1. ' By this order I intend to dispose of Miscellaneous Application No,16 of 1998 which is an application moved by the Government of Sindh through its Additional Advocate-General Mr. Sarwar Khan, claiming protection and immunity in relation to Mr. Liaquat Ali Jatoi, Chief Minister Sindh, under Article 248 of the Constitution of the Islamic Republic of Pakistan, 1973. Earlier this Court through its order, dated 27th February, 1998 had ordered, inter alia; for the appearance of Mr. Liaquat Ali Jatoi in Court on 4th March, 1998 at 10-00 a.m. To assist this Court in disposing of the present Ehtesab Reference by making a statement on oath as to how many plots have been allotted by him during his tenure as the Chief Minister. In this respect the Chief Minister was also directed to be ready with the necessary documents to apprise the Court about the correct state of affairs. The need for issuing such directions arose when the learned defence counsel appearing for accused Remesh M.
2. Udeshi had earlier submitted an application for calling inter alia, Mr. Liaquat Ali Jatoi as one of the defence witnesses. Such application of the learned defence counsel was perhaps instituted in the wake of the following question put up in cross-examination of P.W. Janib Ali, Senior Clerk D.C. Office Malir, by Mr. Shoukat Hussain Zubedi, the learned Advocate:General Sindh who has been appearing for accused No,3, Mr. Ghulam Mustafa Memon, (the alleged beneficiary in this case.)
3. "Question: (by Mr. Shoukat Hussain Zubedi). Are you aware that since 1990 to 1997 the Chief Ministers had allotted plots in relaxation of rules.
4. ' Answer: (by P.W. Janib Ali). Yes. It is correct."
5. ' Note: Mr. Shoukat Hussain Zubedi, the learned Advocate-General after his appointment as such was permitted by the competent Authority to continue defending the accused as defence counsel in six Ehtesab References and this aspect of the matter is being dealt with separately in Ehtesab Reference. No,24 of 1997 State v. Admiral (Retd.) Akbar H. Khan and others wherein the point was formulated to the effect whether the Government of Sindh was competent to grant permission to its principal Law Officer to continue defending the accused in criminal cases keeping in view the scheme of Ehtesab Act, 1997).
6. ' Mr. Sarwar Khan, the learned Additional Advocate-General has vehemently contended that in view of the provisions of Article 248 of the Constitution, this Court could not call the Chief Minister to make a statement on oath. He has placed reliance on Amanullah Khan and others v. Federal Government of Pakistan PLD 1990 SC 1092 and Hakim Khan v. Government of Pakistan PLD 1992 SC
595. He has further stated that since no mala fide has been alleged against the Chief Minister the immunity is intact under Article 248 in view whereof he cannot be summoned by the Court.
7. ' On the other hand Mr. Amir Hani Muslim has contended that in an Islamic Polity no one is above the law and even the rulers can be summoned to the Court. Additionally, he has stated that the Chief Minister is being called as a Court witness and the provisions of Article 248 in such circumstances do not bar the Chief Minister from being called to the Court as such. Mr. Amir Hani Muslim, has placed reliance upon Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 wherein the learned Shariat Appellate Bench of the Honourable Supreme Court has been pleased to observe that under section 540 of the Code of Criminal Procedure (1898) the Court may in its discretion summon witnesses at any stage of a trial who are not otherwise summoned as witnesses. However, when the Court comes to the conclusion that the testimony of a particular person is essential for a just disposal of a case the Court is under a mandatory duty to call such a witness. Mr. Amir Hani Muslim has contended that in this case summoning the Chief Minister was essential for a just disposal of the cause and accordingly this Court was under a mandatory duty to summon him. The learned defence counsel has also referred to Ch. Zahur Elahi v. Z.A. Bhutto PLD l975 SC 383 and Clinton v. Jones (the citation is from Hermes Internet) for the point that immunity is not available for illegal acts.
8. ' Mr. Muhammad Anwar Tariq, the learned Special Prosecutor has contended that the Chief Minister is being called as a Court witness under section 540,.Cr.P.C. And the immunity under Article 248 of the Constitution is not unbridled. In this regard he has placed reliance upon Mohtarama Benazir Bhutto v. The President of Pakistan PLD 1992 SC 492.
9. In my humble opinion the matter at hand requires interpretation of Article 248 of the Constitution which for the sake of convenience is being reproduced: "248. Protection to President, Governor, Minister etc.--- The President, a Governor, the Prime Minister, and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercse of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claim."
10. ' Article 248(1) provides that amongst others the Chief Minister shall not be answerable to any Court for the exercise of his powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. I feel that the applicability of Article 248 of. The Constitution is being incorrectly mooted. The Court has summoned the Chief Minister to make a statement on oath and not to answer any charge or allegation. The term, "Answer" has been defined in Black's Law Dictionary, Revised Fourth Edition, 1968 Ed. At page 117 as follows: "Answer. As a verb, the word denotes an assumption of liability, as to ' answer' for the debt or default of another. Pleading ' Strictly speaking, it is a pleading by which defendant in suit at law endeavours to resist the plaintiff's demand by an allegation of facts, either denying allegations of plaintiff's complaint or confessing them and alleging new matter in avoidance, which defendant alleges should prevent recovery on facts alleged by plaintiff. In re Herle's Will, 173 Misc. 879, 19 N.Y.S. 2d 263, 265.
