P L D 2004 Lahore 448 (PLP)

(iv) That the pendency of a criminal case, or even a verdict of acquittal, cannot be a ground for restraining the Board from taking action against a candidate guilty of unfair means. The decisions reported as Syed Amir Ali Shah and others v. Islamic University, Bahawalpur 1998 CLC 1941, Nasir Saeed's case (supra) and Muhammad Yasin v. Chairman, Board of Intermediate and Secondary Education, Sargodha 2000 CLC 885 have been referred to in support of this contention. (v) By relying on Muhammad Naveed Akhtar v. The Vice-Chancellor, University of the Punjab and others 1999 MLD 2288 and Malik Habibur Rehman v. Siddique Ahmed Khan PLD 1972 Lah. 8 it is contended that while exercising the Constitutional jurisdiction this Court cannot arrogate to itself the functions of a Court of appeal to determine the sufficiency or adequacy of evidence or its high credibility. (vi) That the improvement of status by a candidate can be of no avail to him when the monument of success is erected on fraud/misrepresentation. In support of this contention, reliance is placed on Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education, D.G. Khan 1999 YLR 1019, Farukh Din v. Government of Sindh PLD 2000 Kar. 154 and Mst. Jarneela Kausar v. Board of Intermediate and Secondary Education 2003 SCMR 153. (vii) The decision of the then Chief Justice of this Court whereby (1) Writ Petition No.23210 of 1997 filed by Imran Riaz, (2) Writ Petition No.23211 of 1997 filed by Shahzad Nawab Khan and (3) Writ Petition No.2811 of 1997 filed by Ambreen Imtiaz, who were candidates at the same examination and against whom similar allegations were levelled, were dismissed, have been relied upon to contend that persons placed in similar circumstances should be dealt with alike.

6. In Virasat Ullah v. Bashir Ahmed, the Supreme Court refused leave against the decision of the High Court holding that mere issuance of notice by the Settlement Commissioner calling upon the petitioner, claiming to be the transferee of an industrial unit, to justify the transfer, could not furnish a basis for a Constitutional petition. A show‑cause notice issued the petitioner, a civil servant, in the case reported as Muhammad Mahmood Ali v. Pakistan was challenged through Writ Petition before the Peshawar High Court and a Division Bench of that Court held that the petition was not only premature, but the petitioner had alternate remedy against the final order, when made, before the Service Tribunal. In National Steel Rolling Mills v. Province of West Pakistan, an opinion rendered by the Labour Department on a query raised by the Director of Labour Welfare whether a subsequent notification on the subject automatically cancelled the prior notification was inter alia made basis for filing a Constitutional petition in the High Court on the apprehension that based on that opinion the Government might enforce the first notification fixing minimum wages for workers of all kinds employed in the Steel Re‑rolling Industry from the date of its issue till it was superseded by the second notification. By holding the pursuant to the said opinion no decision having been taken by the Government, the Writ Petition was not competent, being premature and possibly an attempt to anticipate any action that the workers might take to enforce their claim for arrears on the basis of the notification in question. In Shagufta Begum v. The Income Tax Officer, the proceedings arose out of a notice issued by the Income‑Tax Officer to the petitioner‑assessee to show‑cause why the assessment should not be re opened to terms of section 65 of the Income‑Tax Ordinance. The Supreme Court upheld the decision of the High Court dismissing the Writ Petition, by observing that the petitioner should in the first instance, approach the departmental forums, and also to pursue the normal channels of appeal/revision/reference to the higher departmental forums. In Mir Nabi Bakhsh Khan Khoso v. Branch Manager, NBP, the petitioner was a guarantor to the grant of a loan, and feeling aggrieved by a notice issued by the Bank for recovery of loan, approached the High Court in Constitutional jurisdiction for issuance of a writ in the nature of prohibition which having been dismissed, he approached the Supreme Court. Leave was refused by observing inter alia that the remedy of writ was premature because no adverse action had been taken against the petitioner. Here, the case of the Board itself‑'is that during pendency of proceedings in this Court, charge‑sheet was served on the petitioner and the Committee constituted for the purpose of enquiry has given verdict against the petitioner. It is, therefore, not a case of apprehended action, rather where proceedings have reached almost logical conclusion. It is settled law that developments taking place during pendency of lis cannot be excluded from consideration, rather notice should be taken thereof. In the circumstances, the objection to the maintainability of the first petition fails and is hereby repelled.

