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Writ Petition No. 508 of 1972, decided on 27th October, 1972.

(a) Board of Intermediate and Secondary Education Multan Rules for Intermediate Examination‑‑

‑‑‑R. 6.6‑II‑‑Unfair means‑‑Criminal proceedings against candidate charged with using unfair means in examination‑‑Rigors of procedure of criminal trial were not applicable to disciplinary proceedings against candidate charged with using unfair means in examination‑‑Technical defects in charge framed against such candidate, held, would not help him if test of sufficiency of disclosures and reasonableness of opportunity was satisfied‑‑Contention that charge notified to petitioner /candidate was different from one on which he had been found guilty, was repelled as untenable in circumstance‑

The Working Muslim Mission and Literary Trust Lahore v. The Crown P L D 1956 FC 209 rel.

‑‑‑Art. 199‑‑Board of Intermediate and Secondary Education Multan Rules for Intermediate Examination, R.6.6‑II‑‑Unfair means‑‑Finding of fact‑ Constitutional jurisdiction, exercise of‑‑Departmental Authorities, in proceedings against petitioner/ candidate charged with using unfair means in examination admittedly had gone into question carefully‑‑Authorities had paid attention to plea taken up by petitioner and reached conclusion which could not be said to be without evidence or perverse, arbitrary or unreasonable‑‑Such finding of fact arrived at by Authorities, held, would not be open to interference in constitutional jurisdiction of High Court simply because a different view might be taken of material on record.

‑‑‑Art. 199‑‑Board of Intermediate and Secondary Education Multan Rules for Intermediate Examination, R. 6‑‑Unfair means case‑‑Finding of fact‑‑Constitutional jurisdiction, exercise of‑‑Finding of fact arrived at by Departmental Authorities in matter of using unfair means by candidate in examination was based not only on identity of words and figures, used, but also on omission and mistakes committed by candidate in solving questions‑‑Persons dealing with such cases more frequently have come to conclusion that there was use of unfair means in view of identity so established‑‑Finding of fact so arrived at by Authorities, held, would not be open to interference in constitutional jurisdiction of High Court.

Muhammad Ismail for Petitioner. Mirza Manzoor Ahmad for Respondents.

Date of hearing: 27th October, 1972.

Mahmood Ahmad, a student, who took up the 1971 Annual Intermediate Arts Examination with Roll No. 11656, held by the Board of Intermediate and Secondary Education, Multan, challenges by this petition under Article 98 of the late Constitution an order communicated to him by the Controller of Examinations by letter, dated 5‑1‑1972 disqualifying him from four Examinations i.e. 'from passing the Annual Examination, 1971 and from appearing in the Supplementary Examination, 1971 and Annual and Supplementary Examinations of 1972'.

2. The petitioner appeared in the Annual Intermediate Arts Examination in 1971 and was assigned Roll No. 11656. After the Examination he was served on 24‑8‑1971 with a charge‑sheet containing the allegation that while appearing in 1971 Annual Examination in Mathematics Paper II on 17‑6‑1971 he 'solved questions with the consent of Roll No. 11657'. He was called upon to put in his defence he did so and attended the hearing before the Discipline Committee on 1‑1‑1972 alongwith the other candidate (Roll No. 11657). The Discipline Committee found him guilty 'of receiving and giving help and disqualified him from passing the Annual Examination 1971 and from appearing in the Supplementary Examination 1971 and both Annual and Supplementary Examinations 1972 under Rule 8 sub‑rule (i). The petitioner appealed to the Appellate Committee which heard him and rejected the appeal on 18‑2‑1972. Hence this petition.

3. The learned counsel for the petitioner has challenged the legality of the orders on the following grounds:‑

(1) The charge notified to the petitioner is different from the one on which he has been held guilty. Therefore, there was no sufficient disclosures to the petitioner and he was prejudiced in his defence.

(2) On facts found established no case is made out, for a conclusion different from the one reached by the Discipline Committee and the Appellate Committee can reasonably be arrived at on the same material.

4. So far as the particulars of the charge are concerned, apart from the fact that it mentioned that the petitioner 'solved questions with the consent of Roll No. 11657' he was told by the same charge‑sheet that the allegation against him fell under Rule 8 sub‑rul (i) printed on the reverse of the charge‑sheet. The charge so printed _provided:‑

"A candidate shall be disqualified from passing the particular examination and from appearing in the immediately following three examinations (Annual or Supplementary) if he is found guilty of

(i) giving or receiving assistance for solving a question paper, allowing any other candidate to copy from his answer‑book or being or attempting to use these or other means of solving question paper which may be held as unfair by the competent authority.

During the course of the inquiry it transpired that the petitioner's seat in the Examination Hall was in the front while that of the other candidate was just in his rear.

