IRSHAD HASAN KHAN, J.---Through this common judgment we propose to dispose of Criminal Appeals Nos.53 and 54 of 1999, respectively, having been directed against the common order dated 1-3-1999, passed by the 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 Devaud and also to verify the authenticity of the certified documents.
2. Relevant facts as well as the points in issue for resolving the real controversy arising in these appeals, have been stated in the leave granting order, which reads thus:-- "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 M/s. Societe Generale De Surveillance S.A. (SGA), awarded contract of Pre-Shipment Inspection (PSI) to M/s. SGS in consideration for illegal gratification and undue pecuniary advantages in the form of kickbacks/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, M/s. Societe Generale De Surveillance 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 M/s. SGS 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 accordance with the terms of the contract. Jens Scheldglmilch on behalf of Bomer Finance Inc., agreed and signed the letter which shows that the consultancy fee referred to in the letter was, in fact.
Commissions/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 M/s. SGS in consideration for 6% (six per cent.) commissions/kickbacks of total amount received by M/s. SGS from Government of Pakistan. The commissions/kickbacks was offered/paid to offishore company, namely, Bomer Finance Inc. Owned by Mr. Asif Ali Zardari, his fiduciary agent Jens Scheleglimilch, 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 Schlegehnilch 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 M/s. SGS Inspection S.A. Thus, Jens Scheleglmilch and the accused Directors of M/s. 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 petitioner pd others, 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, 1898 (V of 1898), (hereinafter referred to as the Code) and the defence evidence was to be led by the petitioner."
"7 The matte 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 Court at Rawalpindi to Mr. Farooq H. Naek, Advocate, on telephone, that the impugned order has been passed by the learned Ehtesab Bench and depsite 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 (correct date 18-2-1999), statement of the petitioner under section 342 of the Code was recorded on 22-2-1999 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,30/1998) was adjourned to 1-3-1999 for recording defence evidence."
"9. The impugned order is sought 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 lacunae of the prosecution. Even otherwise, the order passed by the learned Ehtesab 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 an impression that the learned Ehtesab Bench has, by itself, taken the duty of the prosecution as the impugned order has been passed after 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 Inds 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 23-2-1999 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; 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 for the purpose of deciding the main case, which 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 Maharashtra (AIR 1972 SC 1567), to highlight the prerequisites 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 Lail. 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 High Court, Lahore" Volume-I, regarding the commissions 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 our 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 04-00 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 Nos.55 and 56 of 1999 in Criminal Petitions Nos.46 and 47 of 1999 on 8-3-1999, whereupon our learned brother Saiduzzaman Siddiqui, J. 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, along with stay applications, nay 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-existent 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 Civil 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 herself 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, 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 Saiduzzaman Siddiqui, J. In Chambers.
(4) No application of the nature of Criminal Miscellaneous 17/1999 was moved by Mr. Asif Ali Zardari (Petitioner in Crl.P.L.A. No,47/1999) 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 invested with inherent powers to pass orders to secure the ends of justice.
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 Ali Zardari, who had not even filed any Criminal Miscellaneous Application of the nature of Criminal Miscellaneous No,17 of 1999, has no locus stanch 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 moved 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 learned Attorney-General, however, frankly concedes that no reciprocal arrangement exists between 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 Qanun-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 Najam-ul-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 document, a question was put to him that he had fabricated the document to which the witness 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-B), 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 petitioners 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. Iftikahr 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 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 genuine less 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 the 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 Honnourable 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 its 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 fitin the circumstances of the case.
"21 The phrase 'as it may deem fitused in section 12(3) of the Act, clearly signifies that a Court has full and complete power to follow such procedure in order to do justice 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, 49/1999, 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 fitunder 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 r, Code, relate to commissions for examination of witnesses. The relevant II 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 learning 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 has 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 witness 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 or 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, 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 'courtor 'judgeconcerned 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, 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 Notifications have been published in the Official Gazette under section 503(2-13) 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 (2B) of section 503 of the Code of Criminal Procedure, 1898 (V of 1898), and in supersession of the late Ministry of Law and Labour (Law Division)
Notification No,F.51/49-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 Courts 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, Ediburgh (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)/63.--In pursuance of subsection (2-B) of section 503 of the Code of Criminal Procedure, 188 (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, Wellington.
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 Kingodm.
(5) Canada.
(6) Australia.
(7) Federal Republic of Germany. New Zealand.