7. So far as the case‑law cited in support of the other contentions is concerned, reference may be made to ratio decidendi of each case in order to determine whether the same can be applied to the facts of the present case. In Masood Pervaiz v. The Disciplinary Committee, University 'of the Punjab, Lahore, the candidate was found to have smuggled into, for substitution in place of the original answer books, sheets which were not in his handwriting. Relying on an earlier decision in Ahmad and 3 others v. University of Engineering and Technology PLD 1981 SC 464, it was held that it raised a strong presumption against the candidate and that the quantum of material for reaching a finding of fact was within the exclusive field of the authorities concerned and that the High Court had rightly refused to interfere. Thus, there was material available against the candidate connecting him with the commission of unfair means. In Akhtar Ali v. University of the Punjab, result of the appellant, who had appeared in the M.B., B.S. (Final) Examination, was withheld for his failure to have deposited fee in full. In a subsequent Notification, the appellant alongwith two other candidates, was shown to have passed, when the notification was brought to the notice of the Principal, K.E. Medical College of which the appellant was a student, he found that the signatures on the notification were not legible and, therefore, he made a reference to the Controller of Examinations to verify the authenticity of the notification. In reply, the Controller informed the Principal that the notification was forged and that the result of the appellant stood withheld due to non‑payment of fees. The appellant on being confronted and having shown cause, the Principal, it appeared, felt satisfied and made a reference to the Controller to declare result of the appellant. Even a reminder issued by the Principal having not been heeded to by the Controller, the appellant filed two writ petitions in the High Court. During the pendency of the second writ petition, the appellant was served with a notice by the University to show‑cause why action be not 'taken against him for having stage managed the issuance of a fake and forged notification showing him to have passed the final M.B.,B.S. Examination. After following the requisite procedure, the University, by way of punishment, disqualified him for three years. The appellant challenged the action of the University by filing yet another writ petition which having been dismissed, the appellant approached the Supreme Court. The appeal was dismissed, amongst others, for the reasons that the appellant had first appeared in the M.B.,B.S. Final Examination in 1973 and failed; thereafter he re appeared in the Supplementary Examination held in 1973 but again failed, and finally when he appeared in the Supplementary Examination held in 1974, his result was withheld owing to non‑payment of fees; that instead of depositing the fees, he manoeuvred a fake and forged notification showing him to have passed; that he had furnished two explanations, one in Urdu and the other in English and both were contradictory to each other, and that, therefore, it could not be said that it was case of no evidence. In the instant case, the plea of the petitioner is that there is not an iota of evidence in support of the allegations of the Board. In Muhammad Nadeem Anwar and others v. Islamic University, Bahawalpur and others, five candidates were proceeded against on the ground that they had managed replacement of nine pages of their answer books, and that the substituted sheets were not the same as were made available to them in the examination hall which allegation was based on various visible factors, including the reasons that the signatures of the Secrecy Officer at the end of the answer sheets were also bogus. It was in these circumstances, held by a learned Single Judge of this Court that the petitioners being direct beneficiaries of the substituted sheets, they could not escape liability. In Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore, 1977 SCMR 213, the Head Examiner inflated appellant's marks, manifestly for benefit of the appellant and on his inducement, though the Head Examiner, was not competent to increase or decrease marks assigned by the sub‑examiners and in case he thought that the candidate was entitled to more marks, he should have referred the matter to the Chairman who, under the relevant rules, was to appoint a third examiner or refer the matter to committee of courses for decision, subject to final approval by Chairman. The Writ Petition filed by the appellant having been dismissed by the High Court, he approached to Supreme Court, but failed. Thus, it was a case where the act of the Head Examiner in inflating the marks could not be of benefit to any other person except the petitioner. In, Board of Intermediate and Secondary Education, Sargodha v. Muhammad Rafique, the respondent was an examinee of F.A./F.Sc. Examination held in September, 1977. When the examination of two papers 'A' and 'B' of Chemistry was yet to be held, secret information was received by the Board that answer books of certain candidates were being replaced/ substituted at a particular examination