ORDER SHARIF HUSSAIN BOKHARI, J. - Through this Constitutional Petition the petitioner has sought a direction to be issued to the Federation of Pakistan to make arrangements for holding referendum on the question of introducing 'residential System of Government in Pakistan instead of prevalent Parliamentary System.
2.. The brief facts, as given in the Writ Petition, are that the petitioner is an Advocate of this Court and a citizen of Pakistan who states that for stronger Pakistan, better economic conditions, removal of social evils and poverty, lessening the burden of international debts and enforcing rule of law.
Presidential System of Government is imperative.
3. Article 199 of the Constitution of the Islamic Republic of Pakistan. 1973 (hereinafter referred to as "the Constitution") under which this petition has been filed, inter alia, reads as under "199 (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided bylaw,-'
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do;
4. To maintain a writ petition under Article 199 (1) of the Constitution, the petitioner has to establish that he is an 'aggrieved party1 and that any.Of his rights, personal or proprietary, are being adversely affected, for the redressal whereof an order or a direction by this Court is necessary.
When asked how the petitioner is aggrieved in terms of Article 199 of the Constitution.- he In this connection "the petitioner has referred to the following judgments:-
(i) The Montgomery Flour and General Mills versus The Director. Food Purchases, West Pdkistdn and others (PLD 1957 (W.P.) Lahore 914)
(ii) Muhammad Ibrahim versus The Government of Pakistan and others (PLD I960 (W.P.) Lahore 1073}.
(iii) Muhammad Anwar Versus The Government of Pakistan. (PLD 1962 (W.P.) Lahorc 443).
(iv) Muhammad Hisamudding Ansari Versus Chief Secretary. Sindh and K Oliver (1990 CLC 1766).
(v) Khawaja Muhammad Sharif Versus Federation of Pakistan and IS others (PLD 1988 Lahore 725).
5. However, these judgments have no bearing on the point, as in none of the judgments it has been laid down that a citizen of the country can be treated as aggrieved person for the purpose of Article 199 (l)(a) to seek a direction from this Court in the nature of a writ of mandamus that the President or the Prime Minister shall cause the matter to b^referred to a referendum of the people.
6. 1 am afraid, the petitioner's this contention is misconceived. He cannot he termed as an ' aggrieved, parly' under Article 199 (1) of the Constitution, merely because he, as a citizen, does not like Parliamentary System. By an aggrieved person it has to be shown that some of his personal or proprietary rights are being adversely affected by some action or non-action of the functionaries of th Government or a local authority. Reference may be made to M/s. Associatet Cement Companies Ltd. Versus Pakistan through the Commissioner of Income-Tax, Lahore Range, Lahore and 7 others (PLD 1978 SC 151), Khalid Javaid Mali Versus The State and another (PLD 1979 Lahore 260) Aminullah and aiunhe Versus The Member, Board of Revenue-H, Bdlochistan. Quetta and 4 others (PL1 1982 Quetta 73). Thus the petitioners is not an aggrieved person and has no locn.
Standi to file this petition. Besides.' the petitioner failed to show that he has am particular ground for claiming such performance. Reference is made to th following passage of the Judgment of the Hon'ble Supreme Court in Islami Republic of Pakistan Versus. Muhammad Saeed (PLD 1961 SC 192):- .
"It is necessary in order to entitle a person to ask for the performanc of any public duty by mandamus to show that he has some partieult ground for claiming such performance, apart from the fact that he interested in the performance of such a duty as a member of class persons, all of whom are equally interested therein. As observed in tl case of The Queen r. The guardians of the Lewisham Union (1897)
B. 498, the Courts have never claimed to exercise a general power enforce the performance of statutory duties b> public bodies on tl application of anybody who chooses to apply but have always roquir that an applicant should have a legal and specific right in him to enforce the performance of such duties."
7. The petitioner has based his argument on the*interpretation of Article 48(h) of the Constitution which reads as foilows:- "If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is tapable of being answered either by "Yes" or "No"."
8. Article 48(6) of the Constitution no doubt envisages reference to referendum of any question of national importance by the President, in his discretion or on the advice of the Prime Minister, which can be answered by "Yes" or "No". A bare reading of this provision of the Constitution shows that it is discretionary with the President, or the Prime Minister to advise (he President, to refer any question of national importance to a referendum of the people of Pakistan. The Constitution of Pakistan has given this discretion to and left to the President of Pakistan and the Prime Minister which cannot be enforced through the process of this Court. It is an established rule of law that where a particular person or authority has discretionary power, the Court in the exercise of writ jurisdiction cannot issue any direction to exercise^ that discretion and to do a particular thing, unless so ordained by law.
9. The Constitution of Islamic Republic of Pakistan, 1973, provides trichotomic system, where all the three organs-of the State, namely, the Executive, the Legislature and the Judiciary are to act within their on. Spheres. Therefore, this Court shall not interfere with the matters pertaining to the exclusive domain of the Executive, unless it is shown that any order, action or inaction of the Executive Authority is in violation of any provisions'of the Constitution or the law or suffers from any other legal infirmity, In this connection the following passage of the Hon'hie Supreme Court's judgment in "Stale Versus Zia-ur-Rahman" (PLD 1973 SC 49) is usefully reproduced "As the learned Attorney General has hiifiself conceded, in the case of a Government set up under a written Constitution, the functions of the State are distributed amongst various State functionaries and their respective powers defined by the Constitution. The normal scheme under such s system, with, which we are familiar, is to have a trichotomy of powers between the executive, the Legislature and the judiciary:.
10. The question whether there should be Presidential System or the Parliamentary System of Government in Pakistan has already been decided by the people of this country through their chosen representatives who framed the Constitution of Pakistan, 1973, which provides a Federal Parliamentary System of Government for Pakistan. This is particularly menifest from Articles 46, 48, 90.91 and 92 of the Constitution. Reference may also be made to the following passage of the Full Bench judgment of the learned Peshawar High Court in "Aftab 'Ahmad Slierpao Versus Governor"
(PLD 1990 Peshawar 192):- "We shall be negating the spirit of the Parliamentary Government which is engrained in the structure of the Constitution if we agree with the learned counsel for respondent No.3 that outside a few limited functions of the President which are specifically to be performed on the advice of the Prime Minister, rest of the functions of the President are to be performed by him independently of the advice of the Cabinet or the Prime Minister. In the circumstances, we are of the opinion, firstly, the enough material was not placed before us to prove that prior approval of the President which is an essential prerequisite for dissolving a Provincial Assembly was ever obtained. Secondly, assuming that the same, was obtained, the approval was not accorded by the President on the advice of the Prime Minister."
11. The petitioner was unable to show any legal and specific right in him which was sought to be enforced through' an order of the nature of the writ of mandamus. Accordingly, this writ petition is misconceived and is dismissed in limine