' UMAR ATA BANDIAL, J.---This writ petition is filed against the judgment, dated 13-12-2007 passed by learned Election Tribunal accepting the appeal filed by respondent No,1 against order, dated 25- 11-2007 by the Returning Officer, PP-82 Jhang XI. By its said judgment, the learned Election- Tribunal constituted under section 14(5) of the Representation of the People Act, 1976, comprising a learned Division Bench of this Court, has disqualified the petitioner before us from contesting the general election in the aforesaid constituency for lacking a graduate degree which is a qualification for candidature laid down in section 99(cc) of the Representation of the People Act, 1976 and also Article 8-A of The Conduct of General Elections Order, 2002. In declaring so, the impugned judgment by the learned Election Tribunal has reversed the finding of fact given by the Returning Officer that the petitioner possessed the requisite graduate qualification.
2. The writ petition disputes the finding given by the learned Election Tribunal and its supportive reasoning on grounds of mis-reading the record and mis-application of law pertaining to the status and recognition of the petitioner's claimed qualifications. There is no challenge in the petition to the vires of the law disqualifying non-graduates from contesting the general election.
Also the petitioner did not file any application for amendment of the writ petition to assail the vires of the aforesaid disqualification in the light of the judgment of the Hon'ble Supreme Court, dated 21-4-2008 given in C.P. No,1 of 2008 titled Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law Justice and Human Rights Division Islamabad whereby the aforesaid condition of graduate qualification for candidates to be elected as member of an assembly has been prospectively declared to be unconstitutional.
3. On 17-12-2007 the first date of hearing in this petition, the Court provisionally allowed the petitioner to participate in the general election from PP-82, Jhang XI. On 15-2-2008 the Court clarified that in case the petitioner declared the returned candidate, official notification of his result shall not be issued until the final decision of this writ petition. The petitioner won the election and assailed the aforesaid order, dated 15-2-2008 before the Hon'ble Supreme Court which by order, dated 5-9-2008 passed in C.P. No,1197 of 2008 directed notification of the petitioner's election result as the returned candidate of PP-82, Jhang XI. Accordingly, the question of the petitioner's eligibility to contest the general election and to hold his office of member of the Provincial Assembly of the Punjab remains a live issue for our determination.
4. The respondent No.1 was a contesting candidate against the petitioner in the general election from PP-82, Jhang XI. The present proceedings arise from his consistent opposition to the eligibility of the petitioner to contest the said election. The learned counsel for the parties have cooperated to argue at length their contentions in the case on 26-11-2008, 15-12-2008, 19-12-2008 and 28-1- 2009. Both parties have placed on record additional documents that touch upon the factual and legal verity of the petitioner's claim of being a graduate and, therefore, his qualification to be chosen and to remain a member of the Punjab Provincial Assembly.
5. The provisions of the applicable law, namely section 99(cc) of the Representation of the People Act, 1976 are to be following effect:-- "99. Qualification and disqualification.---(1) A person shall not be qualified to be elected or chosen as a member of an assembly unless.
(a) ..................................
(b) .....................
(c) .....................................................................
(cc) he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force.".
6. Likewise the relevant provisions of Article 8-A of the Conduct of General Elections Order, 2002 read as under:-- "8A. Educational qualification for a member of Majlis-e-Shoora (Parliament) and a Provincial Assembly.---Notwithstanding anything contained in the Constitution of Islamic Republic of Pakistan 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976) or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974) or any other law for the time being in force."
7. The petitioner got his matriculation certificate in 1973. Thereafter, he obtained three Asnad from the Ittehad ul Madaris Al-Arabia Pakistan, Parhoti, District Mardan, N.-W.F.P. ("Ittehad ul Madaris").
These Sanad comprise a Sanad issued in 2001 which is asserted to be equivalent to F.A.; a second Sanad awarded in 2003 that is statedly equivalent to B.A.; and finally a third Sanad, namely, Shahadat ul Aiamia conferred in 2005 which is claimed to be equivalent to M.A. The respective status of the Asnad is claimed on the basis of standards of equivalence prescribed by the University Grants Commission ("UGC") and maintained by its successor the Higher Education Commission ("HEC").