center. The Controller of Examination deputed an official of the Board to collect the scripts of the candidates directly from the center and bring‑the same to the office of the Examination Branch of the Board. It was done and papers were got examined from the examiners to the normal course. It was detected that 19 candidates who had faired very well in all other papers earlier held had done miserably in the two papers 'A' and B' of Chemistry which had been collected directly from the center. The wide gap between their performance led to further enquiry and it was found that their earlier scripts did not bear the authorized genuine signatures of Deputy Superintendent of the Examination Hall. By serving charge sheet on the appellant of the precedent case, he was then confronted with the offending material and after proper enquiry he was disqualified from four examinations. His Writ Petition having been accepted by the High Court and the Board having failed before the I.C.A. Bench, approached the Supreme Court which allowed Board's appeal, by observing as follows:‑‑ "

8. The appeal Bench of the High Court has gone by the proof of actual forgery of the signatures. That was not the matter in issue. The matter in issue was whether genuine scripts of the candidate have been evaluated by the examiners in the earlier papers. The respondent himself was the beneficiary of the malpractice. His participation in it has to be assumed just as a person in possession of the stolen goods soon after the commission of an offence of theft is saddled with incriminating knowledge. In such cases to insist upon a direct evidence is to ask for the impossible. Such cannot be the demands imposed in domestic enquires relating to educational institutions where undeserved benefits obtained by fabrication, forgeries or substitution of records have to be attended to.

9. In rendering the judgments the value system prevailing in the society should not be disturbed on technical grounds, It was obvious as a result of the enquiry starting from the complaint to the evaluation of the scripts that the result could not stand and it suffered from an inherent taint which nothing could sanctify. In such a situation, the quashment of the result should not have been interfered with. None of the Courts have doubted the fact that the scripts, those that were earlier evaluated, were non genuine. The only question to which the Courts addressed themselves was whether the respondent was afforded adequate meet the allegations and whether he was personally responsible/liable for such substitution which was found to exist as a fact. On that depended the penal part of the order disqualifying the respondent from future examination." In Salman Riaz Chaudhry v. Board of Intermediate and Secondary Education, Lahore, the candidate had initially not attempted a question and had secured 36 marks as per the award list sent by the Head Examiner to the Board. At some later stage, the question had been attempted in the answer book at the place originally left blank in the answer book but had been crossed in red ink, and consequently the marks had also been inflated from 36 to

46. It was in these circumstances that a learned Judge of this Court declined to interfere with the punishment awarded to the petitioner by the Board authorities. In Haider Ali v. Board of Intermediate and Secondary Education, the petitioner who had appeared in the Intermediate Annual Examination. 1997 and declared successful, applied for re‑checking of Physics papers `A' . The Chief Secrecy Officer found that the marks obtained by the petitioner inside the answer sheet did not tally with awards given in relevant column on top of answer‑sheet. Smelling foul- play, all remaining papers of the petitioner were re‑checked, and it was found that of eight other papers answer‑sheets were bogus inasmuch as the same had not been printed or issued by the Board. The petitioner was proceeded against for having employed unfair means and was c; consequently disqualified for three years to appear in any examination. His appeal having been dismissed, the petitioner filed a Constitutional petition in this Court which was dismissed by observing that it was not denied that answer‑sheets with regard to which action was taken were in petitioner's own handwriting and bore his own roll number and he being admittedly beneficiary could not absolve himself of being privy to malpractice. In Syed Amir Ali Shah and others v. Islamic University Bahawalpur, the admission of the petitioners in the University had been suspended and a fine of Rs.1,000 each was imposed on them. One of the petitioners was ordered to be under observation for a period of one year. The order of the University was challenged mainly on the ground that the criminal case got registered against the petitioners was sub judice and that the misconduct alleged against them was committed outside the precincts of the University. The Writ Petition was dismissed by repelling both the contentions. It was not a case of unfair means and being distinguishable on facts, has no application to the facts of the present case. In Muhammad Yasin v. Chairman, Board of Intermediate and Secondary Education. Sargodha, the petitioner's result