P L D 2004 LAHORE 130


Constitution of Pakistan (1973), Arts. 41(6) & 199-
r/w Referendum Order [Chief Executive’s Order No. 12 of 2002] Art. 3(3)-

(i) That the Referendum impugned in this petition was massively rigged and it has violated the sanctity of the ballot box. The same is therefore, of no legal effect ;

(ii) That various newspaper reports and articles, copies of which have been appended with the petition, warrant judicial notice of this Court and those reports can be considered as evidence and that no further recording of evidence is called for in support of the allegations leveled in this petition.

(iii) In answer to the Court query as to whether the alleged rigging could be quantified to grant the relief prayed for in this petition, petitioner contended that in a case of this kind no quantification was necessary as the over all effect of the newspaper reports and articles published by leaders of different opinion prove beyond doubt that sanctity of the entire process stands eroded and something which was too apparent does not need quantification ;

(iv) That the news reports, press-clippings and various articles published in different newspapers, after Referendum, were never specifically contradicted by the Election Commission of Pakistan which is indicative of the fact that the allegations leveled have been accepted.

(v) That all actions of the respondent-Government including that of respondent no. 3 can be examined by this Court in the writ jurisdiction in view of the law laid down by the august Supreme Court in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869. In support of the submissions, petitioner relied on Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A PLD 1976 SC 57 and Bhagwati Charan Shukla v. Provincial Government C.P. and Berar AIR 1947 Nag. 1;

(vi) That a Member of the Election Commission of Pakistan had resigned and in an interview he categorically declared that “I resigned my membership of the Election Commission because I believe that Referendum to be unconstitutional and the Judges Code of Conduct prohibits a Judge from involving himself and his office in public controversies of a political dimension”. This resignation, he contended, is a further proof that the election held is not only illegal but was conducted in a manner, which was unfair and lacks transparency.

In terms of Article 3(3) of Referendum Order, 2002, a question was framed and a Referendum was held to solicit public opinion on the said question on 30th April, 2002 and as notified by the Election Commission of Pakistan, majority of the votes cast, were in the affirmative. General Pervaiz Musharraf was declared to have received democratic mandate from the people of Pakistan “to serve the nation as a President of Pakistan for a period of five years”. The passage of the Referendum Order, 2002, the consequences flowing from the result of the Referendum and the manner in which Referendum was held, generated controversy and raised issues. This controversy broadly has three dimensions. Firstly whether the Referendum Order, 2002 could have the effect of amending Article 41(6) of the Constitution of Islamic Republic of Pakistan, 1973, secondly, whether in event of answer to the question raised in the Referendum being affirmative, could the incumbent of the office of the President of Pakistan be deemed to have been elected for a term of five years notwithstanding the mode of election provide in the Constitution and, thirdly, whether the Referendum held was fair and transparent. The controversy with regards to the first two aspects is not an issue before this Court as it stands adjudicated upon by the august Supreme Court in Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 SC 853 and Watan Party through Punjab President Ladies Wing Tasneem Sahukat Khan v. Chief Executive/President of Pakistan and another PLD 2003 SC 74. In the former case, at page 938, it was held as under :-

“We have already held that the Referendum Order is a validly promulgated Order of the Chief Executive. The Referendum Order empowers the Chief Election Commissioner and the Election Commission of Pakistan to hold and conduct referendum and this is not open to challenge on any ground or criteria laid down in Syed Zafar Ali Shah’s case.

Conscious of the afore-referred position, petitioner and the learned Attorney-General for Pakistan Mr. Makhdoom Ali Khan confined their prayer and submissions to the third aspect i.e. the process of Referendum and the allegation of massive rigging. Although no complaint was filed by any individual or political party and even petitioner did not agitate this issue before the Election Commission of Pakistan. The Constitutional jurisdiction of this Court has been invoked to give a declaration that the Referendum held was fraudulent and not fair. Petitioner sought to prove the allegations of riggings, on the basis of columns published in various newspapers/periodicals and newspaper reports, clippings of which were appended with this petition.

Any analysis of the precedent case-law and the juristic commentary in paras. 7 and 8 above, would show that a Court may take judicial notice of the newspaper reports and articles, inter alia, in the following circumstances :–

(i) where the direct evidence is not available.

(ii) where it is sought to be proved that a person had notice of the contents of a newspaper report.

(iii) where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which are to be used against him;

(iv) in cases of defamation ;

(v) if the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.

There is yet another aspect of the matter. Even if some credence is given to the newspaper reports/articles, annexed with this petition, they cover hardly a few Polling Stations whereas according to the written statement submitted by the Election Commission of Pakistan there were 87,074 Polling Stations with 1,63,641 Polling Booths. Some rigging may have taken place. The issue is not whether the manipulation or rigging did take place but the quantum of the rigging. One cannot pronounce judgment on the basis of reports with regard to a few Polling Stations and annual the entire result of Referendum spread over thousands of Polling Stations.

Petitioner may hold any opinion about an individual or an institution or an episode but this Court cannot give credence to a view or grant a prayer without due process of law. We cannot hasten a conclusion without evidence to back it.

The petitioner has not quoted any authority where the election of a “holder of a public office” was annulled or the incumbent of an office was disqualified on the basis of the press reports alone rather there is precedent to the contrary. In Mian Ziauddin v. Punjab Local Government Election Tribunal, Lahore and 2 others 1984 CLC 1544, a learned Division Bench of this Court refused to disqualify a candidate on the basis of press reports.

Not mindful of the extent of the powers of this Court under Article 199 of the Constitution, and that the prayer made entailed factual inquiry calling for recording of evidence which exercise could only be undertaken by a Tribunal of plenary jurisdiction petitioner entreated this Court to pronounce some “historic” judgment; a judgment, which accordingly to him, may uphold democracy and rule of law. There is no magic wand, which can herald the down of a new era. Democracy and rule of law cannot bloom and flourish in absence of other sustaining elements of civil society i.e. education, tolerance, eternal vigilance for rights, commitment to duty, a level of economic well being and a culture of values. A country and a people have to determine the national priorities in accord with the aspirations and ideals they cherish. And these ideals have to be backed by affirmative action. A dichotomy in thought and action is debasing and a recipe for ideals to go sour. Each individual has to contribute his/her bit. Each State institution has to play its defined role. [pp. 135,138, 139,141,143,144] A,B,C,D,E,F,G,H,I & J

A.K Dogar for Petitioner
Makhdoom Ali Khan Attorney-General for Pakistan
assisted by M. Pervaiz Akhtar Malik, Sher Zaman Khan
and Muhammad Nawaz Bhatti. Deputy Attorney-General
and Shahid Karim for Respondent.
Dates of hearing : 18th, 19th December, 2002, 3rd October, 21st November, 9th and 10th December, 2003

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