(9Y Turkey.
(10) Japan.
"It is also specifically stated therein that no such agreement presently exists with the Swiss Government.
"26. In Ratilal Bhanji rilithani v. The State of Maharashtra (AIR 1972 SC 1567), their lordships of the Supreme Court of India, while examining the prerequisites for issue of foreign commission for examination of witnesses under sections 504--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 complimentary provision for reciprocal arrangements between the Government of our country and the Government of a foreign country for commission from Courts in India to specified Courts 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 our country.
Notifications Nos.SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all dated 18th November, 1953 published in the Gazette of India, Part II, section 3 on 28 November, 1953 illustrate the reciprocal arrangements between the Government of India and the 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 9 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 Statutes, Tenth Edition, page 148, is instructive:-- 'Under the same general presumption that the legislature does not intend to exceed its jurisdiction, 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.
Fitzgerald (3SW.& 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 Ehtesab Bench is covered by any provisions of Mutual Assistance Agreement between Government of Pakistan and the Government of Switzerland as contemplated by 'Federal Act on International Mutual Assistance in Criminal Matters;
(b) whether in the . Absence of any reciprocal arrangements within the purview of section 503 (2- B), 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 fitin the circumstances of the case;
(c) whether the present petitions have been moved bona fide;
(d) whether it was discretionary with the 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;
(t) 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 questions, as well as, the scope, extent and jurisdiction of the Ehtesab Bench under section 12 of the Act.
(30) Meanwhile, in order to protect the 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 they 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."
3. The State filed Criminal Review Petitions Nos.5 and 6 of 1999, seeking partial review of the above leave granting order dated 12-3-1999, which were dismissed vide judgment dated 24-3-1999. It would be advantageous to reproduce the relevant portion, which, reads thus:-- "Review is sought on the following grounds:- '(a) While deciding in a connected matter arising out of Ehtesab Reference No,26 of 1998 wherein all these documents had been submitted in the first instance this Honourable Court ruled that the admissibility of the documents would be decided by the learned Bench after giving fresh hearing to the parties and, thereafter, passing a speaking order. An application to this effect has already been filed in Ehtesab Reference No, 26 of 1998 which has been fixed for reply and arguments on the 16th of March, 1999. It may be mentioned that certified copies of these documents obtained from the Lahore High Court forming part of record of Ehtesab Reference No,26 of 1998 were, later on, produced in Ehtesab Reference No,30 of 1998.
(b) While 16-3-1999 has been fixed as the date of hearing in Ehtesab Reference No,26 of 1998 on the issue of admissibility of the documents produced before it, Ehtesab Reference No,30 of 1998 is fixed for hearing on _15-3-1999 for recording the evidence of the defence as well as for arguments on application filed by the two accused under section 265-K Cr.P.C. These two applications, primarily pertain to the issue of admissibility or otherwise of the documents filed before the Honourable Court. It is submitted that pending a decision, the said applications in Ehtesab Reference No,30 of 1998 cannot be heard or adjudicated upon.
(c) The overall effect of the Orders passed by this Honourable Court while granting leave in the case is that not only the report of the Commission has been sealed but the documents which were compared with the original record of Judge Daniel Devaud in Switzerland have also been sealed.
These are the documents which formed the ten exhibits to the rogatory letters sent by Judge Daniel Devaud, along with an additional document sent by the same Judge later on which also formed part of the rogatory, which is an account opening form of Bomer Finance Inc. In Switzerland, beneficiary of which is Mr. Asif Ali Zardari. Other than this certain letters etc. Sent by Judge Daniel Devaud wherein he had explained as to how and from where he had obtained these documents have also been sealed. The commission had taken the original record of these documents, from Ehtesab Reference No,26 of 1998 with permission of the Court to Geneva and compared the same with the record available with Judge Daniel Devaud. He also made his noting on these very documents. With the sealing of the record effectively all these documents are now 'not available with the Court but have been sealed with the Registrar/Commission. In the absence of these documents, their admissibility can neither be argued nor adjudicated upon before the learned Ehtesab Bench. Similarly, as stated above, applications under section-265-K, Cr.P.C. In Ehtesab Reference No, 30 of 1998 cannot be effectively argued and adjudicated upon, especially since the original record of Ehtesab Reference No, 26 of 1998 was summoned and the witness i,e, P.W.14, Mr. Hassan Waseem Afzal was cross-examined with Reference thereto.