of Matriculation was quashed after he had been caught committing the act of impersonation and he made a confessional statement. The action by the Board was assailed on the ground that in the criminal case got registered against the petitioner had had been acquitted. The contention was repelled by observing that acquittal of the petitioner by the criminal Court did not debar the Board from coming to its own findings and conclusions, in the presence of the confessional statement of the petitioner himself made at the time he was caught impersonating himself. Here, there is no admission of the guilt. Moreover, the facts of the present case are poles apart from those of the precedent case. In Faiza Malik v. Chairman, Board of Intermediate and Secondary Education, the allegation was that she got her marks forged on one answer book, in which without the forged inflation of the marks she would have failed. She was punished by the Board authorities. She was declined relief by the High Court. Her appeal was allowed, since her father took upon himself the responsibility of getting the marks inflated on persuation of the Head Examiner who was personally known to him and had voluntarily approached him with the answer paper of her daughter. It was stated that the examinee was absolutely innocent and had no knowledge of what had transpired between her father and the Head Examiner. Thus, this decision also does not advance the case of the respondent‑Board. In Nasir Saeed v. Federal Board of Intermediate and Secondary Education, Islamabad, the petitioner was found to have tampered with the answer‑sheets of two papers, in collusion with the staff of Secrecy Department of the Board. Also, upon a raid conducted by the F.I.A., certain answer‑sheets were recovered from his room in a hotel. The High Court declined to interfere with the punishment awarded by the Board and the Supreme Court refused leave. Once again, the facts are distinguishable from those of the present case. In Muhammad Naveed Akhtar v. The Vice‑Chancellor, University of the Punjab and others the allegations against the petitioner were that he had obtained nine continuation sheets; that he had slipped away from the examination centre alongwith the answer book; that he attempted the answers outside, and, in connivance with some member of the Secrecy Branch of the University, inserted the answer book with only five continuation sheets, in the bundle when the same was ready to be despatched to the External Examiner. After proper enquiry, the petitioner was found guilty and was disqualified for a period of three years. Relying on the decision in the case of Masood Pervaiz 1982 SCMR 1084 it was held that the Disciplinary Committee was the exclusive judge of the sufficiency or quantum of material for reaching a finding of fact as to the guilt of the student. It was further held that once the High Court finds that there was material /evidence available against a candidate, it could not interfere in Constitutional jurisdiction merely on the ground that the material/evidence was not of a high credibility. Thus, the availability of material /evidence against the candidate was held to be a sine qua non for disciplinary action. In Malik Habibur Rehman v. Siddique Ahmed Khan, though it was observed that in cases pertaining to disciplinary action against students, the Court is to satisfy itself that the matter has been decided in accordance with the rules of natural justice and that the Court is not concerned with the quantum of proof, and yet the decision of the Disciplinary Committee was quashed inter alia on the ground that "there was no evidence on which the impugned punishment could have been awarded" to the petitioner. The case of the Board is, in no way, advanced by relying on this decision. In Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education, D.G. Khan, the petitioner had failed as a whole once in the Intermediate (Annual) Examination held in 1988 by the Multan Board; in the second attempt he failed in four subjects, and third time he abstained from taking the examination, to avail of the last chance. In the meantime, Board of Intermediate and Secondary Education was established at D.G. Khan, and the petitioner after foregoing his last chance of appearance before Multan Board, appeared in the Intermediate (Supplementary) Examination, 1989, conducted by D.G. Khan Board, as a private and a fresh candidate in all the subjects, suppressing critical information that he had already passed in some of the subjects from another Board. He was declared "Pass" with 629/1100 marks. He then appeared in the Intermediate (Annual) Examination 1990 as a marks/improving candidate in all the subjects. He succeeded therein and improved his marks to 702/1100. Once again he appeared in Intermediate (Supplementary) Examination 1990 as a marks‑improving candidate and succeeded in obtaining 770/1100 marks. Every time, he had falsely signed the declaration form on oath, concealing that he had earlier appeared from Multan Board as well as from D.G. Khan Board, except that in the form for his last mentioned examination, he had shown to have appeared in the Intermediate (Annual) Examination 1988 conducted by the Multan Board. Based on the result of