' IRSHAD HASAN KHAN, J.---Through this common order we propose to dispose of Criminal Petitions Nos.46 and 47 of 1999 alongwith with Criminal Miscellaneous Nos.55 and 56 of 1999 respectively, having been directed against the common order, dated 1-3-1999, passed by the learned Ehtesab Bench, Lahore High Court, Rawalpindi Bench, Rawalpindi, issuing commission to Mr. Moazzam Hayat, Registrar, Lahore High Court, Lahore to visit Switzerland, to compare the certified copies, produced in evidence by the prosecution with the documents in the original record, collected by Judge, Daniel Davaud and also to verify the authentication of certified copies.
2. The prosecution story, as stated in the petitions, is that the learned Chief Ehtesab Commissioner filed Reference No,30 of 1998 before the learned Ehtesab Bench, Lahore High Court under section 15(1) of the Ehtesab Act, 1997 (hereinafter referred to as the Act), on 14-3-1998 against the petitioner and 12 others alleging therein that the petitioner, ex-Prime Minister of Pakistan, Mr. Asif Ali Zardari, ex-Federal Minister and spouse of the petitioner and Mr. A.R. Siddiqui, ex-Chairman, C.B.R. By abusing their authority as holder of public office, in collusion with each other and in collaboration with Messrs Societe Generals De Surveillance S.A. (SGA), awarded contract of Pre-Shipment Inspection (PSI) to Messrs SGS in consideration for illegal gratification and undue pecuniary advantages in the form of kickbacics/commissions and bestowed upon the said company other favours/concessions resulting in colossal loss to the public exchequer.
3. It was also alleged in the Reference that on 11-3-1994, Messrs Societe Generale De Surveilance S.A. (SGS) a firm dealing in Pre-Shipment Inspection of imports/exports, gave a written undertaking to Jens Schelegelmilch, sole Director/President of Bomer Finance Inc., duly owned by Asif Ali Zardari, stating therein inter alia that in consideration for his active support and assistance in connection with the promotion and negotiation by Messrs SGC of an import verification programme with the Government of Pakistan, they shall pay him a consultancy fee corresponding to 6% (six per cent) of the total amounts paid to, and received by them from the Government of Pakistan in accordance with the terms of the contract. Jens Schelegelmilch on behalf of Bomar Finance Inc., agreed and signed the letter which shows that the consultancy fee referred to in the letter was, in fact, commission/kickbacks in return for getting the Pre-Shipment Inspection contract from Government of Pakistan.
4. It was also alleged that Mr. Asif Ali Zardari showed unprecedented concern regarding the affairs of P.S.I. Companies and intervened to secure maximum facilities for them and also, without any legal authority, used to chair meetings to resolve the so-called issues of P.S.I. Companies.
5. It was further alleged that Pre-Shipment Inspection contract, was awarded to Messrs SGS in consideration for 6% (six per cent) commission/kickbacks of total amount received by Messrs SGS from Government of Pakistan. The Commission/kickback was offered/paid to offshore company, namely, Bomer Finance Inc. Owned by Mr. Asif Ali Zardari, his fiduciary agent Jens Schelegelmilch, and sole Director/President of the said company. The ultimate beneficiaries of these commissions/kickbacks were the petitioner and her husband Asif Ali Zardari and Jens Schelegelmilch worked as fiduciary agent of the petitioner and Mr. Asif Ali Zardari, in establishing a network for receiving/collecting the kickbacks and commissions in this case offered by Messrs SGS Inspection S.A. Thus, Jens Schelegelmilch and the accused Directors of Messrs SGS besides being beneficiaries facilitated and aided the commission of the offence.
6. After filing of the Ehtesab Reference by the Chief Ehtesab Commissioner against the petitioners and other, charge was framed and evidence led by the prosecution in this behalf. After the close of the prosecution evidence the petitioner's statement was recorded under section 342 of the Code of Criminal Procedure Code 1898 (V of 1898), (hereinafter referred to as the Code) and the defence evidence was to be led by the petitioners.
7. The matter came up for hearing on 1-3-1999 and the learned Ehtesab Bench passed an order for production of defence evidence by the petitioner and adjourned the case for 8-3-1999 for this purpose. During the proceedings of the case the Special Public Prosecutor pressed the plea taken in the written reply on behalf of Hasan Wasim Afzal, P.W.14, for issue of commission to verify the genuineness of the authentication of certified copies of documents tendered in evidence by the prosecution. It is alleged that no order was passed when the case was adjourned in presence of both the parties. At about 4.00 p.m. It was communicated by the Additional Registrar of the Lahore.