(d) The Ehtesab Act, 1997 enjoins that the trial under the said Act should conclude within a period of two months, a period which has long since elapsed. As submitted above, under the orders of this Honourable Court, the appeal is to be fixed after Eid-ul-Azha, which effectively means that any meaningful proceedings in the trial would not be able to take place till such time."
"3. It is prayed that the order dated .12-3-1.999 passed by this Bench may be reviewed in order to facilitate and permit the continuation of the trial. The learned Attorney-General submits that the documents which had already been filed before the Ehtesab Bench and were only sent to Switzerland for comparison and which constitute record of the Ehtesab Bench, be ordered to be returned to the Ehtesab Bench; albeit the admissibility of the report of the Commission and the legal effect of the endorsement made by the commission may be decided after disposal of the appeal.
4. We have heard Ch. Muhammad Farooq, learned Attorney-General for Pakistan and Messrs Syed Iftikhar. Gillani and Farooq H. Naek, learned counsel for the respondents/caveator at some length and considered the case-law cited by them i,e, Mr. Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741), wherein it was held that power of review to be exercised in criminal proceedings is available only on ground of "an error on the face of record"; The Government of Punjab v. The Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council (PLD 1988 SC 382), wherein it was held that reversal of conclusion earlier reached by the Court, after full consideration of the question is not possible in exercise of the review jurisdiction under Article 188 of the Constitution; Haji Muhammad Saifullah Khan v. The Federation of Pakistan (PLD 1990 SC 79), wherein it was held that where a conscious and deliberate decision had been taken with regard to the nature of orders which Court was competent to pass under a provision of law, only because another view with regard thereto was canvassed, could not and did not constitute a ground for review; Ghulam Nabi v. Farrukh Latif (1987 SCMR 608), wherein it was observed that where the impugned order did not suffer from any ambiguity or legal error, petition for review was held to be devoid of merits; and Syed Nazeer Ahmed v. The Federation of Pakistan (1970 SCMR 28), wherein it was held that where the matter had been fully considered in the Judgment of the Court, it could not be allowed to be reargued by way of a review."
"5 The precise submission of the learned counsel for Mohtarma Benazir Bhutto and Senator Asif Ali Zardari, is that the questions raised in the petitions for review are in the nature of re-hearing of the petitions for leave to appeal, which could not be granted on grounds urged by the learned Attorney-General.
"6 The fact of above review petitions depends on the scope and applicability of Order XXVI, Rule 1, the Supreme Court Rules, 1980 (hereinafter referred to as the Rules). Under Rule 1 above, the power of review is to be exercised in a criminal proceedings on the ground of an 'error apparent on the face of the recordand in a civil proceedings on ground similar to those mentioned in Order XLVII, rule 1 of the C.P.C. Under the latter provision, the power of review can also be exercised if there is a mistake or 'error apparent on the fact of the record', apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C.
"7 The question which needs examination is as to what is the scope of the phrase 'a mistake/error on the face of the record'; and what is the scope and nature of the proceedings intended for the discovery and correction of such an error.
"8 The phrase 'error apparent on the face of the recordand the scope and nature of the review proceedings are well-settled. Clearly, the error contemplated under Order XXVI of the Rules, is an error so manifest, so clear, that no Court can permit such an error to remain on record. Such an error is not forthcoming on the record in the instant cases. The State cannot, therefore, be permitted to re-argue the petitions for leave to appeal in the garb of review petition in the absence of any error apparent on the face of the record, which is lacking here. To permit a review on the ground of incorrectness would amount to granting the Apex Court the jurisdiction to hear appeal against its own judgment. Such a course is neither contemplated under the Constitution nor the Rules."
"9 The leave granting order was passed and the interim relief was granted. After hearing both the parties at length. Nothing relevant to the facts of the case had been overlooked, aspect of the case was duly considered and examined before granting leave and passing order for interim relief.
Remedy to seek review in criminal cases is used only in very exceptional cases falling within the purview of Rule 1 (ibid) and in aid of justice. In no case a re-hearing can be allowed upon merits or even on the ground that new matter has been discovered, which, if had been produced at the hearing of the appeal, might materially have affected the passing of the interim order under review. The order under review does not suffer from any manifest defect for enforcing the same.
