1992 PLP 1078 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.

The dispute in this appeal is whether appellant Abdul Aziz s/o Reza Muhammad Zehri, is entitled to admission in the Balochistan Engineering College, Khuzdar. It is common ground that the appellant is a permanent resident of Jam Shehir, Chishma Tehsil Zehri, District Khuzdar and seems to have pursued his entire education within the Province of Balochistan, except for one year, when he took admission in a college in F.Sc. at Tando Muhammad Khan (Sindh) and, passed that examination from there. When he applied for admission in the aforesaid Engineering College in Balochistan, against cane of the 9 reserved seats of District Khuzdar, his application was declined by the Selection Committee in terms of Para. 2.12 of the Admission Policy which reads as under: "2.12. A candidate who has passed Matriculation/F.Se. (Pre-Engineering) from outside Balochistan and fails to satisfy the Selection Committee about reasons being beyond his control for not studying in Balochistan shall be ineligible; provided." Being aggrieved by the refusal of admission by the authorities of the College the appellant challenged the validity of the decision in Constitutional petition before the Balochistan High Court which was however, dismissed by a Division Bench of that Court vide judgment dated 18th October, 1989. On a petition filed by the appellant this Court granted leave to appeal from the judgment of the High Court in order to consider whether in the circumstances of the present case, the petitioner being a teen-ager at the relevant time when he sought the admission in the First Year of F.Sc. in another Province, under the direction and control of his parents, should not be treated as one under compulsion and if so, whether such action was beyond his control within the meaning of the aforesaid Para. 2.12 of the Prospectus. It seems to us that the decision of the Selection Committee was communicated to the appellant by a letter, dated 11th October, 1989 -by the Director of Education (Colleges) Balochistan, Quetta (page 44 of the paper- book). A perusal of this letter shows that it only informs the appellant that his name was dropped by the Selection Committee in terms of para. 2.12 of the Admission Policy. No reasons were communicated to him and indeed there is nothing to show in the judgment of the High Court whether .the original record and proceedings of the Selection, Committee were summoned or produced for perusal to determine whether the explanation offered by the appellant was examined and rejected for reasons assigned by the Selection Committee. However, the High Court on its own examined the explanation offered by the appellant, which was that the appellant was a member of the Zehri tribe and due to a threat to his life, he apprehended danger if he continued his studies at Rhuzdar because of the tribal vendetta. Reliance in this behalf was placed by the appellant on an F.I.R. in regard to an occurrence in which one Hatim son of Mir Muhammad was injured. It was submitted that the said Hatim is the cousin of the appellant and in this way the family of the appellant was directly involved in a tribal scuffle, which was the immediate cause of the apprehension to the life of the appellant necessitating to move on to another Province for pursuing his education. The other document on which reliance before the High Court was made was a certificate issued by Sardar Sana Ullah Zehri, Chief of Jhallawan. The learned Judges upon examining the aforesaid documentary evidence and the explanation came to the conclusion that the appellant was trying to take advantage of a dispute between another sub-caste of the Zehri tribe which has no immediate connection with the family of the appellant and that in fact the appellant had obtained admission in the Government College, Khuzdar in F.Sc. where he continued his studies for one year during which time he apparently apprehended no breach of peace or danger to his life. It was 'stated that he had failed in the F.Sc. examination in Khuzdar. With regard to the tribal feud the learned Judges observed as under:-- "We have gone through the aforesaid documents as well as F.I.R. referred to by counsel for petitioner. Prima facie said Hatim who has allegedly been injured is Zarakzai, by caste as is evident from the F.I.R. whereas petitioner is a Bajoi which is a quite different sub-caste of Zehri. There is no evidence available that the F.I.R. and documents which have been annexed pertain to any family member or sub-caste of petitioner. It is noted that petitioner wants to take benefit of the tussle of a different sub-caste of Zehri tribe to justify his admission in the College. There is no material available on record which would lead us to the conclusion that in fact the petitioner or his family is involved in any tribal scuffle. In order to reach such conclusion further inquiry is to be conducted which we are afraid is beyond our jurisdiction while sitting in Constitutional jurisdiction." In assailing the judgment of the High Court, learned counsel for the appellant submitted that the decision of the Selection Committee was, arbitrary and whimsical. He urged that the learned Judges of the Division Bench had also misread the evidence produced in support of the explanation of the appellant, necessitating his migration from educational institutions at Balochistan to the one in the Province of Sindh, which was within the terms of the relevant para. 2.12 of