contained in Annexure `B'. But instead of appearing the students the petitioners incited them to remain adamant with the result that buses which had been illegally captured remained detained in the College premises. In this situation the authorities were left with no alternative but to take action according to law. As a result the students who were keeping guard on the buses including the petitioners were arrested in the early hours of 9-11-77 from the College premises. The Principal has further denied that the undertakings were obtained under any threat, as the petitioners and their guardians were all aware that in capturing the buses they had been guilty of criminal offence for which they were liable to be prosecuted.
10. Lieut. Commander M. A. P. Baig has also stated facts as disclosed by the Principal. He states that the parents and the guardians of the arrestad students, realizing the gravity of the situation and the offence committed by the students voluntarily held out assurances of orderly behaviour on the part of their wards. So did the petitioners. He has also categorically denied that any threats were administered to the petitioners. After the undertakings were submitted the cases of all the students were reviewed by the Review Committee set up by the Martial Law Authorities who after due deliberations recommended that all of them be released. However, with a view to preventing breach of peace in the College in future, it was decided to migrate 17 of the students who were petitioners before us, to other Colleges. He further states that the decision to migrate the petitioners was taken in the larger interest of peaceful atmosphere in the College. In order to eliminate all such possibility, such students who are likely to create agitation atmosphere in the College were dispersed and migrated to other Colleges.
11. In support of the petitions Mr. S. A. Wadood urged two-fold contention. It was first contended that the impugned orders of migration were passed in violation of the rule of natural justice in so far as no notice or opportunity of hearing was given to the petitioners before passing the orders which obviously operate adversely to the interests of the petitioners. In this behalf it was argued that the authorities were required to take into consideration the comparative availability of facilities at the transferee College and the impact of the order in the context of pecuniary loss, inconvenience and loss of time involved in placing the affected petitioners in the academic schedule of the transferee College. In the alternative as regards the case of those petitioners who have been migrated to Colleges outside the Province, it was further contended that the executive authority of the respondent Government did not extend beyond the territorial limits of the Province and therefore the order suffered from lack of competency.
12. Messrs Mohammad Shafi and Habibur Rashid, the other learned counsel appearing for some of the petitioners adopted the arguments of Mr. Wadood.
13. The learned Advocate-General appearing for the respondents supported the impugned orders and contended that under the Rules of the Prospectus applicable to the Sind Medical College for the year 1976-77 the Government enjoys unfettered and unbridled power to order migration of a student from the College to any other college "without assigning any reason" and therefore, no question of notice or hearing to the affected students arises in such a case.
14. In order to appreciate the respective contentions advanced by the learned counsel, it will be convenient to set out the relevant rules contained in the prospectus issued by the Government of Sind, touching the subject of migration as under :- "III. Migrations.-(l) Applications for migration can only be made on prescribed form obtainable from College office.
(2) These requests shall be forwarded through the Principal of the College where a students studies.
(3) The fee for the application of migration is Rs. 200. No application shall be entertained without the payment of migration fee.
(4) Migration shall be allowed only under the Government orders.
(5) Normally migration shall not be allowed in the first two years of study unless the First Professional M.B B.S. Examination has been passed except on very exceptional grounds to be determined by Government.
(6) Migration in the next three years of study may be allowed only in exceptionally deserving cases on the grounds to be determined by Government.
(7) Government can also migrate a student without assigning any reason or on request of Principal concerned.
(8) Migration shall not be considered in case of those students who have been admitted against reserved seats.
VIII-Rules of Discipline and Conduct:
(A) General-
(1) The Principal of the College shall be the administrative head for all the internal discipline of the staff and the students of the College.
(2) ,
(3) Any student who indulges in violence, uses abusive language, becomes insolvent or misbehaves, will be removed from the College, as such student will never make a good doctor as the presumption will be that the student is not a cool headed, which is the basic need of a medical man.
The student can be shifted from one college to the other college within the province on the matter of discipline.
Student can also be sent outside the province for the creation of harmony and goodwill or on matters of discipline.
(4) . (5) . . . . . . . . . o
(6) .
(7) While dealing with any given offence occurring inside the College/ Hospital/Hostel, the Principal may decide whether it is to be met with an apology, verbal or written, fine, suspension, cancellation of scholarship, explusion from the college or migration to some other college."
15. Now it is well established upon high authority that the rule of natural justice as embodied in the maxim audi alteram partem (no one shall be condemned unheard) is of universal application both in the case of judicial or quasi judicial and administrative tribunals or authorities. Unless its application is excluded by express words of the statute or by necessary intendment. It is further laid down that the rule is presumed to be engrafted in every law and is to be regarded as a fundamental requisite for exercise of power which may result in adversely affecting citizen. The learned Advocate-General did not dispute this position but his argument was that in the facts of the present case the application of rule of natural justice was impliedly excluded having regard to the language in which the grant of power for ordering migration was couched.
