' IRSHAD HASAN KHAN, is an application for dispensation of personal attendance of Mohtarma Benazir Bhutto, applicant/petitioner and for staying of proceedings before the learned Ehtesab Bench of High Court of Sindh at Karachi in Ehtesab Reference No,28 of 1997, arising out of order, dated 23-4-1999, passed by it, whereby application of the petitioner for exemption from personal attendance, was declined.
2. Brief, facts are that the Chief Ehtesab Commissioner filed Reference No,28 of 1997, against the petitioner and others before the learned Ehtesab Bench of High Court of Sindh at Karachi on 15-5- 1997, alleging therein that as a result of enquiry and investigation Air Vice Marshal (Retd.) Umer Farooq during his posting as Managing Director, P.I.A.C., Ghulam Qadir Shah Jamot, Director Administration, P.I.A.C., Gulzar Hussain Qazi, General Manager (Man-power Planning) in collusion and in conspiracy with Mrs. Benazir Bhutto, the then Prime Minister of Pakistan, Miss Naheed Khan the then Political Secretary of Prime Minister of Pakistan, Siraj Shams-ud-Din, the then Joint Secretary to Prime Minister's Secretariat and Najum-ul-Hassan, the then Section Officer to Prime Minister's Secretariat by abusing their official position as holders of public office and as public servants illegally employed/recruited 1393 persons in different cadres in P.I.A.C. Illegally and in violation of rules, regulation and procedure, illegally posted different persons abroad and promoted various persons in violation of rules, regulations and procedure of the Corporation. It is alleged that the petitioner was not named in the Ehtesab Reference filed on 15-5-1997, but her name has been included in the Supplementary Ehtesab Reference filed on 26-3-1998. The said Reference is pending before the Ehtesab Bench of High Court of Sindh, Karachi in which the next date of hearing is 18-5-1999. It is pleaded that the Passport of the petitioner was deposited with the Nazir of High Court of Sindh, Karachi and the same was returned to the petitioner in view of order, dated 23-12-1998 passed by the learned Ehtesab Bench on the ground that she has to frequently travel to Dubai to see her children and look after her ailing mother, and her ailing mother has to often undergo check up in London and the petitioner has to accompany her to U.K. The petitioner left the country with the permission of the Court and the passport has been returned to the petitioner by the order of the learned Ehtesab Bench.
3. Mohtarma Benazir Bhutto, applicant/petitioner herein moved an application duly signed by her and her Advocate, dated 25-3-1999. Under sections 353, 205 read with section 561-A, Cr.P.C. For dispensation of her personal attendance on the following grounds:--
(1) That she has to attend number of cases before various Courts as well as before Supreme Court of Pakistan frequently and on different dates where she consult and advise her counsel.
(2) That she is leader of largest Political Party in the country and she has to attend day to day party affairs throughout the country.
(3) That her children are studying abroad and her husband Mr. Asif Ali Zardari is confined in Jail in criminal cases and there is no other male member to look after the children, therefore, she has frequently to go abroad for the said purpose to meet her children.
(4) That she has frequently to visit abroad to lookafter her ailing mother for her proper treatment at various places and took after her sister in U.K. Where she is living alone with small children.
(5) That she has already been granted general exemption by the Hon'ble Ehtesab Benches of Lahore High Court for these reasons.
(6) That Hon'ble Supreme Court of Pakistan had also granted her general exemption when it was request by the accused but she has to repeated the requested there and this approached this Hon'ble Court for the said purpose and this Hon'ble Court has been pleased to grant exemptions for particular dates.
(7) That Hon'ble Supreme Court of Pakistan has also granted general exemption to Miss Naheed Khan the co-accused in the above case.
(8) That applicant/accused will be attending this Hon'ble Court whenever required to do by this Hon'ble Court but in her absence her Panel of Advocates will be attending the Courts as already undertaken by them and authorised by her in writing.
4. When the above application came up for hearing on 23-4-1999 the applicant was absent but her counsel A.-G. Mangi, Advocate sought adjournment of the application seeking exemption but the same was declined by the learned Ehtesab Bench vide impugned order, dated 23-4-1999, which reads thus:-- "23-4-1999. The applicant is called absent.