the Admission Policy. In this connection, learned counsel referred us to the certificate of the Deputy Commissioner, Khuzdar certifying that due to apprehension to his life, the appellant had to study outside the Province of Balochistan. This evidence, according to the learned counsel, was not rebutted and ought to have been accepted by the Selection Committee as a satisfactory explanation within the aforesaid para.' We find force in the submission that in rejecting the explanation of the appellant the learned Judges of the High Court have misread the evidence produced in support of the explanation offered by the appellant. In this connection, reference may be made to the following details disclosed in the petition for leave to appeal at para. 5:-- "(i) After the untimely death of Sardar Doda Khan Zehri, misfortune and d calamity befell the Zehri tribe. For the succession a bloody struggle ensued. About 30 persons were killed including Sardar Rasool Baksh Zehri, in numerous bloody encounters in District Khuzdar and Quetta. (ii) The petitioner's father and his family were on the side of Sardar. Rasool Baksh Khan. Very close relatives of the petitioner namely, Hatim Khan s/o Naib Mir Muhammad and Noor Muhammad s/o Wali Muhammad were also murdered. A murderous attack also took place on the village (Jam Shehar) of the petitioner. F.I.R., death reports, challan and statements are Annexures `H, J, K, L, M and N'." Annexures mentioned hereinabove do relate to the alleged murder of Hatim Khan and Noor Muhammad. The certificate Annexure `T' (page 39-A of the paper-book) issued by the Tehsildar, Zehri contains the following statements:-- The truthfulness or genuineness of the aforesaid certificate which we have no reason to doubt supports the plea of the appellant that Hatim Khan was his nephew and Noor Muhammad was his uncle, both of whom were murdered in the above-referred to occurrence due to tribal blood feud. Therefore, the fact that the appellant belongs to the Bajoi sub-caste of Zehri tribe, whereas the deceased in the aforesaid occurrence was Zarakzai is no reason to hold that the dispute in connection with which those deceased were done to death has no nexus with the family of the appellant. It is very significant that the learned Judges have themselves observed that in this matter further inquiry has to be conducted. Obviously, it was for the Selection Committee to have probed into this matter and rejected the explanation only if it was found false. The other ground that prevailed with the learned Judges, namely, that for one year the appellant pursued his studies in the Government, College, Khuzdar in F.Sc. is also not per se sufficient to cast any doubt on the explanation of the appellant. The intensity and the urgency of the apprehension generated by a blood feud between tribes at a particular point of time so as to engender the necessary apprehension scaring a person to take protective measures, is a personal matter and we have not been shown any circumstances which negative the apprehension of the appellant at the particular time. We may also refer to the two certificates issued by Sardar Sana Ullah Khan Zehri, former M.PA. and Chief of Jhalawan who fully supports the explanation offered by the appellant for not pursuing his studies in Balochistan due to the blood feud during the course of which there was even fining made on the house of the appellant. Finally the Deputy Commissioner, District Khuzdar has also certified that the appellant entertained apprehension to his life due to the family feud with Zarakzai tribe. These certificates also show that subsequently re-conciliation was brought about between the two tribes. Accordingly, the argument of the learned Advocate-General that the act of the appellant to seek admission to the Engineering College at Khuzdar was inconsistent conduct with his explanation, is untenable. Upon the resolution of the disputes between the two tribes, the appellant has obviously ceased to be under any apprehension or danger to his life. On the legal plane it may be observed that the opening part of para. 2.12, making a candidate ineligible for admission to the Engineering College if he has passed his Matriculation/F.Sc. from outside Balochistan, is no doubt a prohibition and a part of the Policy governing the admission in the larger public interest and has to be strictly construed. However, the proviso that upon a satisfactory explanation regarding the reasons which impelled a student to pursue studies outside the boundaries of the Province of Balochistan, for reasons beyond his control, being a provision in the nature of remedial legislation, has to be liberally construed. In the light of these principles, the material brought on the record was sufficient for the Selection Committee to permit the appellant to apply for admission and consider his application as an eligible candidate. The learned Judges of the High Court ought to have held so and we, therefore, allow this appeal and set aside the impugned judgment of the High Court and declare the decision of the Selection Committee refusing admission to the appellant as without lawful authority and of no legal effect. We direct that subject to the satisfaction of the other requirements of the rules or regulations for admission, the appellant shall be granted admission in the first year Engineering Course in, Balochistan Engineering College, Khuzdar. In the circumstances of the case, we make no order as to costs. AA./A-889/S Appeal allowed.