16. The learned Advocate-General strongly relied upon rule 7 in Chapter III relating to migrations in the Prospectus which authorises the Government to migrate a student "without assigning any reason", He placed reliance upon a recent case of this Court reported as Travelair Limited v.
Director, Exchange Control Department, State Bank of Pakistan (PLD 1977 Kar. 785)In the reported case a travelling agency which was not recognized by the International Air Transport Association was granted permission to submit cases of intending travellers abroad for permission to purchase tickets and foreign exchange on behalf of its clients under Paragraph 3 of the Instructions contained in Chapter XVII of the. State Bank Manual. The travelling agency in pursuance of the aforesaid permission carried on its business but after sometime the State Bank of Pakistan withdrew the permission with immediate effect. The travelling agency challenged the action invoking the rule of natural justice in so far as no opportunity of hearing was granted to the agency before passing the order of withdrawal of permission. The relevant provision in the Instructions was couched in the following terms :- "The State Bank will, however, in its absolute discretion accord recognition to a NON-IATA travel agent. Recognition so granted is liable to be withdrawn by the State Bank at any time without assigning any reason."
Upon an examination of the cited provision their Lordships came to the conclusion that the directions contained therein did not seem to require the affording of an opportunity of hearing to the agency before the recognition was withdrawn and in this connection made the following observation "In the light of the above observations, when we examine the case of the petitioner we find, that the petitioner was granted the facility of submitting applications on behalf of intending travellers abroad for permission to purchase tickets and obtain foreign exchange, which it could not without the authority of intending travellers m accordance with the law of agency but for the recognition or permission granted under the Instructions. Now if, under the Instructions which do not provide for objective determination of facts (the underlining' is mine) or any right of appeal or representation, the permission or recognition could be withdrawn without any reason, we are unable to see what useful purpose could be served in affording the petitioner an opportunity of hearing."
On parity of reasoning the learned Advocate-General strenuously contended that the language adopted in rule 7 of Chapter III of the Prospectus mentioned above is in pari materia with the language construed m the reported decision and, therefore, must be construed similarly, with the result that no fetters can be placed upon the power of the Government to order migration of any student for any reason.
17. After giving my best consideration to the submission, I am however, unable to agree. Upon considering the overall scheme of the Prospectus which apparently was intended to be a complete code in itself, it appears that Chapter III deals with migrations generally and the power to order migration vests exclusively in the Government. The perusal of the various rules contained in this Chapter will show that migration can be obtained by the students on their applications to be forwarded through the Principal of the College concerned and upon payment of the prescribed fee.
Further rule 5 provides that normally migration shall not be allowed in the first two years of study except on very exceptional grounds "to be determined by the Government". Similarly under rule 6 migration can be allowed in the next three years of study only in exceptionally deserving cases "on the grounds to be determined by the Government". Next comes rule 7 upon which reliance has been placed which seems to vest power in the Government to order migration of a student without assigning any reason or on the request of the Principal concerned. A fair reading of these Rules clearly makes out that the Rules contained in this Chapter deals with migration applied for by the student or ordered by the Government not as a measure of punishment but on expediency or exigency of circum--stances unconnected with 'discipline. This is clearly deducible from the fact that migration is regarded as a punishment under Chapter III relating to Rules of Discipline and Conduct. Rule 7 in this Chapter unequivocally regards and categories migration to some other college as a punishment to be awarded for an offence occurring inside the College/Hospital/Hostel.
18. The above analysis of the Rules thus clearly shows that in a given case if migration is ordered by way of punishment it would fall E within the purview of Chapter VIII of the Prospectus. The scheme o the Rules seems to be that the Principal of the College has been mad responsible for all internal discipline of the College and has been empowered to award various punishments including migration to a student responsible for breach of discipline. In case the Principal decides to award the penalty of migration he would be required to make a reference to the Government for the purpose under rule 7 of Chapter Ill.
19. Now the allegation of the petitioners is that they were compelled to sign the acceptance of the orders of their migration under the threat of criminal prosecution. There is no denial of the fact that allegations were made against the petitioners of having illegally seized the buses and in pursuance of a report with the police they were taken into custody. The learned Advocate-General sought to contend that if the proposed prosecution is not shown to be groundless and mala fide, the mere fact of arrest and pendency of criminal prosecution is no ground for holding that the acceptance was obtained under duress or coercion. However, in my opinion the question of duress is, in the circumstances of this case, absolutely irrelevant. It is not the case of the respondents that any prior notice of the proposed action was served. Indeed it was very fairly conceded by the learned Advocate-General that the impugned orders were passed before the petitioners signed undertaking accepting the decision of their migration to other colleges.