8. Having secured the Shahadat ul Alamia the petitioner is stated to have applied for admission on 21-8-2006 to the Al-Khair University ("Al-Khair"), Azad Jammu and Kashmir ("AJK") for taking its B.A.
Examination as an external candidate. The Al-Khair admission form filled by the petitioner applies for the B.A. Second Annual, 2006 examination and nominates Lahore as the centre from which the petitioner would take the examination. The penultimate entry on the admission form shows that the petitioner unsuccessfully sat for AlKhair's B.A. First Annual 2006 examination at its Faisalabad centre under Roll No,12106. The said admission form offers that the petitioner would sit for the full course load of six subjects for bachelor's degree. In the section on previous examinations passed, the petitioner mentions matriculation (1973); in the column for intermediate examination, he mentions the Sanad Shahadat ul Almia (equivalent to M.A.) but neither of his two lower Asnad. From the correspondence placed on record, it appears that the B.A. Second Annual 2006, examination of Al- Khair was held a month later on 20-9-2006 in which the petitioner claims to have secured good marks.
9. A detailed marks certificate, dated 30-11-2006 ("DMC") of the petitioner's result issued by Al-Khair for the B.A. Second Annual, 2006 examination along with a provisional certificate, dated 13-9-2007 of B.A. Pass in the aforesaid examination by the same university are the two documents that the petitioner filed before the learned Returning Officer and the learned Election Tribunal to establish his graduate qualification. Although the petitioner filed other documents before the learned Election Tribunal emanating from Al-Kahir and Ittehad ul Madaris in order to show the genuineness of his claimed qualification, however, he did not present any B,A. Degree before either of the said learned fora as prescribed by law. To establish his claimed qualification. The learned Tribunal perused the documents produced by both contesting parties to conclude firstly, that the petitioner did not possess a B.A. Degree within the meaning of the law; and secondly, that documents on record were contradictory on the point that the petitioner sat for the B.A. Examination of Al-Khair as claimed. Both points have remained the central focus of arguments addressed by the learned counsel for the parties before us.
10. The record shows that after the petitioner had statedly sat for AlKhair's B.A. Examination but prior to the declaration of his result, AlKhair wrote to the Ittehad ul Madaris on 4-10-2006 asking about the genuineness of the Shadahat ul Alamia Sanad claimed by the petitioner in his admission form.
In response, the Ittehad ul Madaris by letter, dated 9-10-2006 dis-avowed any record of the petitioner's claimed sanad and thereby declared it to be fake. Based on the said information from the Ittehad ul Madaris, Al-Khair by letter, dated 6-11-2006 cancelled the candidature of the petitioner. Yet rather implausibly, Al-Khair proceeded to issue a DMC (detailed marks certificate) of the petitioner's B.A. Result on 30-11-2006. The contradiction in Al-Khair's actions was somewhat diminished on 16-4-2007 when the Ittehd ul Madaris at the petitioner's instance reversed its earlier view and issued a letter affirming as genuine the petitioner's sanad of Shahadat ul Alamia (2005).
11. Be that as it may, and reverting to the chronology of events in this case, Al-Khair issued a provisional certificate of B.A. Pass to the petitioner on 13-9-2007. However, not long afterwards on 10-3-2008 AlKhair wrote to the petitioner and again cancelled both his DMC of B.A. Result and provisional certificate of B.A. Pass on the ground, inter alia, that the HEC (Higher Education Commission of Pakistan) does not recognize the Ittehad ul Madaris Al-Arabia Mardan to have Sanad awarding status and that its Sanad do not enjoy the equivalence claimed by the petitioner.
It was thus implied that the petitioner lacked the qualification of eligibility for admission to Al- Khair's B.A. Examination and hence the cancellation of the petitioner's B.A. Result. It seems the petitioner complained to the President's Secretariat in the AJK against the said action. On 14-3- 2008 Al-Khair informed the AJK President's Secretariat that it required verification of whether HEC recognize the petitioner's Shahadat ul, Alamia Sanad and if so, whether such Sanad could substitute for the Intermediate certificate as a qualification of eligibility for Al-Khair's B.A.
Examination so as to validate the DMC and provisional certificate of result already issued to the petitioner. Having said that, on 18-3-2008 Al-Khair withdrew its letter of cancellation of result, dated 10-3-2008 addressed to the petitioner but declared that it was still investigating the matter and a final decision would be taken in the light of its findings. Al-Khair has not yet given any finding to clarify its own doubts about the status of the petitioner's claimed graduate qualification.
