JUDGMENT MAULVI ANWARUL HAQ, J.-- This I.C.A, has been filed against the judgment dated 25.8.1999 by a Learned Single judge in Chamber of this Court, whereby W.P. No. 10504/1996 filed by the appellant has been dismissed.
2. According to the contents of the said writ petition the appellant appeared in the Intermediate Examination Annual, 1994 and secured 797 marks out of 110O and was placed In grade 'A'. A certificate dated 1.10.1994 was sent to her through post. On the basis of said certificate she applied for admission to MBBS Class Session 1994-95 and after the requisite proceedings she was admitted to the first year class in the Punjab Medical College, Faisalabad, against a special seat reserved for Pakistan Army quota (she appears to be daughter of a retired Army officer). Later the admission was adjusted against the seat reserved for under-developed area. She passed her first year MBBS Class. Meanwhile, her result was sent to the respondent Board for verification and the same was verified. On 20.3.1996 she was issued a show- cause notice by the Controller of Examinations of the respondent Board through the Principal of her College which notice she replied on 30.3.1996 with a request to give her sufficient time to prepare the reply. A reply was submitted ultimately on 2.5.1996. Thereafter repeated notices were issued to her and ultimately vide letter dated 4.6.1996 her Intermediate result was cancelled. She complained that sufficient opportunity had not been given to her to establish her innocence and to meet the charges made against her. The result of the said quashment of the result was that the Principal of the Medical College cancelled the admission on 12.8.1996. She complained that she was not confronted with any incriminating material and no chance was given to her to join the inquiry, if any.
3. The respondent Board filed a reply. It was stated that the appellant did pass examination but she had obtained 767 marks. She was accused of connivance with the concerned officials of the respondent Board to tamper the records to increase her marks from 767 to 797. It was explained that she managed to take away the answer book of Urdu paper A' from the office and after increasing the marks therein put the same back. The marks were increased from 50 to 80. It was then stated that the appellant never demanded to check the said answer book. Other allegations were denied. The Learned Single Judge heard the writ petition on several dates and vide the impugned judgment dismissed the same.
4. Mr. Zainul Abiddin, Learned counsel for the appellant argues that starting from the show-cause notice the entire proceedings were conducted by the Controller and not by the Chairman who was .Competent .Authority under the applicable Rules. Further contends that the impugned order of quashment of the result is violative of the law declared by the superior judiciary. Particularly brings to our attention the fact that the impugned order was suspended when the writ petition was taken- up for hearing on 24.4.1996 and remained so suspended till the decision of the writ petition. Upon filing of this I.C.A, the said impugned orders were suspended vide order dated 13A 0.1999 and the orders remained suspended. Meanwhile, the appellant continued her studies and had finally passed her said MBBS Examination. Dr. M. Mohyudddin Qazi, Learned counsel- for the respondents, on the other hand, argues that the mere fact that because of the interim orders of this Court the appellant has passed her MBBS Examination would not wash away the guilt which according to the Learned counsel, stood established. Further argues that in the circumstances of the case it would be advisable to refer the matter to the Chairman of the Board who is sufficiently authorised to give relief to the appellant. 4
5. We have gone through the records of the writ petition and the impugned judgment of the learned Single Judge. Before proceeding further we may here refer to a judgment of the Hon'ble Supreme Court of Pakistan, cited by the Learned couns el for the appellant, in the case of Vice- Chancellor, University of Punjab and 2 others v. Muhammad Zahur Nasir (1985 SCM R 802). Following excerpts from the leading opinion of Mr. Justice Zafar Hussain Mirza (as his Lordship then was) appearing at page 807 of the report, with reference to the case of University of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90) are reproduced hereunder:- "Notwithstanding the overriding consideration requiring the maintenance of discipline in educational institutions, the Court pointed out that the Tribunals functioning such institutions cannot be freed from the necessity of acting in a manner which excludes reasonable possibility of un-fair action being taken. There can, therefore, be no cavil against the proposition that the University Authorities are not required in the disciplinary proceedings to strictly follow the technical rules of evidence enjoined by the Evidence Act and the decision of the High Court does not proceed on the violation of any such rule of evidence, It cannot be disputed that notwithstanding the settled view that the disciplinary forums functioning in the educational institutions are not tied down to procedural requirements of a trial in a judicial or quasi-judicial forum, like administering oath or examining witnesses in the presence of the accused person or giving him facility of cross- examining the witnesses, the decision of such forum is nonetheless not sacrosanct if it is unfair or arbitrary."
While dealing with the contention raised on behalf of the Punjab University that a candidate who is beneficiary of a wrongful act done by the University staff must be presumed to have complicity in the wrongful act, their Lordship observed that there is no such general proposition that a presumption of guilt arises ipso facto from the fact that the candidate is the beneficiary of the wrongful act.
6. Now the show-cause notice issued to the appellant is Annexure C to the writ petition. We have already referred to the pleas taken in the written statement by the respondent Board as to the particulars of the alleged misconduct on the part of the appellant. Now the show-cause notice reads as follows:- iJJIMZ-y" /$* jjI$ j4L. Tr J.f'r* Jt?" -Jt 1,/Jj. Uj 2239 />j V j> 1 ciiJt' sJitfwp&'L. *1 * y 2-i^L 0>/LffaSsJvC J>I dC J/'.y {{Urdu text}} Perusal of the said contents of the show-cause notice would reveal that as stated in the written statement, the appellant was not even confr onted with the details stated therein i.e. The matter of removal of Urdu paper, the tamper and increase of numbers from 50 to 80 and placing back of the said paper in the Board office. The notice was responded on 2.5.1996 by the appellant (Annexure L) stating that according to the Gazette consulted by her, here result was shown as later on and after 2/3 months she received the certificate showing 797 marks. She denied the allegation of fraud, collaboration and alteration in the makers as base-less. She added that she had a brilliant record.
