1997 PLP 1524 (CLC)

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Karim Bakhsh petitioner has prayed for a direction to the respondents to cancel the result showing him 'fail' in Paper VI of LL.B Part I, being illegal and without jurisdiction and to declare him successful therein and then after issuing a result card in this behalf allow him to appear in the forthcoming LL.B Part II Examination.

2. The facts, relevant for the disposal of this writ petition, briefly stated, are that the petitioner joined the LL.B Class of the Islamia University Bahawalpur in the year .1994. He appeared in the Annual LL.B Part I Examination held in March 1996 under Roll No. 151 but failed in Papers I and VI. He again appeared in the supplementary examination held in August 1996 under Roll No.83 and as per the result card issued on 17‑12‑1996, he has been shown as 'fail' in Paper VI and has been allowed to reappear in the said paper in any two chances till Supplementary Examination 1997. According to the result card, Copy Annexure A at page 7, the detail of marks obtained by him in each paper is as under:‑‑ PAPER MARKS OBTAINED I‑Jurisprudence 40/ 100 II‑Law of Contract 45/100 III‑Islamic Jurisprudence 55/100 IV‑Law of Torts and Easements 45/100 V‑Criminal Law 47/100 VI‑Constitutional Law F/100

3. The petitioner, however, claims that an inquiry made by him reveals that he could obtain 35 marks in Paper VI which would give him a grand total of 267 marks in the said examination. He moved the Controller of Examination Islamia University, Bahawalpur and also the Vice‑Chancellor of the said University through separate applications (Copies Annexure C & D) reproducing therein Regulation 5(i) of the Regulations pertaining to LL.B Part I Examination (new three years course), Copy Annexure B, and requested that in view of this Regulation, he be declared successful in the said examination; but without any response. Alleging that the marking in Paper VI was extremely harsh/strict and if he is allowed 6 marks in this paper, his aggregate would automatically exceed 270 marks and he would become eligible/entitled to sit in the forthcoming LL.B Part II Examination, he has come to seek necessary relief from this Court.

4. Respondent No. l has submitted his parawise comments, on the direction of this Court, in which it has been maintained that the case of the petitioner is not covered under Regulation 5(i)(a) but under 5(i)(cj and he requires at least 5 marks in Paper VI and also 3 marks in aggregate to be declared "pass" which cannot be allowed to him under the said Regulation. 5. 1 have heard the learned counsel for the parties and have given my earnest consideration to the facts of the case in the light of the precedents cited at the Bar, Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property (PLD 1964 (W.P.) Lahore 274), Messrs Hamdard Dawakhana v. Commissioner of Income Tax (PLD 1980 SC 84), S. Maruf Ahmad All v. Punjab Public Service Commission (PLJ 1985 Lahore 426 `DB'), Punjab Public Service Commission v. S. Maruf Ahmad Ali (PLD 1988 SC 356) and Zubair Ishtiaq Qureshi etc, v. The Chairman of Academic Council and Principal of Sindh Medical College etc. (1993 CLC 1675) by the petitioner and Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan (1993 SCMR 1905) and Asian Food Industries v. Pakistan and others (1985 SCMR 1753) by the respondents besides referring to PLD 1988 SC 356.

6. Regulation 5(1) reads as under:... "5(1) Every candidate, in order to be deemed to have passed this examination whether taken in let Annual or 2nd Annual, shall be required to obtain at least forty per cent. of the maximum number of marks allotted to each paper and with at least forty‑five per cent. in the aggregate. Provided that a candidate shall be deemed to have passed if he (a) fails in any individual paper by a margin of not more than 5 marks; (b) fails in the aggregate by a margin of not more than 5 marks; (c) fails in more than one paper by a margin which can be made up by distribution of up to five marks over the papers/aggregates in which he fails."