12. It is quite clear from the above mentioned correspondence that Al-Khair itself questions the eligibility of the petitioner to be admitted to its B.A. Examination and therefore doubts the validity of the petitioner's provisional certificate of B.A. Result and his DMC. Al-Khair's investigation into the eligibility of the petitioner to sit for its B.A. Examination still continues. Al-Khair's suspicion and prevarication in the matter is noticeable ever since 6-11-2006 when it cancelled the petitioner's candidature for its B.A. Second Annual examination and again on 10-3-2008 when it cancelled the petitioner's result for the said examination. As neither of the two points of enquiry mentioned in AlKhair's letter of 10-3-2008 have been established in favour of the petitioner, therefore, according to the records of Al-Khair itself, the petitioner's claimed B.A. Qualification remains suspect.
13. On the other hand, it may be noted that Al-Khair's investigation involves information about settled facts. Quite simply, it pertains to the recognition of the Ittehad ul Madaris and the equivalence of its Sanad by the HEC. This merely requires a reference to the record of the HEC and its predecessor, the UGC. Such record which is not disputed by the parties, was brought on file by the learned A.A.-G. From the HEC, and by the contesting parties on judicial queries made by the learned Tribunal. The said material demonstrates in un-ambiguous terms that the Sanad conferred by the Ittehad ul Madaris have never received approval or recognition of the HEC and UGC. Consequently, the answer to the question being investigated by Al-Khair floats on the face of record. It is that the petitioner was not eligible to sit Al-Khair's B.A. Second Annual 2006 examination.
14. It will be recalled that the provisions of law imposing a graduate qualification for candidates for election to seats in Parliament and the Provincial Assemblies specifically provide that the UDC (University Grants Commission) is the competent organization to grant recognition or equivalence to any degree possessed by a candidate. On 22-7-2002 the UGC issued a memorandum to the Election Commission of Pakistan setting out the policy regarding equivalence and recognition of degree awarded by foreign universities and of Asnad conferred by Deeni Madaris. For our purposes the said UGC memorandum attaches a notification specifying by name 10 Deeni Madaris in which the courses of instruction are recognized by the UGC to confer Asand that enjoy equivalence to F.A., B.A. And M.A. Degrees respectively. These 10 Madaris do not include the Ittehad ul Madaris from which the petitioner obtained his Sanad. The Hon'ble Supreme Court has examined and affirmed the sanctity of the said list of 10 Madaris in two judgments namely, Sana Ullah Khan v. District Returning Officer (PLD 2005 SC 858) and Maulana Abdullah v. Returning Officer and others (2003 SCMR 195).
15. The consequence of non-recognition of the Ittehad ul Madaris and the non-equivalence of its sanad according to the standards observed by the UGC is that the petitioner lacks the qualification of eligibility for seeking admission to any B.A. Course of study. Consequently, the petitioner's enrollment by Al-Khair for the B.A. Examination is invalid. Resultantly, the petitioner's claim to being a graduate on the basis of AlKhair's DMC and provisional certificate of B.A. Pass mentioned above is rendered illegal and void. In this context the letter, dated 10-3-2008 by Al-Khair cancelling the petitioner's DMC of B.A. Result and provisional certificate of B.A. Pass assumes significance.
Although Al-Khair suspended that letter on 18-3-2008 with the commitment to continue its investigation into the matters of equivalence of the Asand from Ittehad Madaris Mardan and the recognition of the said Madaris by the HEC, yet ' Al-Khair's silence on its findings renders the petitioner's eligibility for the B.A. Examination to be both doubtful and suspect. That condition is fer's claim of being a graduate. Having a doubtful and suspicious graduate qualification cannot discharge the positive, obligation cast on a candidate by section 99(cc) of the Representation of the People Act, 1976 to establish his qualification of eligibility to contest the general election. The burden to prove a valid and subsisting qualification lies on the candidate and not on the objector prove otherwise. In the words of my learned brother on this Bench Hasnat Ahmed Khan, J. Expressed in Munir Ahmed v. Returning Officer (2008 CLC 1111) at page 1119 the principle of eligibility as a candidate is that:--"As far as requirement of possessing a Bachelor's degree is concerned that falls within the first limb of section 99, which provides the qualifications for contesting general elections. So to contest the general elections, one has to show positively that he is duly qualified for the same, meaning thereby that the burden of proof to qualify for contesting the election heavily and mainly lies on the candidate..."