5. The learned counsel for the petitioner has referred to the law as enunciated in respect of the charge in a criminal trial with a view to illustrate that the charge proved is different from the charge on which the petitioner was tried. The analogy is not quite appropriate because the rigor of the procedure of the criminal trial is not applicable to these proceedings. Instead sufficient disclosures of facts constituting the unfair means with a view to afford reasonable opportunity to show cause against the penalty indicated is all that is to be provided. If this test of sufficiency of disclosures and reasonableness of opportunity is satisfied the technical defects in the charge would not help the petitioner. The allegation in the charge is of obtaining consent of Roll No. 11657 which was availed of for solving questions. In holding the petitioner guilty 'of giving and receiving help' it cannot be said that a different charge was proved though it can appropriately be said that more than what was the charge was proved. Even that may not be correct in this case in view of the clear wording of the particulars of the unfair means contained in first portion of sub‑rule (i) of Rule 8 to which the attention of the petitioner was directly drawn.

6. The learned counsel has in this context referred to the case. The Working Muslim Mission and Literary Trust Lahore v. The Crown PLD 1956 FC 209 in which the Provincial Government had forfeited printed material on the disclosed ground that it was punishable under section 295‑A, P.P.C. The High Court came to the conclusion that it was not punishable under that section but under section 153‑A, P.P.C. which had not been made a ground for forfeiture. The order of forfeiture was set aside by the Federal Court for the reason that that was not the ground on which the order of forfeiture in those proceedings had been passed. The facts in that case are distinguishable for the ground on which action had been taken was not made out at all and some other ground was made out. In the case in hand the ground mentioned in the charge was made out and something more. The charge read with the rules reproduced on the reverse of the charge‑sheet gave a fair disclosure of the material on which the petitioner had been proceeded against and was to show‑cause.

7. As regards the finding of fact, normally this Court does not interfere. The learned counsel for the petitioner however, submits that in a Mathematics Paper in particular most of the answers are solved by making diagram and writing number with connecting signs of addition, deduction, multiplication, etc. Therefore, if the questions are correctly solved there is likelihood of identity in the steps leading to the correct answer in all those cases and such identity will not be incriminating. He has also drawn attention to the spelling mistakes and to the difference in phraseology wherever words or sentences had to be used for explaining the numerals /diagrams. The copy books in question were examined in Court with the assistance of the learned counsel. Before undertaking any discussion of its contents it must be seen as to what care the departmental authorities had taken to ensure a correct finding of fact. It was the examiner of the script who had pointed out in the case of the petitioner as also in a number of other cases his suspicion that unfair means had been used by the candidates. This report had been examined by the Controller, and a charge was served on the petitioner. Both the candidates appeared before the Discipline Committee. The Discipline Committee recorded the following finding of fact:‑

"On comparison of both scripts with regard to question (b); question 3(b) and question

4(a) as pointed out by the Sub‑Examiner in his fool proof statements on page 62 there is no doubt left that answer to the question tally word by word, and are in the same sequence even mistakes are common. The pages bearing copies answer to script Roll No. 18656 are pages 4, 5 (also bearing note of Sheikh Muhammad Shafi, former Member and Mathematics expert too certify solutions by both are wrong etc. ) 9, 11 and the pages of script 11657 are 26, 34 (factors missing pointed out by Sub‑Examiner), 36 and 37.

Thus, both the candidates are found guilty of receiving and giving help to each other and are, therefore, disqualified from passing the Annual Examination 1971 and from appearing in the Supplementary Examination 1971 and both Annual and Supplementary Examinations 1972 under Rule 8(i)."

The Appellate Committee also observed as follows:‑

"The case has been thoroughly gone through by us. These candidates in their statement and arguments before us brought no new facts to light except that they have already stated in their replies to the charge‑sheets and appeals filed by them. The fact that even mistakes committed by them tally in respect of Question 4(a) and steps omitted in the solution of Question III(b) are also the same shows that .these candidates helped each other in the Examination Hall and thus have been rightly held guilty by the Discipline Committee and punished accordingly as under rules With a view to satisfy the candidates fully, marked scripts of a bundle in Mathematics II Intermediate Examination 1971 were obtained from the office and dozen of scripts in which question III(d) and Question IV(a) were solved by the candidates concerned of the scripts,; were shown to the candidates and in no case the answers as written, by the candidates concerned in their scripts tallied so closely and fully', as the solution to Question III(b) and Question IV(a) tallied in case of candidates Roll No. 11656 and 11657."

8. It appears, therefore, that the departmental authorities have gone into the question, paid attention to the plea taken up by the petitioner and reached a conclusion which cannot be said to be a conclusion arrived at on no evidence or is perverse, arbitrary or', unreasonable. Simply because a different view may be taken of the material would be no ground to interfere with such a finding.

9. The finding of fact, it appears, is based not only on the identity of the words and figures used but also on the omissions and mistakes committed in solving the questions. One may be able to explain the first but it is not possible to explain how the omissions, the mistakes and the wrong steps adopted in solving the questions could be identical in the two scripts. Besides, persons who are dealing with such cases more frequently have come to the conclusion that there was use of unfair means in view of the identity so established. I find that this finding of fact is not open to interference, in the circumstances of this case.

10. There is, therefore, no merit in this writ petition which is hereby dismissed. No order is made as to costs.

H . B . T . / M‑3 / L Petition dismissed.

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