7. The learned counsel for the petitioner have urged with vehemence that a careful and minute perusal of the proviso td Rule 5(i), referred to above, makes it abundantly clear that the benefit given to the students failing in any paper by a margin of not more than 5 marks shall also be entitled td have the same benefit in the aggregate and if this principle is allowed iii the case of the petitioner, he shall be deemed to have passed the examination acrd shall be eligible td appear ire the forthcoming examination of LL.B Part 11. 8, '1 'he learned counsel for the respondents has, on the other hand contended that this id not at all the intend n of the Rule/Regulation malting authorities arid even if the petitioner is allowed the benefit of 5 marks in Paper VI to enable him to be deemed to have passed in the said paper, his aggregate would retrain 267, He has also placed before the a list of B candidates who are =fail' in one paper but their aggregate is complete for quall fying them to be deemed td have passed under clause 5(i)(a). Another list of hL,13 Part It Supplementary Examination 1995 has also been placed for perusal of the Court according to which although two candidates were ' pass' in all papers by getting 40% marks but the aggregate was less than 45% (total 315) and since they were short by 5 and 3 marks only, they were also deemed to have passed under clause 5(i)(b).

9. In PLD 1964 Lahore 274, the terms. "vesting" of property in custodial and "treating" such property as evacuee were interpreted and it was held that overt act in respect of some specific property was necessary before word "treating" could be used with regard to it and there was vast difference between "vesting" of property and "treating" such property as evacuee property. By referring to this judgment and to PLD 1980 SC 84, the learned counsel for the petitioner assert that the regulation referred to above, should be interpreted as a whole and the petitioner should be allowed a margin of 5 marks in his Paper VI and also in aggregate. According to them, the petitioner requires only 3 marks in aggregate for declaring him pass. They have then sought support from what has been laid down in PLJ 1985 Lahore 426 (DB) confirmed in PLD' 1988 SC 356 and have urged that these 5 marks are to be added to the total and reflected therein. 1993 CLC 1675 has been pressed into service for contending that doubts as to the interpretation of statute, if any, are required to be resolved in favour of affectee.

10. The learned counsel for the respondents has, in reply, taken me through the judgment of Hon'ble Supreme Court PLD 1988 SC 356 for asserting that the interpretation of the rule regarding grant of grace marks was, as clarified in the said judgment, only for purpose of the competition and the appointment simplicitor as a result thereof, as observed in pare. l I (ibid).

11. Pare. 9 of the said judgment reads as under:‑‑‑ "9 It is true that the rule itself does not specifically gay that when granting the marks there under in respect of an individual subject they shall also be added in the aggregate, but as thought by the High Court; the language of the rule clearly implies that if the marks are granted for are individual subject, the said subject being a part of the aggregate f subjects, would carry the added marks for the counting of the aggregate marks also. This by itself, we agree, would not be sufficient to uphold the High Court Judgment."

12. In 1993 SCMR 19 5, it was held that when a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on assumption that in fact it did trot exist at the relevant tune but by a legal fiction Court has t assume as if it did exist. Similarly it wad held that when a statute enacts that something shall be deemed to have beets done which in fact and in truth was not done, the Court is entitled arid bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to.

13. The point in issue considered in the light of the arguments addressed at the Bar and the precedent cases, leads the to one and the only conclusion that deeming clause proceeds only on the assumption and creates only a legal fiction. I am not at all impressed by the argument of the learned counsel for the petitioner that by allowing a margin of 5 marks to the petitioner in Paper VI, his aggregate would automatically go up to 272 and being ' pass' , he shall be eligible for appearing in the forthcoming LL.B Part lI Examination. With utmost regard to what has been laid down in PLJ 1985 Lahore 426 (DB), I am of the considered opinion that the said dictum cannot be of any avail to the petitioner in the circumstances explained above and the notional grant of 5 marks in Paper VI to the petitioner would not help him in aggregate. It would have been totally otherwise, had he passed in, all the papers by securing/obtaining at least 40% marks in each individual paper but had fallen short in aggregate by three marks. In that event he could very well claim the grace provided in clause (b) of the proviso. Similarly, had he fallen short by one mark or two in more than one papers and also in the aggregate, he could very well claim the distribution, of not more than 5 marks in all, over the papers/aggregate, as the case would have been. He, however, cannot simultaneously claim, under this deeming clause, two benefits: (i) to enable him to qualify in Paper VI by 5 marks and (ii) to qualify him in the aggregate by awarding him another 3 marks. This notional grant of marks to enable him to pass in Paper VI cannot be added in the aggregate nor even in the marks so secured in the said paper and it shall remain a legal fiction. For all these reasons, I find no merit in this writ petition and the same is accordingly dismissed with no order as to costs. A.A./K‑26/L Petition dismissed.