P L D 2004 Lahore 130 (PLP)

TASSADUQ HUSSAIN JILANI, J.

Petitioner is the President of registered association of lawyers. 'A Referendum wag held in Pakistan on 30-4-2002 in terms of the Referendum Order, 2002., Through this petition petitioner has challenged the, said Referendum and the precise prayer made in this petition, which the petitioner vehemently urged, is as under:-- "(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'30-4-20;0,2 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, 1999 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 nation towards restoration of democracy.."

2. Mr: A. K. Dogar,' Advocate/petitioner, who is pleading the ease himself has made following submissions:

(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 anal 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 newspaper, 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 or 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 PLD 1977 SC 657, Islamic Republic of Pakistan through Secretary, -Ministry of Intexior 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 " resigned my membership of the Election Commission because 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.

3. Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan, who was called to assist the Court in view of the issues raised, submitted (i) That at the asking of the Court a query was made from the Election Commission of Pakistan as to whether any complaint was received about the alleged rigging in the Referendum and the latter has informed that from Karachi to Peshawar, no complaint was received against the Referendum at any Polling Station; (ii) that the Election Commission of Pakistan consists of a former Chief Justice of Supreme Court of Pakistan and four sitting Judges of the Provincial High Courts in Pakistan. By convention, they do not respond to the news items and articles published in newspapers regarding the matters which pertain to their functions unless; of course, a specific complaint is made in accordance with the law and rules; (iii) that the Referendum was held under the Referendum Order, 2002 which stands protected in terms of Article 270-A of the Constitution and the L.F.O. through which various amendments were brought about in the Constitution of Islamic Republic of Pakistan, 1973 stand upheld by the august Supreme Court in Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive/President of Pakistan and another PLD 2003 SC 74 and by this Court in Pakistan Lawyers' Forum v. Federation of Pakistan and another PLD 2003 Lah. 461; (iv) that the present incumbent assumed the office of the President of Pakistan in terms of Article 41(7)(b) of the Constitution of Islamic Republic of Pakistan, 1973. He was administered Oath by the Hon'ble Chief Justice of Pakistan on 16-11-2002 who gave Oath to the Prime Minister of Pakistan on 23-I1-2002. The smooth transition having taken place, this Court may not interfere with restoration of democratic set-up. (v) that the entire petition is based on press-clippings, newspaper reports and columns, which are no substitute for evidence. The reliance of the petitioner on the precedent case-law to which reference has been made in support of the plea that the press clippings may be considered as evidence, are of no avail in the facts and circumstances of this case. According to him, there are two streams of authorities so far as case-law on the evidentiary value of this material is concerned. One set of precedent case-law where the Courts were called upon to decide about the vires of an executive action and the Courts did not interfere where those reports had nexus with the reasons advanced by the Executive Authority. However, there is a set of authorities where these press clippings and news reports were not accredited with truth as those were hit by hearsay rule of appreciation of evidence. In the instant case, a challenge has been thrown to the assumption of office of the President by the present incumbent through Referendum, held under the Referendum Order, 2002, which is part of the LFO and the LFO stands validated through judicial pronouncements not only by this Court but also by the Apex Court of the country. The petitioner has not cited a single case, where the rights of a person to hold office were judicially adjudicated upon on the basis of press-clippings. The distinction between an executive decision being upheld by the superior Courts and the Court not interfering in a matter where challenge is thrown to assumption of office on the basis of press-clippings came in focus in Mohtarma Benazir Bhutto N President of Pakistan and 2 others PLD 2000 SC 77 and Khalid Malik and others v. Federation of Pakistan and others PLD 199: Kar.

1. Exercising his right to reply Mr: A.K. Dogar, Advocate/petitioner submitted that he has appended with the petition sufficient evidence for the grant of relief sought; that non-filing of any complaint before the Election Commission against the rigging was because the Reference was not an adversarial contest; that the petitioner himself did not lodge any complaint with the Election Commission as he had no faith in it and came to this Court directly that Article 41(7)(h), sought to be made part of the Constitution of Islamic Republic of Pakistan, 1973, is being presented before the Parliament shortly; that the-judgment of the august Supreme Court in Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive/President of Pakistan and another PLD 2003 SC 74, on the afore-referred issue, is not a judgment on merit; that although there is no precedent where a Constitutional Court annulled the result of Referendum yet in the recent case of Georgia on account .of massive rigging in General Elections, President of Georgia EDWARD SHEVARDNADZE had to flee from the country and that in case this petition is allowed, it would not disturb the entire Constitutional set-up and would only affect the incumbent office of the President in which event a fresh election, for the said office, would be held and that would auger S well democratic process in the country.

4. We have heard petitioner, the learned Attorney-General for Pakistan Mr. Makhdoom Ali Khan, have given anxious consideration to the submissions made at the bar and gone, through the precedent case-law.