16. From the circumstances and correspondence on record it is clear that the petitioner was ineligible to sit for Al-Khair's B.A. Examination.
17. Another point of objection that is patent from the documents on record of the HEC is that Al- Kahir has no authority whatsoever to offer its B.A. Examination or degree to private candidates in Pakistan. The letter, dated 9-10-2006 by the HEC to the Vice-Chanceller of Al-Khair un-equivocally declares that Al-Khair University has jurisdiction to offer its privileges solely within the territory of AJK and it cannot extend its operations into Pakistan by admitting either internal or external students from there. This letter prohibits Al-Khair from issuing advertisement inviting candidates for enrolling as its students in Pakistan for its B.A. Degree. It will be recalled that in the present case, the petitioner claims to have enrolled for the B.A. Examination as an external student of AlKhair in Pakistan opting , for an examination centre at Lahore .It transpires from the record that both his enrollment as an external student and sitting for the B.A. Examination at Lahore are prohibited by the HEC and is therefore, illegal.
18. The picture becomes clearer when the contents of the aforementioned UGC memorandum, dated 22-7-2002 to the Election Commission of Pakistan are perused. The UGC explains that a bachelor's degree involves a minimum of 14 years of schooling for the grant of a degree by chartered/accredited universities. Foreign qualification/degree held by Pakistani nationals are:-- "recognized on broader policy adopted by the Equivalence Committee of the University Grants Commission reproduced below:-- ' The degrees awarded by accredited universities may be treated in general as equivalent to corresponding degrees from Pakistan.
' As per internationally accepted norms the equivalence is always granted on case to case basis and considerations, factors like entry requirement for a specific degree, years of schooling and on campus studies. A general policy guideline being pursued for determination of equivalence of foreign degrees is enclosed."
19. Al-Khair is not a chartered/accredited university in Pakistan. It is private university operating at Mirpur, AJK. Its degrees can be recognized in Pakistan provided the UGC and now its successor HEC, grants them equivalence for which one of the criteria is on campus studies. The petitioner who claims to be an external student of a foreign university, Al-Khair, admittedly did not undertake any on campus studies. Not surprisingly therefore, the aforementioned HEC letter, dated 9-1-2006 prohibits Al-Khair as a foreign university from enrolling and offering admission to candidates in Pakistan as external students for its B.A. Degree. The reason for the said view is explained by the HEC in its letter, dated 8-12-2007 addressed to the learned A.A.-G. Assisting the learned Tribunal that rendered the impugned judgment. The letter quotes a legal opinion, dated 15-12-2001 by Federal Government as follows:-- "for extending its operation in other provinces, the Al-Khair University needs to get permission of concerned provincial education department and the public sector university, in whose jurisdiction it intends to open campuses/affiliate institutions..."
20. The HEC letter, dated 8-12-2007 continues:-- "Al-Khair University has been operating through institutions for and wide (in) Pakistan before initiative by Higher Education Commission. However, most of its campuses and affiliated institutions have ceased to exist at present. To escape from further action, the Al-Khair University filed a writ petition bearing No,165 of 2006 in Hon'ble Lahore High Court Rawalpindi Bench, Rawalpindi, which is pending for adjudication."
The aforementioned Writ Petition No,165 of 2006 filed by Al-Khair before the Rawalpindi Bench of this Court is statedly still lying at the motion stage. No substantive proceedings have taken place therein after the first ad-interim order, dated 1-2-2006 restraining penal action against Al-Khair by the HEC pursuant to its aforementioned letter, dated 9-1-2006 prohibiting enrollment of students in Pakistan and issuing advertisement to such effect. Quite obviously the pendency of the aforesaid writ petition cannot cure the petitioner's defects of ineligibility for enrolling as a B.A. Student of Al- Khair nor confer HEC recognition and equivalence to Al-Khair's degree in Pakistan.