High at Rawalpindi to Mr. Farooq H. Naek, Advocate, on telephone, that the impugned order has been passed by the learned Ehtesab Bench and despite request, copy of the order was not provided.
8. Mr. Iftikhar Gillani, submits that the application under section 476 of the Code was moved on 22- 2-1999, statement of the petitioner under section 342 of the Code was recorded on the same day and the case was later adjourned to 23-2-1999 for filing the list of defence witnesses. The statement of Senator Asif Ali Zardari was recorded on 23-2-1999 and the case (Ehtesab Reference No,30 of 1998) was adjourned to 1-3-1999 for recording defence evidence.
9. The impugned order is ought to be quashed, inter alia, on the following grounds taken in the petitions for leave to appeal:--
(a) The impugned order has been passed without jurisdiction and lawful authority. No commission could be issued under the law to verify the genuineness of the authentication of certified copies of documents tendered in evidence by the prosecution.
(b) That the impugned order amounts to fill up the lacuna of the prosecution. Even otherwise the order passed by the learned Ehteasab Bench at the back of the petitioner is totally illegal. No formal request in writing by the Special Public Prosecutor has been made to the learned Ehtesab Bench therefore, the impugned order has been passed without application of judicial mind. This rather gives as impression that the learned Ehtesab Bench has by itself taken the duty of the prosecution as the impugned order has been passed a' ter adjourning the matter in presence of both the parties.
(c) The impugned order has been passed in an arbitrary manner which is in violation of principle of natural justice as well as fundamental rights of the petitioner guaranteed under the Constitution.
(d) By the impugned order there is an abuse of process of law and against the ends of justice.
' However, during the course of arguments, Mr. Iftikhar Gillani, learned counsel for the petitioner (Mohtarma Benazir Bhutto), elaborated his contentions as follows:--
(a) There is no provision in the Code for issue of commission to examine documents;
(b) The impugned order was passed without hearing the petitioner and after the Court hours, when the case had already been adjourned to 8-3-1999;
(c) Notice to the petitioner for appearance in Geneva did not permit time enough to the petitioner to be personally present there or through a representative;
(d) According to Swiss Law (Code of Criminal Procedure, Republic and Canton of Geneva), applicable to the proceedings before the Investigating Magistrate are secret, and the request of the Government of Pakistan has already been declined for association with the proceedings by the Chamber of Appeals of Geneva vide order, dated 2-10-1998 and also by the Swiss Federal (Supreme) Court vide order, dated 13th January, 1999.
(e) No reciprocal arrangement exists between the Government of Pakistan and the Federal Republic of Switzerland regarding issuance of commission;
10. Mr. Farooq H. Naek, learned counsel for Senator Asif Ali Zardari, in Criminal Petition No,47 of 1999, raised the following pleas:--
(a) The impugned order has been passed without hearing the petitioner;
(b) It has been passed to fill up the lacunae of the prosecution;
(c) The petitioner's statement under section 342 of the Code was recorded on 23-9-1999, after the prosecution had closed and rested their case;
(d) Section 503(2-B) of the Code does not stipulate the issuance of the commission in the manner it has been done by the learned Ehtesab Bench;
(e) It is not the function of the Court to collect evidence for the parties;
(f) The Court cannot acquire power, which has not been conferred on it by the statute because it amounts to circumvention and clearly defeating the intention and purpose of the law maker;
(g) Without prejudice to the above pleas, issuance of commission in the absence of the parties is most unsatisfactory.
(h) The petition is competent and the petitioner has locus standi to approach this Court, inasmuch as, the impugned order was passed not only for comparison by the commission, of the certified copies tendered in evidence, by the prosecution, with the original but also fur the purpose of deciding the main case, which will cause prejudice to the petitioners.
