P L D 2003 Lahore 43 (PLP)

Islamic Republic of Pakistan, as the name itself suggests, is a republic and its democratic Constitutional character, despite the present Constitutional deviation, has been preserved and protected by the Hon'ble Supreme Court of Pakistan through its ,judgment in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive cat Pakistan and others PLD 2000 SC

869. Article 213 of the Constitution of die Islamic Republic of Pakistan, 1973 has created the office of the Chief Election Commissioner and Article 218 of the Constitution entrusts the Election Commission with the duty of organizing and conducting elections and to make such arrangements as are necessary to ensure that the elections are conducted "honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against". Clause (6) of Article 48 of the Constitution provides for holding of a referendum on "any matter of a national importance" and clause (7) of the said Article empowers the Majlis e‑Shoora (Parliament) to, through an Act, lay down the procedure for holding of a referendum and the compiling and consolidation of the result of a referendum. The referendum held in Pakistan on 30‑4‑2002 was held under the Referendum Order, 2002 made and promulgated by the Chief Executive and President of the Islamic Republic of Pakistan. By virtue of the provisions of Article 9 of the said Order the Election Commission was entrusted with the task of "ensuring that the referendum is conducted justly and fairly in accordance with the provisions of this Order". According to clause (1) of Article 4 of the Referendum Order, 2002 a consequence of a positive result of the referendum is to be that "the people of Pakistan shall be deemed to have given the democratic mandate to General Pervez Musharraf to serve the nation as President of Pakistan for a period of five years".

2. It has been maintained by the petitioner in the present petition that the sanctity of ballot had grossly and grievously been violated in the referendum held on 30‑4‑2002 and, thus, the Chief Executive as well as the Election Commission had failed to discharge the trust reposed in them by the nation. The main thrust of the arguments addressed by the learned counsel for the petitioner has been that democracy sans sanctity of ballot is merely illusory and a. "democracy mandate" flowing from a polluted source cannot be treated as sacrosanct.

3. At the outset the learned counsel for the petitioner has stated before this Court that the legality of the Order regarding holding of the referendum has already been determined. by the Hon'ble Supreme Court of Pakistan in the case of Qazi Hussain Ahmad v. General Pervez Musharraf, Chief Executive and another (Constitution Petition No. 15 of 2002, decided on 27‑4‑2002) (PLD 2002 SC 853) and, therefore, the said issue is not being raised by the petitioner before this Court through the present petition. With reference to the seine judgment handed down by the Hon'ble Supreme Court of Pakistan he has also maintained that the consequences flowing from the result of the said referendum are also not a subject‑matter of the present petition as a separate challenge to the same shall be made by the petitioner before "a proper forum at the appropriate time", as made permissible by the Hon'ble Supreme Court of Pakistan in the said judgment. According to him it is the alleged 'rigging' and the so‑called 'massive fraud with the nation' taking place on 30‑4‑2002 which has been assailed by the petitioner before this Court through the present petition. Although a number of prayers have been made by the petitioner before this Court through the present petition but according to the learned counsel for the petitioner, the following prayers made in this petition require special attention of this Court: "(a,) Holding of referendum on 30‑4‑2002 be declared to be a deceitful, fraudulent and an incredibly horrendous criminal act perpetrated on the people of Pakistan. . . (d) in the face of unimpeachable evidence of manufactured, engineered, stage‑managed, farcical exercise of 30‑4‑2002 has proved that respondents Nos.2 and 3 are incapable of holding free and fair elections and that this learned Court has power to issue guidelines and to direct that even though the military coup dated 12th October, 1998 stood validated under the doctrine of State necessity yet the respondent No.2 has become disqualified to hold the reins of .the Government and steer the National towards restoration of democracy."

4. In support of this petition it has, inter alia, been maintained by the learned counsel for the petitioner that the national as well as international media besides the informed public opinion as well as the public at large have concurred in their conclusion about massive rigging and violation of the sanctity of ballot during the impugned referendum denuding the said referendum of its legal and moral validity and its result of its sanctity. In this context the learned counsel has referred to various newspaper reports and articles copies of which have been appended with this petition. It has been maintained by him that judicial notice can be taken of contemporaneous events as well as of newspaper reports and articles in that regard. Reliance in this respect has been placed upon the cases of Begum Nusrat Bhutto v. Chief of Army Staff and another PLD 1977 SC 657; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57 and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC

869. It has also been argued that facts which have become public and general can also be taken notice of by a Court and general knowledge about the same can be utilized before the Court. Reference in this regard has been made to the cases of Bhagwati Charan Shukla v. Provincial Government, C.P. and Berar AIR 1947 Nag. 1; Mrs. Keays Byrne v. The Settlement Commissioner, Rawalpindi and others PLD 1963 Lah. 88; Burno Ragazzi and others v. The Registrar of Joint Stock Companies, Karachi PLD 1959 Kar. 48 and Shahzada Muzaffar Ali v. Mst. Agha Begum and another PLD 1968 Lah.

372. While maintaining that recording of evidence may not be necessary in this case on account of availability of sufficient material in support of the petitioner's allegations the learned counsel for the petitioner has referred to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and the following passage appearing at page 695 of the said report has been read out by him: "The allegation that there was massive rigging of the elections under the directions of Mr. Z.A. Bhutto has been strenuously denied by Mr. Z.A. Bhutto himself and by Mr. Yahya Bakhtiar on behalf of the Pakistan People's Party. However, the important point for our present purpose is not whether in fact there was massive rigging of the elections or not, but that the people all over Pakistan protested that there had been massive rigging by the Government functionaries. In addition, we have before us material in the form of certain actions taken in this behalf by the Government and the Chief Election Commissioner." The learned counsel for the petitioner has further argued that the Constitution of the country is still intact and by virtue of the law declared by the Hon'ble Supreme Court of Pakistan in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 all the actions of the present Government can be examined by this Court in respect of their validity. It has also been maintained by the learned counsel for the petitioner that respondent No.3 and the Election Commission have lost the confidence of the people of Pakistan and they do not expect fair and free holding .of the forthcoming general elections under their supervision and control.

5. The points involved in the present petition are sorely of great public importance as the same not only touch upon the democratic Constitutional character of the country but also relate to the citizens' Constitutionally and legally ensured democratic rights. This petition is, therefore, admitted to regular hearing. Notice of this petition may be issued to the respondents as well as to the learned Attorney‑General of Pakistan for a date to be fixed by the Office. In the meanwhile the petitioner may place on the record of this petition any other material which may be relevant to the issues involved herein. M. B. A./P‑117/L Order accordingly.