5. 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 provided in the Constitution. and, thirdly, who her 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 Shaukat Khan v. Chief Executive/President of Pakistan and another PLD 2003 SC

74. In the former case, at page 938, it was held as F 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. It was repeatedly argued that the provisions for referendum in the Constitution are general it nature while Article 41 specifically provides the mode for election to the office of the President through an electoral college of the National Assembly, the Provincial Assemblies and the Senate and Article 41 being the special provision would prevail over Article 48(6). Syed Sharifuddin Pirzada argued that Article 41 and Article 48(6) of the-Constitution, if read together. acid harmonized, provide plural remedies, courses and options."

6. 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 rigging, on the basis of columns published in various newspapers/periodicals and newspaper reports, clippings of which were appended with this petition. Even authors of those reports or the editors of the newspapers and periodicals were not sought to be summoned by the petitioner in proof of the allegations levelled. According to him the reports of the events are sufficient proof and this Court, in these proceedings, can consider them as evidence relaxing the rule of hearsay. In support of this plea, he primarily relied on a judgment of the august Supreme Court reported in Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. PLO 1976 SC

57. In the said case, the Federal Government, by a notification, dissolved the National Awami Party and thereafter in terms of section 6(2) of the Political Parties Act, 1962, made a reference to the Hon'ble Supreme Court under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973. Unlike the instant petition filed under the limited parameters of Article 199 of the Constitution, the Court, in the said case, decided a Reference received under the Political Parties Act in the light of the material/evidence produced before it by the Referring Authority and the respondents therein. The au-ust Court, after considering documentary; oral evidence led before it and the newspaper clippings/reports came to the conclusion that the act of the Federal Government, in banning the National Awami Party, was in accord with the material placed before the august Court and that the party and its leaders had not reconciled to Pakistan's existence, integrity and sovereignty. In upholding the order of the Referring Authority in banning the party, the Court did not soley rely on the newspaper clippings or columns published in newspapers but considered other evidence as well. It held "nevertheless it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible, particularly, where they happened to be events of local interest or of such a public nature as would be generally known through the community and testimony of an eye-witness is not readily available. The contemporary newspaper account may well be admissible in evidence in such circumstances as has often been done by Courts in the United States of America not because they are `business records' or `ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony". Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, MNA PLD 1976 SC 57, at 1

12. In considering the evidentiary value of the newspaper reports, the Court relied on two judgments namely Dunlop v. United States 165 US 486 41 Led. 799 and Sher Muhammad v. The Crown PLD 1949 Lah. 510.

7. In the former case, the U.S. Supreme Court upheld a judgment of conviction where the defendant was accused of dispatching copies of the Chicago Dispatch (Independent Afternoon Daily Paper) at the Post Office for mailing and delivering to certain persons and the paper contained certain advertisements which were obscene, lewd and indecent and held that the publisher was liable for the alleged act of depositing it in the post office. The trial Court, in the said case, did not base its judgment of conviction soley on the copies of the newspaper reports but also considered the oral and documentary evidence which furnished corroboration. Sher Muhammad v. The Crown PLD 1949 Lah. 510 is a case decided by the Special Bench of the Lahore High Court constituted under the Indian Press Emergency Powers Act (XXIII of 1931). Petitioner in the said case was an owner of the printing press, which had published a book titled "INQILAB-E-CHIN ZINDABAD". According to the Government it had brought into hatred or condemned the Government within the meaning of the Press and the Registration Act, 1867. Petitioner acknowledged having published the book but disputed that the afore referred charge had been established. The Court accepted the petition and set aside the notices. In both the cases, referred to above (which had been relied upon by the august Supreme Court in Abdul Wali Khan's case (supra), the publisher of a newspaper or periodical or a book were in the dock and certainly the newspaper and the material were relevant and had to be considered as evidence.

8. The cases cited above are am exception to the general rule that privately printed books, publications, newspapers or periodicals are not ordinarily admissible in evidence with regard to the facts stated therein. This exception has been taken note of in American Jurisprudence (Second Edition), Volume 29, published by the Lawyers Cooperative Publishing Company, Rochester, N.Y., Bancroft Whitney Company, San Francisco, Calif, 1967, at page 885, and it has been commented as under:-- " ... But when proof is. made that one usually reads a newspaper and that it has probably been brought to his attention, the newspaper may be offered in evidence for the purpose of showing that such person had notice of its contents, especially when better proof cannot be produced. Also, when it is shown that a person is the author of, or otherwise responsible for, statements or articles in newspapers, they may of course be used against him. In actions for defamation of character, newspaper articles and reports are often admitted in evidence to show that nature of the defamatory matter or to prove malice. It has been held that in matters of local interest, when the fact in question is of such a public nature that it would be generally known throughout the community, and when the questioned fact occurred so long ago that the testimony of an eye-witness would probably be less trustworthy than contemporary newspaper account, a Federal Court may relax the exclusionary rules to the extent of admitting the newspaper article in evidence."