11. Reliance was placed on various provisions of the Federal Act on International Mutual Assistance in Criminal Matters, known as (IMAC), of 20th March, 1981, (as amended on the 4th of October, 1996), with particular reference to Articles 8,.63, 65, 90 and repealed Articles 82 and 84, to contend that no reciprocal arrangement exists between the two countries regarding issuance of commission. Reliance was also placed on Ratilal Bhanji Mithani v. The State of Mashrashtra (AIR 1972 SC 1567), to highligh the pre-requisites for issue of foreign commission. Reference was also made to the case of Habibullah Majumder v. Nikhil Poddar (AIR 1970 Tripura 93), to contend that a party has no right to issue of commission where no reciprocal arrangement exists between the countries. Case of Sardul Singh v. Emperor (AIR 1926 Lah. 567), was also quoted to contend that examination of a witness in the absence of the complainant or accused, is most unsatisfactory in criminal cases. Reference was also made to "Rules and Orders of the Lahore High Court, Lahore"
Volume-I, regarding the commission and letters of request and for the examination of the witnesses in foreign countries.
12. Criminal Miscellaneous Application No,55 of 1999 in Criminal Petition No,46 of 1999, came up for hearing in Chambers before my learned brother Saiduzzaman Siddiqui, J., on 4-3-1999, who was pleased to pass the following order:-- "The learned counsel contend that the order, dated 1-3-1999 was passed by the learned Ehtesab Bench after the case was adjourned and the counsel was notified at 0400 p.m. On 1-3-1999 regarding the order passed by the learned Ehtesab Bench without hearing counsel of the parties. It is further contended that through another notice received from the Registrar of Lahore High Court petitioner Ms. Benazir Bhutto has been directed to be present in Switzerland on 5-3-1999 while no such notice was addressed to the counsel for Asif Ali Zardari, the other petitioner in the case. This notice was received through fax by the counsel on 3-3-1999 and as such in these circumstances, it is contended by the learned counsel, it was humanly impossible either for the parties or their counsel to be present in Switzerland, as directed in the notice.
"Let notice of these applications be issued to the Ehtesab Commissioner as well as Attorney- General for 8-3-1999 and till then the commission should not be executed."
13. The matter again came up for hearing in Criminal Miscellaneous Applications Nos.55 and 56 of 1999 in Criminal Petitions Nos.46 and 47 of 1999 on 8-3-1999, whereupon my learned brother Saiduzzaman Siddiqui, after hearing the learned Attorney-General for Pakistan and Mr. Iftikhar Gillani, Advocate Supreme Court and Mr. Farooq H. Naek, Advocate Supreme Court, passed the following order:-- "According to the statement of learned Attorney-General, the commission appointed in the cases left Pakistan on 3-3-1999 before passing the order staying execution of the commission. In these circumstances, I am not inclined to extend the stay granted in the cases. The petitions, alongwith stay applications, may be fixed in Court tomorrow, the 9th of March, 1999."
' In consequence of the above order, these petitions alongwith the stay applications have been listed for hearing before this Bench.
14. Mr. Iftikhar Gillani, learned counsel for the petitioner in Criminal Petition No,46 of 1999 has alleged that Mohtarma Benazir Bhutto, had been directed to be present in Switzerland on 5-3-1999 through an ex parte order and behind her back. The precise submission of the learned counsel for the petitioner is that the learned Ehtesab Bench, passed orders of issuance of commission behind the back of the petitioners in violation of the principle of audi altram partem, therefore, any proceedings taken and acts done by any authority, Court or Judge in Switzerland and/or in Pakistan, pursuant to the impugned order, are wholly without jurisdiction, coram non judice and non existence in the eye of law.
15. Ch. Muhammad Farooq, learned Attorney-General, for Pakistan, appearing on behalf of the respondents, has made the following submissions:--
(1) Written reply to the Criminal Miscellaneous No,17 of 1999 was filed before the learned Ehtesab Bench, Lahore High Court, Rawalpindi Bench, on 1-3-1999, in which it was, inter alia, contended that all the documents produced in the prosecution evidence were genuine documents, bulk of which are part of judicial record received from Switzerland through official channel. In the said written reply, it was further suggested in good faith and for advancement of justice that despite the fact that the record was genuine and certified in accordance with law, it might be in the interest of justice and expedient in the circumstances of the case that the learned Ehtesab Bench was pleased to issue commission to Mr. Moazzam Hayat, who is visiting Switzerland, to examine the documents collected by Judge Mr. Denial Devaud and compare the certified copies produced in evidence before the learned Ehtesab Bench with the said original documents.
