DOST MUHAMMAD KHAN, J.---Miss Shakeela, the petitioner herein, has impugned through the instant writ petition the act of the respondents in failing her in the paper of Minor Acts of LL.B. (Part- III). Her efforts to pursuade the respondents i,e, the University of Peshawar and its Controller of Examinations to get re-check/re-examine- for re-evaluation of marks through any independent/impartial examiner of high standard and caliber proved futile. According to her she has got a sound and convincing percentage of marks in all the rest of the papers and her academic career throughout is equally sound and convincing one. The petitioner has further expressed suspicion of foulplay having been pressed into service in failing her in the ibid paper.
2. The instant writ petition came up for hearing before the Court on 13-11-2002 and after hearing Mr. M.Sardar Khan the learned counsel for the petitioner at some length it was deemed appropriate to direct respondent No,2 the Controller of Examinations to appear in person alongwith the paper in question and on 19-11-2002, the next date so fixed, Dr. Muhammad Iqbal the Controller of Examinations appeared in person and produced the original Answer-sheet of the petitioner which was duly examined in the presence of the Controller and the Court was convinced that the marks given to each question answered were not only disproportionate but the same were also inadequate as all the questions have been answered in a fair manner by the petitioner and in accord with the definition contained in the relevant statute law. We'did not find a minor discrepancy in it and the said position was also impressed upon the Controller who did not take any exception to our assessm ent and, therefore, realizing the shortcomings and unreasonable marking so made against each answer given to the questions contained in the question paper he undertook that the petitioner's case after consultation with his high-ups would be referred to an impartial and competent examiner for re-checking/re-evaluation of marks so that complete justice is done to the petitioner. Such undertakings given were with the view that any order from the Court in this regard would not be in the interest of the institution as the same might not open a channel for all failed students' so there will be no end to making of complaints and applications by such other students for the same relief and the Court perceiving the implications of any such order, approved the suggested settlement within the Faculty, therefore, no express order was passed in this regard and the time requested for the needful was, therefore, granted and the case was posted to 27-11-2002.
3. On the adjourned date i,e, 27-11-2002 the Controller despite of undertaking given did not appear in person but has sent one Muhammad Zubair a representative, who contrary to the position explained above claimed that the respondents may be allowed time to submit written statement as they have made up their mind to contest this writ petition, therefore, time was allowed for submission of the written statement and the case was posted ' to 10-12-2002 i,e, for today.
4. We have heard both the learned counsel for the parties and have also gone through the comments submitted by the respondents which are drafted in a stereo-type manner and nothing substantial is pointed out to justify its refusal for re-checking and re-evaluation of the said paper of the petitioner.
5. No doubt since long the policy of the Courts including the apex Court which remained consistent was not to interfere in such-like matters so that the academic life and system of such institutions is not disrupted/disturbed and always the matter was left to the good sense and judgment of the institution(s) in such-like cases and invariably the internal assessment/marking so made was given preference despite of loud cries of genuinely aggrieved students but with the passage of time the reckless and negligent approach/attitude of the academic institutions in such-like matters has resulted into pouring of complaints which has become frequent phenomena wherein serious allegations of foulplay, mis and non-marking are alleged. We have before us a short order of this Court in W.P. No,697 of 2002, decided on 17-10-2002 which is reproduced in support of the above view which runs as thus:-- "KHALIDA RACHID, J.--The learned counsel for the petitioner submits that initially the petitioner was given 'zero' marks in the Algebra paper, however, on re-checking the petitioner was declared to have obtained eighty-six marks out of hundred marks and thus the instant writ petition has become infructuous as it has served the purpose. The writ petition is, therefore, dismissed as having become infructuous with the observations that such recklessness on the part of the University Authorities is highly deplorable.
(Sd.)
Khalida Rachid, J.
(Sd.)
Shah Jehan Khan, J."
Thus in genuine cases the Court cannot fold-up its hands leaving the fate of an aggrieved student to hang high and dry in the air and at the mercy of the people who indulge in reckless dispensation of duties.
7. The objection of the learned counsel for the respondents that in such-like matters relevant rule of the University does not permit the rechecking and re-evaluation of the marks, therefore, this Court cannot grant the prayed relief, this plea if not misconceived, held is also not wholly well-conceived one and the said bar cannot be taken as a stumbling block nor it can operate an absolute one in the way of this Court when seized with such a matter in its writ jurisdiction nor the respondents can be permitted to clad itself with the said barring rule after committing wrong and causing injustice to a student by putting her/his academic career in jeopardy. Under the University Act itself as the preamble explains the basic and fundamental obligations of the respondents is to impart education and not to impede the same, therefore, the present one is one of those very rare cases wherein despite of such barring provision relief as prayed for cannot be refused otherwise this Court will endorse an action which is in disregard of law as well as principle of justice, fairplay and rules of propriety and that too at the cost of fundamental rights of a citizen which course we would not permit at any cost whatsoever because the centuries old principle which is old as hills are "that late justice prevails though the heaven would fall". Therefore, such objection is absolutely unsustainable in the facts and circumstances of the instant case.
8. In view of the uncaring and lethargic attitude of the concerned staff of the academic institution charged with a noble task of giving to a student what is his or her due, therefore, with each and every passing day, the Court duty is becoming onerous and obliging one, therefore, in exceptional cases like the instant one the bar contained in the relevant rule shall not thwart in any manner the grant of a relief to a genuinely aggrieved citizen whose case is otherwise established for grant of such relief. However, required degree of care and caution as well as restraint must be exercised so that excepting very rare and genuine cases, frequent interference is to be avoided by the Court.
However, the Court is required to chisel out the apparent bluntness of the authorities which they have shown in the present case for ensuring and securing fairplay and justice.
9. Even the august Supreme Court in the case of Abdul Hakim Hashmi v. Federal Public Service Commission reported in Pakistan Supreme Court Cases 2002 at page 404, called the examiner of the paper along with Director (Secrecy), Public Service Commission and the Deputy Attorney- General along with the answer-sheet to satisfy itself as to whether the marks given to the petitioner therein were based on correct evaluation and assessment or it was otherwise. Therefore, in the instant case when we ourselves have gone through the answer-sheet of the petitioner in the presence of the Controller who is respondent No,2 in the present petition And were adequately satisfied with the performance shown by the petitioner and found the marks given to her to be inadequate which fact too was conceded by the Controller and undertook to remedy the wrong but backed out after consultation with the department concerned, therefore, we are left with no alternative whatsoever but to invoke our writ jurisdiction in the matter so that the ends of justice are fairly and fully secured.
10. For the above reasons, therefore, we allow this writ petition and direct the respondents to get re- examine the answer-sheet of the paper of Minor Acts (Part-Ill) taken on 16-4-2002 by the petitioner, through a highly qualified person of outstanding academic career for re-assessment and reevaluation of marks strictly on the basis of merits and preferably the paper be entrusted for the said purpose to the Principal of Khyber Law College, who is a senior most academician of the foulty and is reported to be a man of high integrity. We would also direct that the person who is entrusted with the said duty whether the named one or otherwise must do justice to the petitioner in all probability and shall remain uninfluenced by the marking already made by the previous examiner. The needful should be done within a period of one month at the most and result thereof be communicated to the petitioner without any delay. Writ petition accepted.