the last examination, the petitioner applied for admission to the First Year M.B.B.S. Course 1991‑1992, and got himself admitted to Nishtar Medical College, Multan against a seat reserved for Rajanpur District. Upon a reference by the Admission Committee, Punjab Medical Colleges, Lahore, by way of a standard practice, the D.G. Khan Board unearthed the deception played by the petitioner, and issued him a notice to show cause as to why his result should not be cancelled. The petitioner failed to respond to the show‑cause notice, consequently his result was cancelled/quashed and he was directed to surrender his result card. The petitioner then approached the Chairman, D.G. Khan Board begging mercy for himself and for condonation of the violation committed by him: In the meantime, the petitioner filed a Writ Petition in the High Court which was dismissed by a learned Judge of this Court by observing that the petitioner's failure to adequately respond to and avail of all such opportunities was quite understandable as the evidence available against him was entirely documentary and the legal position in that regard was also crystal clear; that even during arguments addressed before the learned Judge, the learned counsel for the petitioner could not contest, explain or justify the deceptions played and misrepresentation made by the petitioner at different stages of the matter; that before the Board as also before the High Court the petitioner had mainly a begged pardon and mercy which could hardly be a ground to declare an action to be without lawful authority; that the objection as to issuance or service of a proper show‑cause notice loses its sting as well as relevance in a case where a petitioner fails to show good cause in this Court or is not possessed of any plausible explanation regarding the violations alleged against him; that this Court has a discretion to issue or not to issue a writ where a case is otherwise made out for issuance of writ on the merits of the case, but this Court has no jurisdiction to issue a writ in its discretion where otherwise no case is made out on merits for issuance of a writ; that in the circumstances of the case the passionate plea, based on personal hardship and adverse effects on the petitioner's career and future prospects who had in the meantime become a full-fledged and duly qualified M.B.,B.S. doctor, cannot persuade the Court to exercise its discretion in petitioner's favour; that if mere sympathy for a litigant's cause could be allowed to confer jurisdiction on a Court, then the same would be a sure recipe for judicial anarchy which this Court resolutely loathed promoting; and that the plea squarely based on efflux of time since the illegalities committed by the petitioner and improvement of his status during the interregnum had seldom found favour in such cases because the discretion of this Court is generally not exercised where it perpetuated an illegality or sustained retention of ill‑gotton gains or in favour of a person coming to the Court with unclean hands. Relief was refused to the petitioner by further observing as follows:‑‑ "In the present case it was on the quicksand of falsehood, misrepresentation and deception that the petitioner had erected his monument of success. He trampled the law for his personal ambitions and gains. He achieved improvement of his marks by lowering of his ethical standards. He did that for getting into the medical profession. To him the end justified the means. Little did he know that the illegal and unethical means adopted by him for getting into the noble profession of medicine by themselves inherently disqualified him from an entry to such an ethical profession. The unfortunate plight of the petitioner has, thus, failed to evoke my sympathy." The precedent case thus proceeded on its own peculiar facts which have no nexus with those of the present case. In Farukh Din v. Government of Sindh, Constitutional petition was dismissed where the High Court, after having seen the original registers, was of the opinion that forgeries were committed and interpolations were made therein, and that such forgeries, fraud and misrepresentation could not serve as basis for a legal right enforceable before Courts. In Mst. Jamila Kausar v. Board of Intermediate and Secondary Education, Rawalpindi, their lordships of the Supreme Court declined to interfere with the decision of a Division Bench of the High Court, dismissing petitioner's Writ Petition, after themselves perusing the record which patently demonstrated that most of the answer‑books had been tampered with inasmuch as "the title/front/cover page having been pasted on the stapled sheets which were subsequently tucked in covering the staple beneath" and that despite the query, no motive of malicious involvement by any of the officials or functionaries of the Board authorities had been spelt out. The contention that the petitioner was at advanced stage of medical studies and the Board was guilty of belated initiation of proceedings was repelled by observing that to grant relief on the basis of the same "would tantamount to Sot only reaping premium of one's own doing and encouraging perpetuation of fraud and illegalities patent on the face of the record."