21. The upshot of the statements of fact and of policy made by the HEC and the UGC is that Al-Khair University is not approved by the Provincial Education Department nor is it affiliated with any public sector university in the Province of Punjab or for that matter any other province of the country. As a result it has no examination centres in nor can offer examinations in Pakistan. B.A. Degrees awarded by Al-Khair to students admitted in Pakistan do not enjoy recognition in Pakistan. To exemplify the point further, the above mentioned UGS letter, dated 22-7-2002 encloses a list of universities engaged in the unlawful operation of campuses in Punjab. In the year, 2002 one of these universities had included Al-Khair University, Mirpur, AJK. Pursuant to the action taken by the HEC Al-Khair's campuses have been closed down in Pakistan. Therefore, it is legally and factually impossible for a private candidate to be enrolled by Al-Khair in Pakistan. Consequently, the petitioner who was so enrolled as an external student under a admission form, dated 21-8-2006 has made an illegal claim. He could neither be enrolled as an external student by Al-Khair nor could be lawfully sit for Al-Khair's B.A. Examination in Pakistan. Therefore, the alleged facts and events sustaining his claim to a graduate qualification are illegal and false.
22. The foregoing view is admitted and substantiated by the statement at bar by the learned counsel for the petitioner for the first time before us. He stated that notwithstanding the petitioner's request in the admission form for taking Al-Khair's B.A. Examination at the Lahore centre, the petitioner sat for the said examination in AJK. This bald statement made at bar is not supported by any particulars of the new examination centre of the petitioner nor the date and reasons for its change. No document or, form containing correspondence by the petitioner on the subject or showing allocation of a new centre to petitioner are brought on record. Clearly, the plea about an AJK examination centre is adopted by the petitioner to rebut the objection that the petitioner sat for his B.A. Examination at a non-existence or otherwise an illegal centre in Pakistan. More likely, this statement is meant to overcome the HEC's claim made in its above mentioned letter, dated 8-12- 2007 addressed to the learned A.A.-G., Punjab that campuses of Al-Khair in Pakistan had been closed down. As a result, the new unsubstantiated plea of fact about the petitioner's B.A. Examination centre in AJK contradicts and demolishes his case as conveyed by his documents on record. The substitute plea gives a version that is belated, untested and unproved by any document. Evidently, the petitioner's claim for having taken Al-Khair's B.A. Examination in AJK is closer to fiction than fact.
23. Another defect in the case of the petitioner is that for an examination allegedly passed in November, 2006, the petitioner could not produce a B.A. Degree before the Returning Officer or the learned Election Tribunal until December, 2007; or until January, 2009 in the proceedings before us.
The failure by the petitioner to meet the statutory requirement of possessing a B.A. Degree at the time of filing of nomination papers was highlighted several times in the proceedings before us by the respondent No,
1. Through C.M.274 of 2009, dated 27-1-2009 a B.A. Degree was finally placed for the first time on our record. Seemingly, this degree is dated 3-12-2007 but no explanation is given in the application for the non-mention and non-production of the said degree before the learned Tribunal. The grounds for its sudden and belated production before the Full Bench is also without explanation. In the circumstances of the case, the document bears no significance.
24. To the mind of the Court the said degree is meant to remove a legal lacuna caused by the terms of the statutory disqualification which requires a candidate for election to possess a graduate degree. In Rao Tariq Mehmood v. Election Commissioner of Pakistan (PLD 2003 Lah. 165) a Full Bench of this Court has interpreted the date of nomination for election to be the crucial date for testing the disqualification of a candidate. The degree presented on record of the Court after the said date is inconsequential unless the delay is duly explained. Otherwise also the said degree lacks factual and legal substance. It is admittedly not backed by any course of instruction undertaken by the petitioner at any institution. The petitioner does not possess a qualification of eligibility for obtaining a B.A. Degree from any university. Statement at bar by his learned counsel has contradicted his documentary version about the alleged examination centre of the petitioner and thus cast doubt that the petitioner ever sat for a B.A. Examination. The B.A. Degree is claimed by the petitioner as a private student; a status that is not recognized by the HEC. This fact is established by the foregoing correspondence of the HEC and was un-equivocally reinforced in the statement of Mr. Bashir Ahmad, Director, Higher Education Commission that was recorded by the Full Bench on 19-12-2008. His statement made in relation to AlKhair University is to the following effect:- "Higher Education Commission recognizes Graduate B.A. Degrees awarded to students, who undertake a course of study at institutions in Azad Jammu and Kashmir. It does not recognize graduate B.A. Degrees awarded to private students, who have not undertaken any course of study even if the examination is taken by those students in Azad Jammu and Kashmir."