9. An 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.

10. The case in hand would not fall in the afore-referred class oil cases. It is not the publisher or a printer who is in the dock but the entire I process of Referendum is sought to be annulled merely through newspaper reports and articles. The subtle distinction between the two streams of authorities was very ably explained by Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan. According to him, a comparative study of the precedent case-law where the Courts have given credence and relied upon the press reports and articles and those cases where the Courts have not extended credence to such, material would show that in the former category of cases the Courts were called upon to pronounce a judgment on the opinion/action of an executive authority and the considerations which. weighed with the Court, inter alia, were as to whether those reports had nexus with the reasons given by the authority for the decision in question, whereas in the latter category of cases where the challenge was thrown to the assumption of office or enjoyment of certain right over property, the Courts did not rely upon the newspaper reports and articles. The criterion in both the class of cases is different. In 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 the precedent case-law or the dissolution of assemblies i.e. Beg um Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLC ' 1977 SC 657, Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD -1992 SC 646, Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Syed Zafar Ali. Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD,2000 SC 869, the Courts were called upon to decide whether the grounds stated in the order passed by the executive authority, had been supported by the material placed before the Courts which included newspaper clippings etc. It is not petitioner's case that no direct evidence is available. The case, therefore, would not qualify for relaxation of hearsay. rule of exclusion of evidence.

11. The distinction between the' two streams of authorities was brought into focus in Mohtarma Benazir Bhutto v. President of Pakistan and 2 others PLD 2000 Supreme Court 77 wherein the petitioner had sought review of the judgment of the august Supreme Court where the Dissolution of Assemblies Order was upheld: In the review application it was, inter alia, pleaded that the findings given in the judgment upholding the Dissolution of National Assemblies may affect petitioner's political career, her right to contest, the elections in future and the prayer made was that the findings in the said judgment should not be considered as proof of allegations in any other judicial forum. The then learned Attorney-General or Pakistan (late Ch.Muhammad Farooq, Advocate) was confronted with the afore-referred apprehension of the petitioner in the said case who very frankly conceded that the observations made in the said judgment were based on tentative appraisal of material placed before the Court with reference to upholding the order of dissolution of assemblies as well as the grounds specified in Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 and not beyond that. The august Supreme. Court; quoted with approval, the following observation of the then Acting Chief Justice of-the Sindh High Court, Karachi (Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Karachi 1) at page 53:-- , .......It is not permissible in these proceedings to investigate the correctness or otherwise of the assertion made on the basis of the above material as it is outside the scope of the powers of judicial review but this much can be safely said that the grounds of horse-trading and corrupt practices of the house referred by the President in his dissolution order finds till support from the above material and bear reasonable nexus to the conditions prescribed under Article 58(2)(b)-of the Constitution."

12. 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 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 annul the entire result of Referendum spread over thousands of Polling Stations.

13. The Court, more than once, asked the petitioner as to how, in the afore-referred circumstances in these proceedings, should Court quantify the alleged rigging in absence of any evidence and with this limited material on record. Particularly, when admittedly neither the petitioner nor any individual or any political party filed any complaint with the Election Commission of Pakistan from Peshawar to Karachi. Petitioner had nothing to say except to reiterate his contention that this Court may form an opinion after reading .the newspapers reports, clippings and articles annexed with this petition. 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.

14. 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.

15. This case, we may observe before parting, has raised lot of hype and hope. 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, according to him, may uphold democracy and rule of law. Constitutional Courts have increasingly been called upon to decide cases and issues, which may not even strictly fall within their domain. To a certain extent this is part of a broad worldwide trend and may also be attributable to the country's specific phenomenon of institutional erosion. Individuals may have dreams or visions of how things ought to be and how State institutions should function. Democracy, however, cannot be brought about merely by noble thoughts, words or pronouncements. There is no magic wand, which can herald the dawn 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. For, it takes an effort, a people and a village to make a civil society.

16. Petitioner's rhetoric put this Court in humility and caution. Courts cannot make up for the loss of the years homework not done, for the "road not taken" and for the lopsided priorities pursued. Judges, sitting in these proceedings cannot arrogate to themselves the role of Platonic Guardians and act beyond the Constitution or get embroiled in the passions of day. They are under a mandate to remain within the parameters of their lawful authority. As aptly observed by Justice Felix Frankfurter:

"It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a. fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of- the essence in the observance of the judicial oath, for the Constitution has not authorized the Judges to sit in judgment on the wisdom of what Congress and the Executive Branch do." [(Trop. v. Dulles 356 US 86, 120(1958)].

17. For what has been discussed above, we do not find any merit in II this petition, which is hereby dismissed. M.B.A./P-181/1 Petition dismissed.