8. Keeping in mind the above principles, let us examine merits or demerits of the instant case: The sheet anchor of the case of the respondent‑Board is the report, dated the 24th of May, 1997, of its Chief secrecy Officer. A bare perusal of the report makes an interesting, rather a dismal reading. According to this report, as originally prepared, its author (Chief Secrecy Officer) commenced it by writing: "During my inspection of the Bundles received from the centers, I found some Bundles tampered with" whereas it is open to a naked eye that the writing preceding the word "during", viz: "Keeping in view of the complaint lodged by Mr. M. Waqar Ahmed and" had been added at some subsequent stage. Be that as it may, according to the said report, the Chief Secrecy Officer had inspected "Bundles received from the Centres" and "found some bundles tampered with". He "opened one of the tampered bundles" and "found one script hearing roll number 6729 to be a fake one" which "was in the subject of Physics Part II." The report further goes on .to mention that the Chief Secrecy Officer thought that he should open the second tampered bundle and on scrutiny he found the script of the same roll number to be similar fake one. The said Officer then statedly opened five such bundles in the subject of Physics, Chemistry, Mathematics, English and Urdu, Part II, and in each bundle the script of the same roll number was found fake. Then comes the basis on which the Chief Secrecy Officer formed his opinion, the same, in his own words, being as follows:‑‑ "The stitches of the sewing machine were different from the stitches of the Board. The signatures of the Deputy. Superintendent seemed fake." In his statement in writing prepared on 11th of June, 1997, he tried to amplify the alleged fake nature of the answer books of Roll No.6729 (Which was of the petitioner herein) by saying that the number of stitches of the answer books of the petitioner were less than the number of stitches of the answer books provided by the Board to the Centre Superintendents. At another place, in the said written statement, it is mentioned: "Now, God knows whether the copies were replaced during office hours or in the centers or in transit from centers to office." Nevertheless, so far as the first ground on which the Chief Secrecy Officer suspected, as spurious, the answer book of the petitioner is concerned, the same is untenable for reasons more than one. Firstly, he stated in his report that "the stitches of the sewing machine were different from the stitches of the Board" whereas in his statement he said that the number of stitches of the questioned answer books were less than the stitches of Board's answer books. There is thus inherent contradiction in the plea of the star witness of the Board. Besides, in the case reported as Board of Intermediate and Secondary Education, Peshawar v. Miss Salina Atta Ullah (PLD 1999 Supreme Court 909), the respondent was proceeded against for employing unfair means inter alia on the allegation that her "answer book was stitched with a thread and bound with gum, which suggested that some sheets may have been changed." The Disciplinary Committee of the Board disqualified her for three examinations and her appeal having been dismissed by the Jury of Appeal, she filed a Constitutional petition which was accepted by a Division Bench of the Peshawar High Court by observing that "the case against the petitioner was not based on sufficient material but rests on suspicion without there being any legal proof " It was further held that the Board was not sure as to at what stage and time the answer book was sewed and gummed which were the only basis to initiate the case and that "speaking for ourselves the sewing and gumming rather excluded the possibility of smuggling any answer‑sheet instead of proving any such allegation." The Board challenged the High Court's decision before the Supreme Court but failed in obtaining leave. The Hon'ble Supreme Court upheld the decision of the High Court. In the instant case also, from the afore‑quoted portion of the statement in writing of the Chief Secrecy Officer it is clear that the Board itself was not certain as to when and where the alleged replacement of the answer books had taken place. Be that as it may, the difference in the number of stitches alone was no ground for holding the petitioner guilty of the unfair means. Moreover, there is; in fact, no evidence that there was any disparity between the stitches of the questioned answer‑books and of those supplied by the Board. Needless to add that pursuant to the F.I.R lodged by the Board, investigation was taken in hand by the police which found the allegations baseless. The stand taken by the Board in its reply and parawise comments vide reply to paragraph 3 of the Writ Petition took the following form:‑‑ "On trial the allegations could not be proved, therefore, the petitioner was absolved of these charges."

9. There is yet another important aspect of the matter. The Board's own case is that strict measures had been taken to ensure safe custody of the answer books. Two Secrecy Officers had been deputed for the purpose. Ch. Abdul Hameed, ex‑Principal, Islamia College was always on duty right from 12.00 noon till all the papers of the morning, session had been completely received in the Secrecy Branch of the Board, and Ch.Riaz‑ud‑Din Ex‑Divisional Director Audit used to remain on duty from 4.30 p.m., till all the papers of the evening session had reached the Secrecy Branch of the Board. The key of the Secrecy Room used to remain with the said Ch.Riaz‑ud‑Din and the latter before leaving the Board's premises always sealed the Secrecy Room, and handed over the key either to Mr. Muhammad Athar Khawaja (Chief Secrecy Officer) on to the other Chief Secrecy Officer. Thus, according to Board's own case, there was foolproof system for security of the answer books in the Board's office.