She topped the scholarship examination of 5th class in the entire Faisalabad Division. She was awarded the Presidential award for Primary Education; that she always got ' A' grade in all previous examinations. Vide letter dated 4.6.1996 (Annexure P) she was informed by the said Controller of Examinations that the allegations levelled against her have been proved and that it has been confirmed by the available record that she got her marks increased from 767 to 797 on the basis of fraud and forgery and as such her result has been quashed and the certificate has been quashed and the certificate has been cancelled: It may be noted here that in- between 2.5.1996 and 4.6.1996 three notices were issued to her (Annexures M, N and O) to appear before the Chairman. She responded vide Annexure Q on 22.6.1996 stating that a fresh date be given to her as she is innocent. Another letter was addressed by her vide Annexure R on 31.5.1996. The respondent Board alongwith its reply had filed a copy of arr application addressed by one Muhammad Salim of Toba Tek Singh received in the office of the Board on 18.10.1995 stating, inter alia, that result of Roll No. 2239 was shown later on; that this student had obtained 767 marks but thereafter got- 30 extra marks and certificate was issued accordingly. The said person then stated that his allegation would be borne out from ant examination of the answer sheets in juxta position to the award lists. It appears that apparently on the said application proceedings were started. Copy of the statement of the Sub-Examiner has also been appended. This statement was recorded on 21.11.1995 and according to this statement the said witness has stated that he did award only 50 marks but after changing the numbers the total has been shown as 80. Then there is a copy of statement of one Syed Hashim Raza, an Assistant Sub- Examiner who has stated on 10.12.1995 that the award list is bogus. Then there is a copy of statement dated 6.12.1995 of Ghulam Rasool regarding award list being bogus. Then there are copies of orders dated 26.12.1995 suspending Nazar Hussain, Assistant, Inter Branch and Muhammad Mushtaq, Junior Clerk, Secrecy Branch, Maqsood Ali, Record Lifter, Secrecy Branch.
7. An examination of the said documents would show that apparently the respondent Board was fully aware of the particulars of the alleged tampering with the records and the manner In which It was made. Still in the show-cause notice issued on 20.3.1996 the appellant was not- confronted with the said particulars. We may here refer to a notice dated 16.5.1996 appended with the reply of the Board at page 152 of the file of the writ petition. Now on 16.5.1996 the Controller of Examinations is addressing the appellant as follows:- "It was expected that you will reveal whole mystery of tampering of the record and preparation of the forged document with increased marks but you did not do so."
Now when one reads the said contents of the 'letter of the Controller in the light of the fact that all evidence was available and even the concerned personnel were suspended at least six months before the issuance of the said letter one wonders as to who has tampered with the .Records.
8. A copy of the answer sheet has also been appended. However, unless and until the said Sub- Examiner is examined in the presence of the appellant and she be 'allowed to cross- examine him, nothing turns on a simple reading Of the said document.
9. Even if the said evidence being relied upon by the respondent Board, and there is no doubt in our mind that the entire evidence was collected in the absence of the appellant and she was never confronted with the same, rather was never informed of the particulars of the allegations on the basis whereof her result was ultimately quashed, be taken on its face value, there is not an iota of evidence that the appellant was involved in the said alleged act of forget or tampering with the records.
10. Coming to the impugned judgment, we find with reference to the material placed on record by the respondent Board, already referred to by us above, the learned Single judge has recorded a positive finding that the appellant was guilty of fraud, In our humble opinion there is not an iota of evidence on record that the appellant in any manner was involved in what the Board states to have happened. No witness has stated that the tampering was done at the behest or with the complicity of the appellant. We may here refer to the following excerpts from the judgment of Hon'ble Supreme Court of Pakistan in the case of Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another (PLD 1971 SC 838) appearing at page 844:* "A mistake has obviously been found in the result of the appellant, as stated in clause (2) above, but must his result be quashed on that basis without any proof that this mistake was due to some culpable act on his part, It would be obviously unjust to hold that a successful candidate's result in the examination should be quashed ff a mistake has crept into that result on account of an arithmetical error deliberately or accidentally made by the functionaries of the Board. We are inclined to think that before the Board quashes the result of a successful candidate on account of a mistake in that result, it must be shown that the mistake can be laid at the candidate's door on account of some positive action on his part, unless the mistake so detected automatically reduces success into failure. In the case of the appellant, eyen by deducting the fictitiously inflated marks from his total he still get 533 marks and a pass in the second division. We have, therefore, come to the conclusion that on the facts and circumstances of this case, the Board's decision in quashing the appellant's result cannot be upheld as legally correct."
(Reference is to clause (2) of Rule 18 occurring in Chapter-V of Board's calendar (this is in pari materia with Rule 18 of the (sic) Board.
11. In the case of Abdul Janan v. University of Peshawar through Vice-Chancellor and others (PLD 1996 SC 709) Hon'ble Supreme Court took cognizance1 of the fact that the appellant before the apex Court had continued his studies under orders of the Learned Peshawar High Court and had ultimately passed the MBBS Examination. Considering the said fact their Lordships observed that they are not inclined to remand the case to appellate authority in the said changed circumstances. In this view of the matter we are not inclined to agree with the suggestion being made by Dr. M. Mohyuddin Qazi, Learned counsel fer the respondent to remand back the case to the Chairman for redecision.
12. For all that has been stated above this I.C.A, is allowed and resultantly the writ petition filed by the appellant stands accepted and the order dated 4.6.1996 quashing the result of the appellant is set aside. No order as to costs.