KARAM ELAHEE CHAUHAN, J.-Miss Salma Attaullah (hereinafter called the student/respondent) appeared in pre-medical (Annual) (1977) Examination of the Board of Intermediate and Secondary Education, Peshawar, with Roll No. 412. Her paper for Physics Part II was marked by the sub--- examiner in which as the answer book which was produced before us shows she got first division marks. The said answer book was thereafter sent in routine to the head-examiner, Mr. Muhammad Yar Khan who noticed that the answer book was stitched with a thread and bound with gum, which suggested that some sheets may have been changed. According to the head-examiner the marks shown as obtained by the student on the front "awarded sheet" of the answer book appeared to be erased. He accordingly r submitted a report to the Controller of Examinations on 17-12-1977, suggesting that answer sheets appeared to be changed. After some office scrutiny a charge-sheet was issued to the student who was asked to appear before a disciplinary committee on 8-1-1978.
At this stage it may be mentioned that the charge-sheet alleged violation of rule 8 (v) of the relevant Rules of Part II of the calendar of the Board which dealt with making of deliberate previous arrangements to cheat in the examination. The charge--sheet gave no basic and factual grounds and simply reproduced the wording of the aforesaid rule. The student appeared-(though she filed no written reply)-and was interviewed by the disciplinary committee. According to the learned Advocate-General she was shown the answer book though the finding of the High Court is that no such answer book was shown to her. The learned Advocate-General has further submitted that at that time she was told that she bad approached the sub-examiner Mr. Falak Sher for smuggling certain sheets and change in "front award sheet" of the answer book. She denied the verbal accusation so put to her and as there was nothing on record to sustain the said accusation, the disciplinary committee decided that statements of the various members of the staff of the Hall/or Centre where she took the examination be recorded. This was done and statements of certain staff were recorded at her back. After that the committee again at her back, appointed one of its members, namely Mr. Nazir Tilla to record the statements of the sub-examiner and the head- examiner. Mr. Nazir Tills interviewed the aforesaid officials and took down their statement again in the absence of the student and submitted his report on 21-1-1978. On the basis of the aforesaid material the disciplinary committee without hearing the student and without showing her that material passed an order on 24-1-1978, disqualifying her for appearing in Annual 1977 examination as also in Annual 1978 and Supple--mentary 1978 examinations.
2. The student/respondent filed an appeal before the Jury of Appeal but without any success as the same was dismissed on 11-2-1978.
3. In the circumstances the student/respondent filed a writ petition being Writ Petition No. 217/1978 which was accepted by a learned Division Bench of the Peshawar High Court on 13-5-1978.
4. The learned Judges held that all the evidence above-mentioned was recorded by the authorities concerned in the absence of the student and therefore her punishment on such an ex parte material or record was illegal. The entire record was produced before the High Court during the hearing of the writ petition with reference to which the student (of course through her counsel) tried to prove the case as pleaded in the writ petition that the entire matter was ragged by Mr. Yar Muhammad Khan to a male fide manner as he was on inimical terms with her father who was also teaching physics and that all the aforesaid proceedings were arbitrary, one-sided without evidence and against the principles of natural justice. The High Court attended to this matter and after persuing the record held that the case against the student was in fact not based on any sufficient material and as such the orders passed and proceedings taken were all without lawful authority and of no legal effect against her.
5. The Board of Intermediate and Secondary Education and other (official) petitioners have come up in a petition for special leave to appeal against the same to this Court.
6. Learned Advocate-General on the factual aspect of the case as above--stated was unable to point out any mistake in the order of the High Court or any ground to defend the order of the disciplinary committee; and the procedure of collecting the evidence against the student in an ex parte manner in a secretive form. His only contention was that despite the aforesaid defects the High Court should not have made an observation or recorded a finding that "the case against the petitioner was not based on sufficient material". After noticing the various illegalities, it was submitted, the High Court should have stopped at declaring the impugned orders to be without lawful authority and should not have made any observation as mentioned above.
7. We have attended to the contention of the learned Advocate-General but find no merit in it. The actual passage to which exception was being taken occurred on page 10 of the judgment of the High Court which reads as follows :-- "On this view of the matter we hold that there is not only violation of the principle of natural justice but also that the case against the petitioner was not based on sufficient material but rests on suspicion without there being any legal proof and the punishment was not called for in the circumstances of the case. We accept the petition, set aside the impugned orders disqualifying and debarring the petitioner from appearing in the Annual 1977 and Annual/Supplementary 1978 Examination, being without lawful authority and of no legal effect, with no order as to costs."
It is obvious that in the portion preceding the aforesaid passage the High Court had expressed its view on the merits of the matter before it. The held after going through the entire record (a) that the charge-sheet contained no factual base and narration of events for the charge but simply contained an accusation which was nothing but a bare reproduction of the rule, (b) that the Department also was not sure as to at what stage and time the answer book was sewed and gummed which were the only (basis to initial the case), (c) and speaking for ourselves the sewing and gumming rather excluded the possibility of smuggling any answer sheet instead of proving any such allegation), (d) that they started to collect the material after the charge-sheet (e) that the whole answer book was in the handwriting of the student and there was no evidence worth the name to show smuggling of any sheet at any stage, and (f ) that the material collected also showed or prove nothing. The entire material was with the learned Advocate-General. He could not demonstrate before us with reference to that material that it brought home any offence or fault on the part of the student. It was in this context that the passage to which exception now is being taken is to be read. It is to be remembered that in the petition the allegation of arbitrariness and male fide of the entire proceedings had been made. High Court in the circumstances was justified to attend to that aspect of the case and to observe that on the material produced before it, there did no exist any case or any sufficient ground which could have been made the basis of any disciplinary action or inquiry against the student concerned. (We may observe that the original answer book was shown to us by the learn Advocate-General and its bare perusal showed that it contained no sign of any erosion of the marks on the front "marks sheet" nor of replacement of any other type). The observation of the High Court in the context above--mentioned cannot be said to be in excess of their jurisdiction and rather it was one of the reasons and grounds for holding the impugned order and the proceedings to be without lawful authority. It was a finding of the type which Courts generally record in relevant cases for example that "the charge was groundless" or that the punishment was based on "no evidence".
8. The result is that this petition has no merit and is dismissed.