(2) The learned Ehtesab Bench in a most just and equitable manner exercised its judicial discretion and, after hearing both the parties, passed a detailed order, dated 1-3-1999 wherein it was held that it shall be in the interest of justice, to issue commission for comparing the copies with the original record at State expense. The learned Ehtesab Bench, in exercise of such discretion, issued commission appointing Mr. Moazzam Hayat, Registrar, Lahore High Court, to visit Switzerland, to compare the certified copies produced in evidence by the prosecution with the documents in original record, collected by Judge Mr. Denial Devaud and also to verify the authentication of certified copies. The Applicant or her representative and Respondent in Criminal Miscellaneous No,17 of 1999 were also entitled to associate in the proceedings conducted under the commission, if they so desire. Not only the learned counsel Dr. Z. Babar Awan, Advocate, but, also the Petitioner hereself addressed the Ehtesab Bench on the said application on 1-3-1999.
(3) Subsequently, Mr. Moazzam Hayat, Registrar, Lahore High Court, to whom the commission was issued notice, dated 3-3-1999 to the petitioner giving intimation that the examination of the documents for authentication shall be made by him in the Chambers of Judge Denial Devaud, High Court of Justice, Geneva on 5-3-1999 on 11.30 a.m. Local time to enable the petitioner or her representative to associate in the said proceedings, if they so desire. Mr. Moazzam Hayat, accordingly left for Switzerland on 3-3-1999 to complete the assignment before the issuance of the stay order, dated 4-3-1999. It is further submitted that the said stay order was recalled on 8-3-1999 vide order passed by Mr. Justice Saeeduzzaman Siddiqui, J. In Chambers.
(4) No application of the nature of Criminal Miscellaneous No, 17 of 1999 was moved by Mr. Asif Ali Zardari (Petitioner in Crl.P.L.A. No,47 of 1999), and, thus, he has no locus standi to file Criminal Petition for Leave to Appeal No,47 of 1999.
(5) The order, dated 1-3-1999 is a lawful and valid which has been passed by the learned Ehtesab Bench in its judicial discretion to advance the cause of justice and to arrive at a just and conclusive finding in the matter.
(6) Under section 5(2), of the Code all offences tried under any law other than Pakistan Penal Code are to be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiry into, trying or otherwise dealing with such offences. The trial of the petitioner is being conducted under the Act and according to section 12(3), (ibid), the Court (the Ehtesab Bench), notwithstanding anything contained in subsection (1) or subsection (2) of section 12 or any law for the time being in force, may for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(7) The issuance of the commission to examine and compare the documents produced before it with the original documents in Switzerland is in the best interest of justice and is not prohibited under any provision of law. It may also be submitted that, under section 561-A of the Code, the Courts are vested with inherent powers to pass orders to secure the ends of justice.
(8) The order dated 1-3-1999 was passed, after hearing both the parties in the matter, and is fully supported by law. By adopting the procedure of on the spot inspection and comparison of the documents, the learned Ehtesab Bench has only advanced the cause of justice which is in the interest of both the parties. There is no provision of law which prohibits or precludes a Court from adopting a procedure not prohibited by law'for securing the ends of justice In fact, the present petition has been filed only to defeat, delay and thwart the proceedings before the Ehtesab Bench, The petitioner Mr. Asif All Zardari, who had not even filed any Criminal Miscellaneous Application of the nature of Criminal Miscellaneous No,17 of 1999, has no locus standi to file the Crl.P.L.A.
16. The learned Attorney-General further reiterated that the petitioners are adopting dilatory tactics to prolong the proceedings before the Ehtesab Bench, inasmuch as, they have so far moved nearly one hundred applications on one pretext or another. The instant petitions had not been move bona fide but with the sole purpose to delay the proceedings. The petitioners have wrongly asserted that in the reply of the respondent no formal request, in writing, by the Special Prosecutor, had been made to the learned Ehtesab Bench, inasmuch as, such a prayer was clearly made in reply on behalf of Hasan Wasim Afzal in Criminal Miscellaneous No,17 of 1999. The leaned Attorney-General, however, frankly concedes that no reciprocal arrangement exists between the Pakistan and Switzerland for issuance of commission and no notification under section 503(2-B) of the Code has been issued in this behalf.