25. Consequently, there is no doubt that the graduate qualification claimed by the petitioner lacks equivalence and recognition by HEC. The petitioner's DMC, provisional certificate and now B.A.
Degree are pieces of paper that fail to satisfy the requirement of law. These documents are of no legal effect or consequence. Quite 'obviously, for the petitioner to obtain Al-Khair's alleged graduate qualification was an exercise in futility, inter alia, for the same reason that his claimed Shahadat ul Alamia Sanad, lacks recognition and equivalence to a master's degree. Both claimed qualifications are equally inconsequential and irrelevant. The findings given by the learned Tribunal in the impugned judgment are therefore legally and factually correct and valid.
26. There remains to be considered another important and interesting fact of this case. During the pendency of instant writ petition before the Full Bench, the Hon'ble Supreme Court on 21-4-2008 announced its judgment in the case of Muhammad Nasir Mehmood and another v. Federation of Pakistan (supra) declaring Vie condition of graduation for contesting election to the Majlis-i- Shoora (Parliament) and the Provincial Assemblies to be un-constitutional. Accordingly, the legal threshhold upon which the petitioner was disqualified to contest the general election by the learned Tribunal in its impugned judgment, dated 13-12-2007 has been demolished by the Nasir Mehmood judgment. For considerations of equity and fairness the Court has therefore sought to determine whether the petitioner's disqualification survives the declaration of law, made in Nasir Mehmood's case. Both learned counsel rendered able assistance on the legal effect of the Nasir Mehmood judgment which essentially lays down a new rule of law.
27. It is established on record that the relevant facts of the case pertaining to the disqualification of the petitioner had occurred prior to the announcement of the Nasir Mehmood judgment. Those facts include the date of filing of nomination papers by the petitioner, the date of their acceptance by the learned returning officer and the date of their rejection and consequent disqualification of the petitioner by the learned Election Tribunal. At the time when the aforenoted events took place, the statutory disqualification of non-graduates from contesting the general election was a valid law. Therefore, application of the rule laid down in the Nasir Mehmood judgment to the constitutive facts of the case would, prima facie, entail retrospective enforcement of the said judgment.
Generally, judgments are as a rule enforced prospectively. However, it can be argued plausibly that the matter of disqualification of the petitioner is a pending proceedings before the Court which should serve as a basis for retrospective application of the Nasir Mehmood judgment to its acts.
Accordingly, the applicability of the new rule of law to the present case depends on the principles of law that distinguish and classify the pending cases that are amenable to the respective application of judgments. In order to appreciate the principles of law that bear upon the foregoing aspect, it is important to first notice certain elemental legal facts of the case that provide the matrix for applying the rules and principles relevant to our enquiry.
28. The writ petition before the Full Bench does not challenge the vires of the law disqualifying the petitioner for being a non-graduate; it is instead related to the legal and factual correctness of the findings given by the learned Tribunal. Notwithstanding the judgment in the Nasir Mehmood's case, no amendment was made in the writ petition to incorporate a challenge to the vires of the disqualification cast upon the petitioner. Therefore the case before the Court does not as such attract the application of the Nasir Mehmood judgment. It is significant also that the said judgment expressly states its declaration of law to be prospective in effect i,e, from 21-4-2008 whereas the constitutive facts of the case had occurred prior thereto. The proceedings before the Full Bench are neither of original nor of appellate nature. These are pending in the constitutional jurisdiction of the Court to challenge the finding given by the learned Tribunal on the criteria of jurisdiction or illegality rather than re-examination of the case as a whole. The writ petition has not been admitted to regular hearing. As such no question of law has been framed for the consideration of the Bench. In the foregoing back ground it is now appropriate to examine whether the present case is amenable to the retrospective application of the Nasir Mehmood judgment.