10. The only other allegation on the basis of which the genuine nature of the answer books of the petitioner was doubted was that the signatures thereon of the Deputy Superintendent of the Centre "seemed fake." During investigation of the criminal case, it was established that on the questioned answer books of the petitioner, signatures of the Deputy Superintendent were genuine. Thus, the entire fabric of the Board's case withered away because it is not the case of the Board that the Deputy Superintendent of the Centre was in connivance with the petitioner, whereas the officials of the Secrecy Branch have been held to be responsible for substitution of the answer books. If the alleged substitution had taken place as per Board's own case, either during transit of the answer books from examination center to the Board's office or while in the Secrecy Branch, the genuine signatures of the Deputy Superintendent on the questioned answer books could not have been those unless, of course, the Deputy Superintendent had been in league with then petitioner, which is not the case of the Board. For this reason also, the Board's plea that the answer books of the petitioner were not the same which were supplied to him at the examination center is based on no evidence at all, rather conceived out of mere suspicion. Needless to mention that the burden of establishing and bringing home the charge of unfair means remains on the Board. Mere morbid suspicions cannot be permitted to be a good reason to hold a candidate guilty of unfair means. The facts and circumstances should be such as to convince the conscience of the Court about the involvement of the candidate. Vague suspicions, as in the instant case, cannot be made the standard to regulate the Court's vision. In Samar Pervaiz v Board of Intermediate and Secondary Education, Lahore (PLD 1971 SC 838) it was held as follows:‑‑ "It is true that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence."

11. Here is a case where the previous history cannot be excluded altogether from consideration. The petitioner was securing First position in the Board in Part‑I of the Intermediate Examination. To exclude him from the Investiture Ceremony, it was shown that he had obtained only 5/100 marks in the English Paper, Upon re‑checking, of the same paper, he was found to have secured 78/100 marks, but his standing First in the examination was of no consequence to the petitioner as he had neither been able to participate in the Investiture Ceremony nor he got publicity at the relevant time which was hard‑earned and was his due. The long repose on the part of the Board in getting the petitioner's English Paper of Part‑I of the Intermediate Examination and the consequent delay in declaring his result became a ground for brawl between the petitioner's father and the Chairman of the Board and they had allegedly hurled abuses on each other. Thereafter, the manner in which the Chief Secrecy Officer suspected substitution of answer books of the petitioner was also unusual. Firstly, as per his report, dated the 24th of May, 1997, it was during his inspection that he noticed the fake nature of the petitioner's answer books. Then, he took refuge under an alleged complaint by "Mr. M. Waqar Ahmed" who, during investigation of the criminal case, could not be traced, because he had not given his complete address. Strangely enough, the complaint filed in the name of Muhammad Waqar Ahmed was by a "student" but on a paper which was used in the office as is clear by the writing "Notes" on the left corner of the paper on which the complaint was inscribed, Further, although in the complaint it was mentioned that "Asad" an official of the Secrecy Branch of the Board was indulging in stealing answer books at large scale from the Board's office and used to substitute the same after the same had been attempted by the candidates outside the examination centers in place of their genuine answer books, yet the complainant knew only the petitioner's roll number and of none else. The complaint, on the face of it, appears to have been manipulated, besides being fake. If "Asad" had stolen away the answer books from the Board's Officer before the same had been sent to the Deputy Superintendent of the examination center, then how could the same bear genuine signatures of the Deputy I Superintendent as has been established during investigation of the criminal case. In the F.I.R., the date of commission of offence was definitely stated to be "22‑5‑1997" which was the date of the complaint manoeuvred in the name of "Muhammad Waqar Ahmad." The proceedings for unfair means case and for registration criminal case were initiated and completed in one go on the 24th of May, 1997. The conduct of the Board's authorities, in the circumstances, does not appear to be beyond doubt. Therefore, this Court's power of judicial review is not excluded.