' Learned Attorney-General further urges that the impugned order is well reasoned and has been passed by proper application of judicial mind. He explained that in response to "Pakistan Mutual Assistance in Criminal Matters", the Judge of Swiss Authority, allowed the request. In consequence, the documents in dispute, were collected by the Government of Pakistan. Those documents were duly certified by the Magistrate/Judge at Geneva, duly authenticated by the Embassy of Pakistan as required under Article 89(5) of the Qanune-e-Shahadat Order, 1984. The documents, in question, were delivered by the Swiss Authorities to the Government of Pakistan through the Ambassador of Pakistan at Switzerland and the latter transmitted them to the foreign office and ultimately received by the Attorney-General for Pakistan and the same were passed on to the Special Prosecutor, somewhere in September, 1998, for the purpose of Reference No,30 of 1998 and Reference No,26 of 1998, etc. He asserts that .The above documents as originally received from Switzerland were produced before the Ehtesab Bench, seized of Ehtesab References Nos.26 of 1998 and 30 of 1998. The latter is pending before the Ehtesab Bench, comprising Mr. Justice Malik Muhammad Qayyum and Mr. Justice Najamul Hassan Kazmi. The impugned order in this petition arises out of Ehtesab Reference No,30 of 1998. He further submits that examination-in-chief of P.W.14 was fixed in November, 1998 and continued up to middle of February, 1999. He was subjected to lengthy cross-examination. On every documents, a question was put to him that he had fabricated the documents to which the witnesses replied in the negative. The witness asserted that it was a genuine document. However, on 18-2-1999, when prosecution evidence stood closed and all suggestions as to fabrication of the said documents were denied, an application was moved, under section 476 of the Code, which resulted in the passing of the impugned order.
' Mr, Attorney-General submits that the above background of the case may be taken into consideration for determination of bona fide or otherwise of the petitioners in approaching this Court. He further submits that, in the facts and circumstances of the case, section 503(2-8), was not attracted, therefore, resort was rightly made by the learned Ehtesab Bench to the provisions of section 561-A of the Code, read with section 5 thereof, and sections 12, 18 and 28 of the Act. Reading all the provisions together, the learned Attorney-General reiterates that, in the interest of justice, the learned Ehtesab Bench, in a most just and equitable manner, exercised its judicial discretion, to which no exception can be taken. He vehemently reiterates that the impugned order was interim in nature. The petitioner will be at liberty to raise whatever objections available to them under the law on the report of the Commissioner before the learned Ehtesab Bench. They shall also be at liberty to raise all these pleas in appeal, if the reference is decided against them. It is urged that the petitions, being premature, merit dismissal by declining leave to appeal. He emphasises that Senator Asif Ali Zardari has no locus standi to move the petition.
' In rebuttal, Mr. Iftikhar Gillani, made a statement at the Bar that the impugned order was passed without hearing the petitioner. He further submits that although Mohtarma Benazir Bhutto made a brief submission before the Court but no arguments took place on the issuance of the commission.
Mr. Farooq H. Naek placed reliance on Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275) and Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) to contend that the powers under section 561-A of the Code cannot be exercised mechanically or in every case, where there is allegation of false implication or of the evidence being false and that in any case, the power under the aforesaid section is not normally to be invoked where another remedy is available.
17. We have heard the learned counsel for the petitioners and Ch. Muhammad Farooq,. Learned Attorney-General for Pakistan. Admittedly, Mr. Moazzam Hayat, Registrar Lahore High Court, to whom commission was issued, left Pakistan on 3-3-1999 and the order staying the execution of the commission was not extended by order dated 8-3-1999 (supra). Be that as it may, the legality of issuance of the commission, in the facts and circumstances of the case, is yet to be examined. The mere fact that the person who has been named in the commission has already left for Switzerland would not affect the right of the petitioners to seek leave to appeal against the impugned order and to show whether or not the learned Ehtesab Bench has acted justly, fairly and in accordance with law while passing the impugned order of issuing commission.
18. The basic dispute in this case relates to authenticity and genuineness of certain copies of various foreign documents, alleged to be certified, bulk of which were allegedly part of judicial record, received from Switzerland allegedly through official channel.
19. Criminal Miscellaneous No,17 of 1999 in Ehtesab Reference No,30 of 1998, was moved by Special Prosecutor praying for the issuance of commission to a judicial officer to visit Switzerland for the purpose. The prayer clause in the application reads thus:-- 'Be that as it may, it would be in the interest of justice and would also be expedient in the circumstances of the case that this Honourable Court may appoint a commission to visit Switzerland, examine the documents collected by Judge Daniel Devaud and compare the certified copies produced in evidence before this Honourable Court with the said documents, so that the frivolous allegations which are false to the knowledge of the accused can be discarded and laid to rest.