29. The judgment in the Nasir Mehmood case strikes down two provisions of law contained in the Representation of the People Act, 1976 and in the Conduct of General Elections Order, 2002 that required graduation as a qualification for contesting election for seats in Parliament and the Provincial Assemblies. Annulment of the said provisions of law does not involve a mere re- interpretation of law but constitutes a change by law brought about by judicial pronouncement.
New law introduced by judicial action is presumed to be prospective in effect unless it is made retrospective by express statement. The leading case on this point is Muhammad Yousaf v. Chief Settlement and Rehabilitation Commissioner Pakistan (PLD 1968 SC 101) at page 107 of the law reported it is observed:-- "This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of Constitution to apply the rule as laid down by the Supreme Court in case coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act." (Emphasis supplied).
30. The foregoing rule laid down by the Hon'ble Supreme Court has been followed consistently and a recent case to apply it is Badshah Hussain v. Akhtar Zaman (2006 SCMR 1163). It is also settled that a change of law may be given retrospective effect, if it is so intended expressly by the law.
Thus in the of Sayed ur Rahman v. Chief Election Commissioner (PLD 1965 SC 157) during the pendency of proceedings by a disqualified candidate in an election, the relevant disqualification was repealed by statute. On the question "whether the appellant can take advantage of the repeal of the Act of 1957 under which he has incurred the disqualification", the Hon'ble Supreme Court expressed the following view:-- "We therefore, entertain no doubt that the Act of 1963 is retrospective in the sense that it applies to proceedings pending at the time when the Act came into force. Accordingly it only remains to consider whether this Court in the exercise of its appellate jurisdiction can substitute for the judgment and order of the High Court a judgment or order in accordance with the law as now exists without discussing the law as it existed at the time when the High Court had seisin of the case. Once an appeal has been admitted against the decree or order of the High Court, the matter becomes sub judice again and thereafter this Court has seisin of the whole case. This Court therefore, can take into account the provisions of the new Act which repealed the Act of 1957 and grant relief accordingly even though the judgment of the High Court had been correct according to law as it then stood." (Emphasis supplied).
31. It is clear from the elaboration of law made by the Hon'ble Supreme Court- that a change of law applies to cases where the entire controversy between the parties is still open for adjudication.
According to the view reproduced above original or appellate proceedings enjoy such capacity and are therefore amendable to the application of the changed law. It follows therefore that,past and closed transactions cannot be subject to a change of law. Reference may be made to the case of Income Tax Officer v. Cement Agency Ltd. (PLD 1969 SC 322):-- "In my view such a course is not sanctioned by law. I do not see how on the basis of the judgment of this Court in Octavius Steel and Company Ltd.'s case past and closed transactions could be reopened. The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years.
' The view that I have taken receives support from the decision of this Court in Civil Miscellaneous Petition No,K-21 of 1968 (Works Co-operative Housing Society and another v. The Karachi Development Authority) decided on the 20th January, 1969. In this case my Lord the Chief Justice, in his judgment, referred to the decision of the Privy Council in the case of Lemn v. Mitchel (LR 1912 AC 400). The Privy Council observed that even a legislative measure like an Ordinance expressly given retrospective effective could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed."
32. For the purposes of the present discussion the law presumes a controversy to be a past and closed transaction where no appeal by either party is pending against the original order. The Hon'ble Supreme Court reiterated this view in Pir Bakhsh represented by his legal heirs and others v.
The Chairman, Allotment Committee (PLD 1987 SC 145); "So long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction." The fact that the Supreme Court in an appeal, titled Abdul Hafiz v. Rehabilitation Commissioner and others, against the judgment of the High Court set aside the same judgment in another writ petition would not reopen the concluded rights of the parties under the decision of the High Courts against which no appeal was filed nor could the appellants who were respondents in the writ petition avail the benefit of the law laid down by the Supreme Court under Article 189 of the Constitution. They can have, therefore, no grievance if the Settlement Authorities maintained the earlier allotments of the respondents by cancelling the allotments of the appellants to the extent of the lands sliced down from their holdings."
33. The basic principle of law that follows from the foregoing is that a pending lis is decided according to the law as it existed when the action was begun. This rule treats the prospectivity of a new law to be crucial as evident in Hassan and others v. Fancy Foundation (PLD 1975 SC 1): "And it is well established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."