12. The matter can be looked at from yet another angle. As per the so‑called complaint, the author thereof had the information that Asad, the official of the Secrecy Branch of the Board, used to bring to the petitioner's house his answer‑books after one or two days of each paper, and after the same had been attempted by the petitioner the same were: taken by Asad to the Board's Office for being restored at the relevant place. It is further stated that the petitioner used to solve one or two questions in the examination center, or would write by leaving one line, and would leave the examination hall before time. The petitioner had allegedly employed the same methodology in Part‑I Examination as well. The person who rendered the alleged secret information posed himself tar a be a student. If so, how he could pry into highly secret documents, i.e., answer‑books. He does not claim to be a friend either of the petitioner or of Asad. None of the two could place into his hands the answer‑books of the petitioner. How did he know that the petitioner had resorted to unfair means in Part‑I Examination is no less a mystery. Above all, if he had the information of wrong‑doing, right in the beginning when the examination was still in progress, why his so‑called altruistic conscience had a long repose till after the examination was over, as he is shown to have made the complaint only on the 22nd of May, 1997. All these circumstances cast serious doubts on the genuineness of the complaint itself. Thus, the mala fide attributed to the functionaries of the Board by the petitioner are not without substance. In the case of Mst. Shagufta Begum, relied upon by the learned counsel for the respondent‑Board himself, it was authoritatively laid down as follows"‑ "This, however, would not apply to cases of mala fide, particularly when the allegation is that the departmental authorities on account of political or other reason would either be not free to decide correctly or on account of their own departmental compulsions be prejudiced in rendering a particular verdict." In Miss Salma Atta Ullah's case also, the Hon'ble Supreme Court had inter alia held as follows:‑ "It is to be remembered that in the petition the allegation of arbitrariness and mala fide of the entire proceedings had been made. The 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 not exist any case or any sufficient ground which could have been made the basis of any disciplinary action or inquiry against the student concerned. In Faiza Malik's case, relied upon by the learned counsel for the Board, it was held by the Supreme Court that the liability of an examinee, beneficiary, would depend upon circumstances of each case. And, in Samar Pervaiz v. Board of Intermediate & Secondary Education, Lahore and another (PLD 1971 SC 838) it was unequivocally held that the mere ground of being a direct beneficiary would not be a substitute for proof and, therefore, the candidate could not be held responsible for the mischief. In the case of Akhtar Ali (supra) again cited by the learned counsel for the respondent himself, their lordships were mainly influenced by the fact that the appellant in that case had failed in the earlier two attempts and when his result was withheld due to non‑deposit of fees, instead of depositing the fees, he managed a fake and fictitious notification showing him to have passed. The case of the petitioner herein stands on altogether a different footing. He had an excellent bright academic career before as well as after the fateful year.

12. Doubtless, the Writ Petitions filed by Imran Riaz, Miss Ambreen Imtiaz and Shahzad Nawab Khan, who appeared alongwith the petitioner in the same examination, had been dismissed by the then learned Chief Justice by short orders, but the facts of those cases are distinguishable from those of the present case. In those cases, the allegations which stood proved during enquiry were ‑‑‑‑‑ (i) The signatures of the Deputy Superintendent were forged on the answer books of the said three candidates named above. (ii) Board's answer books were embossed whereas those of the said three candidates were not embossed. (iii) Each page of the genuine answer books supplied by the Board contained 23 lines whereas the questioned answer‑books contained 24 lines. (iv) The stitches of the questioned answer‑books were different from those of the Board. In this case, there is no such allegation that the petitioner's answer‑book was not embossed and it could not be proved that there were less or more lines of each page as compared to Board's answer, books. The signatures of the Deputy Superintendent on the answer‑books of the petitioner were found to be genuine. Thus, the petitioner's case cannot be equated with those of the three candidates whose writ petitions had been dismissed. In fact the grievance of the present petitioner in the second writ petition is that despite an undertaking given in the Supreme Court, as reflected in the order, dated the 18th of September 1997, the respondent‑Board has not served upon him the "statement of allegation" which clearly means that no such allegations were available to the Board in his case.

13. For the foregoing reasons, I am of the considered view that the case trumped up against the petitioner is destitute of any valid foundation, and there is not even a shred of valid piece of evidence in support of the allegations which were conceived out of mala fides on the part of the concerned functionaries of the Board. Consequently both the writ petitions are allowed, the proceedings of unfair means initiated, as well as the verdict of guilty recorded against the petitioner, are declared to be illegal and without lawful authority, with the result that the same stand quashed. There shall, however, be no order as to costs. S.A.K./M‑179/L Petitions accepted.