(5) Wherefore, it is respectfully prayed that the application under reply may kindly be dismissed and a commission consisting of a judicial officer be appointed to go to Switzerland to examine the record available with Judge Daniel Devaud and compare the said documents with the certified copies produced before this Honourable Court."
20. The provisions of the Code, mutatis mutandis, apply to the proceedings under the Act, by virtue of section 12 thereof. Subsection (2) whereof provides that the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as "it may deem fit" in the circumstances of the case.
21. The phrase as it may deem fit" used in section 12(3) of the Act, clearly signify that a Court has full and complete power to follow such procedure in order to do just but in the exercise of such power, it must act justly, fairly and in accordance with law. The above phrase does not imply following arbitrary procedure but must be construed to follow only such procedure which is just and proper for doing justice between the parties and not in violation of any law. Same view was taken by this Bench in the case of Federation of Pakistan v. Muhammad Tariq Pirzada (Civil Petition No,49 of 1999, dated 22-2-1999)..If in a given case there are no reciprocal arrangements in existence within the meanings of section 503(2-B) of the Code, it is doubtful that the Ehtesab Bench was competent to issue commission in a foreign country on the strength of powers vesting in it to follow such procedure "as it may deem fit" under subsection (3) of section 12 of the Act.
22. The impugned order does not specify under what provisions of law the impugned commission was issued. Sections 503 and 508-A of the Code, relates to commission for examination of witnesses. The relevant provisions for this case are contained in sections 503 and 508-A. Section 503(1) provides:-- "503. When attendance of witness may be dispensed with. ---(1) Whenever, in the course of an inquiry, a trial or any other proceedings under this Code, it appears to a District Magistrate, a Court of Session or the High Court that the examination of witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable, such Magistrate or Court may dispense with such attendance and may issue a Commission to any District Magistrate or Magistrate of the First Class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness."
(2).
(2-A) When the witness resides in an area in or in relation to which the President has extra- provincial jurisdiction within the meaning of the Extra-Provincial Jurisdiction Order, 1949 (G.G.O.
No,5 of 1949), the commission may be issued to such Court or officer in the area as may be recognised by the President by notification in the official Gazette as a Court or officer to which or to whom commissions may be issued under this subsection and within the local limits of whose jurisdiction the witnesses resides)."
(2-B) When the witness resides in the United Kingdom or any other country of the Commonwealth or in the Union of Burma (or any other country in which reciprocal arrangement in this behalf exists), the commission may be issued to such Court for Judge having authority in this behalf in that country as may be specified by the Central Government by (notification in the official Gazette)."
(3) The Magistrate or officer to whom the commission is issued, shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of cases under this Code.
(4) Where the commission is issued to such officer as is mentioned in subsection (2-A), he may, in lieu of proceedings in the manner provided in subsection (3), delegate his powers and duties under, the commission to any officer subordinate to him whose powers are not less than those of a Magistrate of the First Class in Pakistan.
' It would, therefore, be seen that where the witnesses reside in any country, in which reciprocal arrangement exists, the commission may be issued to such Court or Judge having authority in this behalf in that country, as may be specified, by the Federal Government by Notification in the Official Gazette.
23. Perusal of section 503(2-B), of the Code, prima facie shows that commission can be issued to a "Court" or "Judge" concerned in the foreign country and not to a person in Pakistan to visit foreign country for the purpose. Refer section 508-A of the Code, which reads thus:-- "508-A. Application of -this Chapter to commissions issued in Burma. The provisions of subsection
(3) of section 503, and so much of sections 505 and 507 as relates to the execution of a commission and its return by the Magistrate or officer to whom the commission is directed shall apply in respect of commissions issued (by any Court or Judge having authority in this behalf in the United Kingdom or in any other country of the Commonwealth or in the Union of Burmah (or any other country in which reciprocal arrangement in this behalf exists under the law in force in that country relating to commission for the examination of witnesses, as they apply to commissions issued under section 503 or section 506)."
24. Under section 508-A of the Code, if a witness is in a country or place outside Pakistan and reciprocal arrangement has been made by the Federal Government with the Government of such country or place, for taking the evidence of the witnesses in relation to criminal matters, the commission may be issued by the Court to such Court, or Judge having authority in this behalf and sent to such Judge or Court for transmission as the Federal Government may, by notification prescribe in this behalf.