34. The corresponding limb of the aforesaid principle is that during pendency of the original proceedings and also appellate proceedings the entire controversy between the parties remains open for adjudication. Hence, a change of law would govern such pending proceedings because these are not a past and closed transaction. This reasoning is evident in the aforenoted dicta in Fir Bakhsh's case.
35. Some related cases showing the Courts' avoidance of retrospective of change in law are important for purposes of contrast. It was laid down in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that an amendment in law during the pendency of the suit was not applicable to the pending proceedings because the appellate government in the case has itself issued a notification for its own benefit to defeat the respondent's claim in the suit. Another restrictive refinement made in the foregoing principle of applicability of new law to pending proceedings is that once a decree has been passed in a suit, that would amount to the conferment of a vested right on the decree-holder and therefore, a change in law at that stage would be ineffective to undo the decree. This view representing a wider exclusion of retrospective is explained by the Hon'ble Supreme Court in Mst. Bibi Jan v. R.A. Monny (PLD 1961 SC 69):-- "The words of the Notification No,4347-L-D, dated 7-11-1951, are plain and fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre-emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be recognized to this proposition would be in favour of cases in which decrees had already been obtained by the pre-emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre-emptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non-suit plaintiffs who may have filed suits for pre-emptor before the date of the notification, as well as debar all pre-emption from instituting suits to enforce their right of pre-emption in the area in question subsequent to the date of notification."
' The above principle that a decree in a suit represents a cut-off . Point for the application of law was adopted by the Hon'ble Supreme Court in Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287).
36. The substance of the foregoing discussion is that the Courts are averse to retrospective enforcement of a change in law whether made by judicial pronouncement or legislative action.
New law cannot reopen and apply to a past and closed transaction unless expressly intended.
Proceedings before the original and the appellant forum are generally treated as being amenable to the application of changed law because appellate proceedings are deemed by law to be a continuation of the original proceedings as observed in Multan Electric Power Company Ltd.
Through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328).
Accordingly, the entire controversy in the lis is open in all respects before appellate Court for adjudication. Therefore the application of a change in law to such proceedings is not considered to constitute retrospective application of the new law.
37. Given the above principle of law we may now proceed to determine whether the change of law ordained by the Nasir Mehmood judgment can have application to the lis in present writ petition. It will be noted that Nasir Mehmood judgment was announced during the proceedings before the Full Bench. These proceedings are in the constitutional jurisdiction of the Court and as neither original nor appellate proceedings on the question of disqualification of the petitioner under the Representation of the People Act, 1976. The constitutional jurisdiction of the Court is exercised to prevent injustice committed through jurisdictional excess or commission of illegality. The entire controversy between the parties is not open before the Court for redetermination. The principles of law noted above with regard to the application of change of law to a lis in pending proceedings militate the application of the Nasir Mehmood judgment to the facts of the present case. Probably for this reason the petitioner has not incorporated any challenge to the vires of the law disqualifying him in the petitioner before the Full bench. Learned counsel for the petitioner has relied on two judgments namely Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180) and Mst, Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220) in the aid of a half hearted plea for the enforcement of the ratio in the Nasir Mehmood case to the present proceedings. In the first noted case the Hon'ble Supreme Court applied the change of law because the certificate appeal had, been admitted to regular hearing and therefore it was observed that the appellate proceedings became amenable to the application of the new law.
That is not so in the case in hand. Let alone the non-existence of an appeal, even the writ petition has not been admitted to regular hearing. The second case relied by the learned counsel for the petitioner too is not relevant because it is not concerned with a change of law but with the legal effect of subsequent factual events having bearing upon the outcome of the controversy.
38. As a result it is the considered view of the courts that the Nasir Mehmood judgment has no application to the facts or the fate of the present case. Consequently, the statutory disqualification of non-graduates from contesting the general election remains to be the applicable law to the facts of the petitioner's case. That law was applied by Returning Officer in the original proceedings and by the learned Election Tribunal, in the appellate proceedings. After the conclusion of the appellate proceedings before the learned election Tribunal, the matter with reference to the application of a change in law represents a past and closed transaction.. Accordingly, the conclusion arrived by us affirming the correctness of the impugned judgment of the learned Election Tribunal holds good. This writ petition is, therefore, dismissed with no order as to costs.