11. ' In chancery pleading, the term denotes a defense in writing, made by a defendant to the allegations contained in a bill or information filed by the plaintiff against him."
12. ' The terms, 'answer and answerable' are defined in 'Words and Phrases legally Defined, by John B.
13. Saunders (Vol 1 Butterworths London 1969 page 92) as follows:-- "Answer. 'We are to construe the language of an Act of Parliament in that sense which will best effectuate the obvious intention of the Legislature. Construing the words of (Corrupt Practices Prevention Act, 1863, section 7 (repealed; see now representation of the People Act 1949, section 123), which gives a certificate of indemnity to a witness who shall 'answer' questions)... In that sense, I cannot entertain the slightest doubt that, wherever a reference is made to an answer to a question, the Legislature meant a true answer, an honest bona fide answer,' R.V. Hulme (1870), L.R. 5 Q.B. 377, per Lush, J., at p.388.
14. ' Answerable.
15. "In my humble opinion the word answerable' is merely an equivalent for 'liable': and I observe that their Lordships in the Court of Appeal deal with the expression as having that meaning." River Wear Comrs. v. Adamson (1877), 2 App. Cas. 743, per Lord Gordon, at p.775.
16. "When the Act (Pilotage Act 1913, section 15(1) says that the owner shall be answerable for... Faulty navigation, it has to be determined whether answerable means more than that the damage, whether done to or done by his ship, is his responsibility or is confined to damage done by the ship.
17. Either view no doubt is theoretically possible but I do not think that read in its context the use of the word 'answerable' would naturally convey the suggestion that, though the shipowner is liable for any damage done by the pilot's fault, yet he can recover his own damage in full 'Answerable', as I think, simply means responsible and a shipowner who through a compulsory pilot is responsible for faulty navigation is responsible for damage to his own ship as well as for injury to the property of another'. Workington Harbour and Dock Board v. Towerfield, (1951) A.C.
112. H.L. Per Lord Portey at P.P. 133, 134."
18. ' The above definitions would show that the term 'answer' presupposes some allegation or assumption of liability whereas in the present case the Chief Minister has been called only to make a statement to the limited extent as to how many plots he has allotted during his tenure. In the order, dated 27 February, 1998 passed by this Court such fact was clarified and it was also stated therein that the application moved by the learned defence counsel for summoning defence witnesses would be considered on merits at a later date after the statement of the Chief Minister is recorded. While it is being clarified once again that the Chief Minister has not been summoned to answer any charge of guilt it needs to be clarified that under the Ehtesab jurisdiction the proceedings are criminal or quasi-criminal in nature and under section 12(3) of the Ehtesab Act, 1997 the Court has an option and is, thus, empowered to adopt and follow any procedure which it may find fit and proper in the circumstances. See The State v. Nisar Ahmed Khuro PLD 1998 Kar.
88. The present proceedings are criminal/quasi-criminal in nature for which the Chief Minister would not in any event be entitled to an immunity in view of sub-Article (2) of Article 248 which provides only for an immunity against criminal proceedings in relation to the President and the Governor during the tenure of their respective offices. In my humble opinion even if it is assumed for arguments sake that the Chief Minister is being charged for a criminal offence or is being dragged in Ehtesab Proceedings which are criminal/quasi-criminal in nature under the Ehtesab Act, 1997 he shall not have any immunity. On an analogical reasoning the Peshawar High Court in State v. Syed Iftikhar Hussain Gilani PLD 1991 Pesh. 143 was pleased to decline the claim of immunity, under Article 248 tean accused Federal Minister, while holding that he was not immune from criminal proceedings even during his tenure as such muchiess after he ceased to hold the portfolio.
19. ' I accordingly reject the stance taken by the learned Additional Advocate-General in relation to Article 248. The Chief Minister in the present circumstances is not entitled to any immunity since he is only directed by this Court to appear and make a statement on oath for the limited extent as stated above. In this Court's discretion I am also exercising my powers under section 540 of the Code of Criminal Procedure to call him as a witness to the limited extent as stated above for the time being. It is needless to stress that the reasons for exercising such discretion are manifold.
20. Firstly, Chief Ministers are known to exercise their own discretion in relaxation of rules while allotting plots. Such allotments are made by the Chief Ministers themselves. Law favours direct testimonies rather than any hearsay evidence. The Chief Minister has to come to this Court and give a statement with regard to his own actions. Secondly, once a specific plea is raised by the learned defence counsel for the accused, albeit even against the persons in power, it is the Court's duty to ensure the conduct of proceedings is in a manner where justice is not only done but manifestly seen to have been done. Those in power cannot be given any preferential treatment. We are a nation where the Qui.' anic Laws have to reign supreme. Our Islamic history is replete with several illustrations where the pious Caliphs have appeared before Qazis to explain their actions. This is but the essence of a transparent accountability process.
21. ' The upshot of the above discussion is that Mr. Liaquat Ali Jatoi, Chief Minister, Sindh is directed to appear on 2-4-1998 at 8-45 a.m. For the purpose of making a statement on oath as to how many plots he has allotted during his tenure. He should also be ready with the relevant record/information which may be produced or disclosed if the Court makes any such requisition.