25. The following Notification have been published in the Official Gazette under section 503(2-B) of the Code in this behalf.
THE GAZETTE OF PAKISTAN, EXTRAORDINARY, 1960.
Ministry of Law Notification Karachi, the 12th April, 1960 S.R.O.372(K). ---In pursuance of subsection (2-B) of section 503 of the Code of Criminal Procedure, 1898 (V of 1898), and in super session of the late Ministry of Law Land Labour (Law Division)
Notification No,F.51 of 1949-Leg., dated the 9th August, 1950, and the Ministry of Law Notification No,F,58 /50.Leg., dated the 18th December, 1951, the Central Government is pleased to specify the Courts and Judges mentioned in column 2 of the Schedule hereto annexed as Court and Judges having authority in the country specified in the corresponding entry in column No,1 of the said Schedule to whom commissions for the examination of witnesses residing in that country may be issued under the said Code.
THE SCHEDULE Burma Any District Magistrate or Magistrate of the First Class within whose jurisdiction in the Union of Burma the witness resides.
Ceylon Supreme Court of Ceylon.
India Any Presidency Magistrate or a District Magistrate or a Magistrate of the First Class within whose jurisdiction in India the witness resides.
The United Kingdom(a) The Supreme Court of Judicature London (in cases where the witness resides in England); (b) The Supreme Court of Northern Ireland, Belfast (in cases where the witness resides in Northern Ireland); (c) The Court of Session, Edinburgh (in cases where the witness resides in Scotland).
Country Court and Judges THE GAZETTE OF PAKISTAN, PART I, 1963 MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS (Law Division)
Rawalpindi, the 10th January, 1963.
S.R.O.53-K/1963: ---In pursuance of subsection (2-B) of section 503 of the Code of Criminal Procedure, 1898 (V of 1898), the Central Government is pleased to specify the Court and Judges mentioned in column 2 of the schedule hereto annexed, as the Court and Judge having authority in the country specified in the corresponding entry in column 1 of the said schedule, to whom commissions for examination of witnesses residing in that country may be issued under the said Code.
THE SCHEDULE Country Court or Judge New ZealandThe Chief Justice and Judge of the Supreme Court of New Zealand, the Supreme Court House, W ellington.
' Learned Attorney-General has, however, placed on record a list of countries wherein agreement of the Government of Pakistan exists under section 503(2-B) of the Code for issuance of commission, which reads thus:--
(1) Burma
(2) Sri Lanka
(3) India
(4) United Kingdom
(5) Canada
(6) Australia
(7) Federal Republic of Germany
(8) New Zealand
(9) Turkey
(10) Japan.
' It is also specifically stated therein that no such agreement presently exists with the Swiss Government.
26. In Ratilal Bhanji Mithani v. The State of Maharashtra (AIR 1972 SC 1567), their Lordships of the Supreme Court of India, while examining the prerequisite for issue of foreign commission for examination of witnesses under sections 504 to 508-A of the Code of Criminal Procedure (1898), observed as follows:-- ' Before passing an order for examination of witnesses in commission the Court must satisfy itself about the necessity of such evidence and also about the effective enforceability of commission for examination of witnesses. Where it is found after issue of commission for examination of witnesses in a foreign country that reciprocal agreement with that country does not in fact exist, the Court will refuse to extend time."
"The provisions contained in sections 504 and 508-A, of the Code of Criminal Procedure contain complementary provisions for reciprocal arrangements between the Government of our country and the Government of a foreign country for commission from Courts in India to specified Court in the foreign country for examination of witnesses in the foreign country and similarly for commissions from specified Courts in the foreign country for examination of witnesses residing in country. Notifications Nos. S.R.O. 2161, S.R.O. 2162, S.R.O.2163 and S.R.O.2164 all, dated 18th November, 1953 published in the Gazeette of India Part II section 3 on 28th November, 1953 illustrate the reciprocal arrangements between the Government of India and Government of the United Kingdom and the Government of Canada for examination of witnesses in the United Kingdom and Canada and the examination of witnesses residing in India."