"While the order was being dictated Mr. A.G. Mangi appeared and requested that this application may be adjourned there is no force in this submission. The application is dismissed."
5. Mr. Farooq H. Naek, learned Advocate Supreme Court for the petitioner contended that the impugned order is discriminatory, inasmuch as, the other accused have been granted exemption from attendance of the Court on Oates of hearings and are being represented through counsel. It is further urged that the petitioner has been granted exemption from attending the Courts in other matters by this Hon'ble Court as well but the learned Ehtesab Bench in an arbitrary manner dismissed the application of the petitioner without disclosing any reason. He further submitted that the petitioner has been travelling abroad with the permission of the Hon'ble Courts, her passport has been returned by the learned Ehtesab Bench and the petitioner has been attending the Courts as per directions of this Hon'ble Court after making adjustments in the dates of hearing in cases pending against her in Sindh and Punjab, therefore, dispensation of her personal attendance should have been granted and failure to do so has resulted into miscarriage of justice. Mr. Farooq H. Naek vehemently argued that in view of the peculiar circumstances of the case the petitioner was entitled to exemption from attending the Court for the smooth working of the Ehtesab Bench, inasmuch as, the petitioner being a leader of a major political party of the country it is obvious that at the time of hearing of the case gathering of the workers is unavoidable and in such a situation crowding in the Court is liable to create hindrance.
6. Ch. Muhammad Farooq, learned Attorney-General submitted that ordinarily the petitioner may be entitled to exemption from attending the Court but during the pendency of the Ehtesab Reference No,28 of 1997, pending before the High Court of Sindh, at Karachi, she has been convicted in Ehtesab Reference No,30 of 1998 and has not come back to Pakistan, therefore, this circumstance disentitles her to claim exemption.
7. Be that as it may, it is an admitted fact that the petitioner has been travelling abroad with the permission of the Court. Her passport has been returned by the learned Ehtesab Bench and the petitioner has been attending the Court as per directions of the Court, after making adjustments in the dates of hearing in cases pending against her in Sindh and Punjab. It is not the case of the learned Attorney-General that before announcement of the final verdict in Ehtesab Reference No,30 of 1998, she was required by the Court to be present at the time of the announcement of the judgment and she failed to do so. Thus visualized, prima facie, this circumstance simpliciter does not disentitle her for consideration of her application on merits. The petitioner has a legal right to demand that her application for dispensation of her personal attendance before the Ehtesab Bench is decided justly, fairly, equitably and in accordance with law. Here, no reason whatsoever has been assigned by the learned Ehtesab Bench while rejecting her application. It is also an admitted fact that part of the examination-in-chief of P.W.1., has already been recorded during the absence of the petitioner at her own instance, though represented by a counsel. When faced with this, the learned Attorney-General frankly submitted that her personal attendance may be dispensed with before learned Ehtesab Bench in view of the undertaking given in her application, dated 25-3-1998 vide paragraph 8 thereof, which states that she will be attending the Court whenever required to do so by the learned Ehtesab Bench but in her absence her Panel of Advocates will be attending the Court as already undertaken by them and authorised by her in writing. The bold and candid concession made by the learned Attorney-General is laudable. This Court has reiterated time and again that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decisions, as it tends to harm the advancement of fairplay and justice. The course suggested by the learned Attorney-General would enable the learned Ehtesab Bench to conclude the proceedings expeditiously, justly, fairly and in accordance with law.
8. In the circumstances of the case and with consent of the learned counsel for the petitioner and the learned Attorney-General, appearing on behalf of the State through the Chief Ehtesab Commissioner, personal attendance of the petitioner in Ehtesab Reference No,28 of 1997, is dispensed with. Mr. Farooq H. Naek shall appear before the Ehtesab Bench on her behalf on every date of hearing or any other counsel nominated by her.
The learned Ehtesab Bench, trying the case, may in its discretion at any stage of the proceedings, direct the personal attendance of the petitioner and take appropriate steps to enforce her attendance, if necessary, in the interest of justice.
' The stay application is disposed of accordingly.
9. In view of the above, Mr. Farooq H. Naek, learned Advocate Supreme Court for the petitioner, does not press the petition for leave to appeal, which is also disposed of as having borne fruit.