20. There can be no controversy that the orders were passed as a measure of disciplinary action keeping in view the past conduct of the petitioners (sic). This is quite clearly spelled out from the counter-affidavit filed by Dr. Nazir Ahmad Choudhry, the Principal of the College, para. 20, sub- para. (iii) of which is in the following terms "The petitioner had been guilty of serious breach of discipline for which Chapter III, para. 4 under the beading 'General', he could be rusticated from the College by the Principal. However, the authorities took a benevolent view and instead of awarding a severe punishment such as expulsion or rustication they decided to deal with the matter in merciful manner and after due consideration by the Government at the highest level it was decided to migrate the student concerned."
Clearly therefore the case of the petitioners fell within the purview of Chapter VIII of the Prospectus which authorises the infliction of penalty o migration in disciplinary proceeding. It is quite well established that in such matters the rule of natural justice must invariably be complied wit as a minimum requirement of fairness, even though there may be no positiv words in the statute or legal document whereby the power is vested to take such proceedings. This principle has been firmly established since the case o University of Dacca v. Zakir Ahmed (PLD 1965 SC 90The principle was re-affirmed in Abdus Saboor Klan v. Karachi University (PLD1966SC536) which was a case of an examines disqualified for two years without being informed of any charge or evidence by which it was supported.
21. In the background of the glaring facts of this case mentioned above it will appear that the facts of the case of Travelair Limited on which the learned Advocate-General strongly relied are distinguishable as the decision turned on the important consideration that the petitioner in that case had no vested right and the legal instrument under which action was taken did not provide for objective determination of facts. The position here however, is entirely different, inasmuch as the action has been based) on the assumption that the petitioners were guilty of conduct meriting the.E order of migration. The conduct relied upon is a past event, the existenc~ of which must be determined by ex facto determination. The question whether and how far the vesting of wide discretion in an aurhority would have the effect of displacing the requirements of the rule of natural justice has been considered by de Smith in his famous treatise on 'Judicial Review of Administrative Action' and I would like to cite a passage from page 163 as under "If a discretionary power is so wide that the merits of its exercise will in practice be unreviewable, why should this fact alone exempt the repository of the discretion from any obligation to listen to representa--tions before it acts? What has seemed obvious to many Judges becomes for more obvious upon reflection. There may be sound reasons for holding that in a particular context it will be undesirable or impracticable for a Court of law to engraft any procedural duty on to a wide discretionary power; but the mere fact that the discretionary power is very wide is inconclusive. The nature of power, the conditions under which it has to be exercise and its impact on the interests of individuals must all be taken into account.
Would one say today that because a public authority is entitled to make an order for the compulsory purchase of land on unreviewable grounds of national policy, it is therefore, entitled to a refuse to entertain any representations from persons who are going to be directly affected?
Fairness may still call for a right to hearing (albeit a hearing different in scope and character from that accorded by a Court of Law) despite the fact that the ultimate decision can properly be based on extra- judicial consideration."
22. Thus viewed from any angle the impugned orders attracted the rule of natural justice and in absence of an opportunity of hearing provided to the petitioners before the passing of the impugned orders, the orders are F clearly unsustainable in law and must be struck down. For the foregoing reasons, therefore, the impugned orders have been passed without lawful authority and are of no consequence.
23. In the result, we allow these petitions and quash the impugned orders, with no order as to costs.
24. By a short order these petitions were allowed by us for reasons to be recorded later and the foregoing are the reasons for the decision. s, A, A,Petition allowed.
PLD 1878 Karachi 630 Before Fakhruddin G. Ebrahim and Abdul Qadir Halepota, JJ HUSSAIN B UX-Petitioner versus DISTRICT MAGISTRATE, LARKANA- Respondent Constitutional Petition No. 53 of 1976, decided on 15th August 1977.
Sind Crimes Control Act (1V of 1975;- -- S. 14 (vi) read with Criminal Procedure Code (V of 1898), S. 561-A-Quashment of proceedings- None of acts of petitioner falling within cl. (vi) of S. 14 nor such acts having any nexus with allegations made against petitioner-A solitary incident, showing petitioner once drunk-Cannot bring his case within cl. (vi) of S. 14 of Act 1975-Proceedings quashed, in circumstances.
Mrs. Saitma Nasiruddin for Petitioner.
Abdul Hafiz Lakho, Addl. A.-G. For Respondent.
Date of hearing : 8th August 1977.