"In the present case, no notification under section 508-A of the Code of Criminal Procedure has been published specifying the Courts in the Federal Republic of West Germany by whom commissions for examination of witnesses residing in India may be issued. The notification, dated 9th September, 1969 in the present case under section 504 of the Code of Criminal Procedure is not based upon any existing complete arrangement between the Government of India and the Government of the Federal Republic of West Germany for examination of witnesses residing in West Germany. The notification, dated 9th September, 1969 is ineffective for two reasons. First, there is no reciprocal arrangement between the Government of India and the Government of the Federal Republic of West Germany as contemplated in sections 504 and 508-A of the Code of Criminal Procedure. Secondly, the notification under section 504 is nullified and repelled by the affidavit evidence adduced on behalf of the State that no agreement between the two countries has yet been made."
' In this connection, the following passage from Maxwell on Interpretation of Statute, Tenth Edition page 148, is instructive:-- "Under the same general presumption that the legislature does not intend to exceed its jurisdiction, every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations, or with the established rules of international law. If, therefore, it designs to effectuate any such object, it must express its intention with irresistible clearness to induce a Court to believe that it entertained it, for if another construction is possible, it would be adopted to avoid imputing such an intention to the legislature. All general terms must be narrowed in construction to avoid it. But if the statute is unambiguous, its provisions must be followed, even if they are contrary to international law."
27. Refer Woodroffe, Ev., 10th Edn. P.544, wherein it was observed, "if the commission be executed without any notice or without sufficient notice being given to the opposite party to enable him, if he pleases, to put cross-interrogatories, the deposition will be rejected." Also refer Fitzgerald v.
Fitgerald ( 3S w.& Tr.397) and Tarucknath v. Gouree (1865) 3 W.R.47).
28. The questions, which need consideration are:--
(a) whether the impugned issuance of commission by the learned Ehtesab Bench is covered by any provisions of Mutual Assistance Agreement between Government of Pakistan and the Government of Switzerland and contemplated by "Federal Act on International Mutual Assistance in Criminal Matters;
(b) whether in the absence of any reciprocal arrangement within the purview of section 503(2-B) of the Code, between the above Governments for examination of witnesses, residing in Switzerland, the ' Ehtesab Bench was justified to issue the commission in the exercise of the power vesting in it under subsection (3) of section 12 of the Act whereby it is competent to follow such procedure as "it may deem fit" in the circumstances of the case;
(c) Whether the present petitions have been moved bona fide;
(d) whether it was discretionary with the learned Ehtesab Bench to issue the commission and if so whether the learned Ehtesab Bench has exercised its discretion judicially when no reciprocal arrangement was arrived at between the Governments concerned for the issuance of commission;
(e) whether the impugned order could be saved by resorting to section 561-A of the Code, which confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice, or whether such powers can only be exercised in absence of any other legal provision to meet the situation;
(f) What is the effect of section 5(2) of the Code, which provides that all offences, under any other law, shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences; and section 28 of the Act, which enjoins that the provisions of the Act shall have effect, notwithstanding anything contained in any other law for the time being in force, in the context of the impugned order.
(g) whether the open commission issued by the learned Ehtesab Bench is liable to be withdrawn;
(h) whether evidence received pursuant to the impugned commission is legally admissible in evidence under the Qanun-e-Shahadat Order, 1984;
(i) whether Senator Asif Ali Zardari has locus standi to move a petition before this Court, in the facts and circumstances of the case;
(j) whether the above questions need determination at this stage, notwithstanding the fact that they have arisen out of an interlocutory order, impugned in these petitions and the Reference against the petitioners is pending final adjudication.
29. The questions of law noted hereinabove are of great public importance. We, therefore, grant leave to examine the above question, as well as, the scope, extent and jurisdiction of the Ehtesab Bench under section 12 of the Act.
30. Meanwhile, in order to protect rights and interests of both the parties, and for doing complete justice in the matter, pending before this Court, it appears appropriate that, pursuant to the impugned order, the report of the Commission, including the documents annexed thereto (disputed documents), shall be kept in sealed cover by the Registrar, Lahore High Court/Commissioner, and the same shall not be placed before the learned Ehtesab Bench till the final disposal of the appeals. If the report alongwith its Annexures has already been transmitted to the learned Ehtesab Bench the same shall be withdrawn forthwith and shall be kept in sealed cover as directed above.
31. Needless to observe that the Ehtesab Act, 1997, has been enacted to provide for eradication of corruption, corrupt practices from the public offices and to provide for effective measures for prosecution and speedy disposal of cases involving corruption and corrupt practices and for matters connected therewith and incidental thereto. The office is, therefore, directed to fix these appeals after Eid-ul-Azha, subject to the orders of the Honourable Chief Justice.