The learned Attorney-General for Pakistan, skillfully and ably argued the matter at the time of hearing of the petitions for leave to appeal and interim relief. The mere fact that the State still conceives itself to be aggrieved by a part of the leave granting order is not a valid ground to rehear the matter in the garb of review petitions."
"10. It is not necessary to quote a large number of judgments of the superior Courts in support of the above well-settled proposition. Suffice it to say that the power of review cannot be exercised in criminal matters unless there is 'an error apparent on the face of the record", as discussed above.
Reference may be made to some leading judgments in this behalf."
"In Anwar Hussain Talukdar v. Province of East Pakistan (PLD 1961 Dacca 155), the term 'error apparent on the face of recordwas examined by the Division Bench of the Dacca High Court.
Hamoodur Rehman, J. (as he then was), who authored the judgment, observed:-- 'The error of law contemplated is an error so patent, so manifest, that the superior Court will not permit the subordinate Court to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a section of a statute is clearly misconstrued, or if a provision of the law is overlooked, or not applied, and that appears from the judgment of the lower Court itself, then the superior Court may interfere by a writ of certiorari. It is not, however, always easy to determine what are errors of law apparent on the face of the record. What is an error patent on the face of the record cannot be defined with any precision or even exhaustively, and there must always be an element of indefiniteness inherent in its very nature and each case will have to be determined on its own facts."
"In Raja Prithwi Chand Lal Choudhry v. Sukhraj Rai (AIR 1941 FC 1), it was observed:-- 'The Federal Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision The Federal Court will exercise its power of review for the purpose of rectifying mistakes which have crept in by misprision in embodying the judgments or have been introduced through inadvertence in the details of judgments. It can also supply manifest defects in order to enable the decrees to be enforced, or add explanatory matter, or reconcile inconsistencies. The indulgence by way of review is granted mainly owing to the natural desire to prevent irremediable injustice being done by a Court of last resort as where by some accident without any blame, the party has not been heard and an Order has been inadvertently made as if the party had been heard. But in, no case, however, can a rehearing be allowed upon the merits or even on the ground that new matter has been discovered, which, if had been produced at the hearing of the appeal, might materially have affected the judgment of the Court.'
"The case of Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi (PLD 1962 SC 335), is also instructive on the point in issue: "11. As observed above, all the relevant aspects of the matter were fully considered by this Court during the, hearing of the petition for leave to appeal and it was only thereafter that the leave was granted and interim order passed in aid of justice. In the circumstances, there is no justification for reviewing the part of the leave granting Order relating to sealing of the report of the commission.
However, in view of the judgment delivered by the Full Bench of this Court headed by our learned brother Saiduzzaman Siddiqui, J., in Criminal Appeals No,62 and 63 of 1999, arising out of Ehtesab Reference No,30 of 1998, we direct that, in the interest of justice, hearing of the appeals be accelerated by fixing the dates therein for 25th March, 1999 or any other date as may be deemed fit by the Hon'ble Acting Chief Justice."
4. In consequences, the Hon'ble Acting Chief Justice was pleased to constitute this Special Bench to hear the above appeals.
5. We have heard the learned counsel for the parties. The basic question which needs consideration is whether the statement of Judge Daniel Devaud, resident of Switzerland, recorded in that country on an open commission, issued to Mr. Moazzam Hayat, Registrar, Lahore High Court, Lahore, by Ehtesab Bench in Pakistan, who is a resident of Pakistan, can be validly received as evidence in these cases.
6. In the case of Mohtarma Benazir 13hutto v. The State (Criminal Petition No,208/1998), decided by a Full Bench of this Court on 4-3-1999, judgment whereof was authored by one of us Irshad Hasan Khan, J., the question of admissibility of the documents, which are subject-matter of the commission, came up for consideration. The precise grievance of Mohtarma Benazir Bhutto in that case was noted in paragraph 7 thereof, which reads thus:- "(a) That the documents, in question, were not certified copies and, therefore, inadmissible in evidence, as envisaged by Articles 74, 76, 77, 85, 87, 88, 89, and 96 of the Qanun-e-Shahadat Order (10 of 1984);
(b) The document Exh.P1/153 and its translation, P.W.7/154 were not admissible under the above Articles of the order and section 361 of the Criminal Procedure Code, 1898.
(c) Documents P.W.7/155 to Exh. PW-7/319 and their official translation Exh.PW-7/145-A to Exh.P.W.7/319-A, were inadmissible, in that, the service had neither been made by the witness nor in his presence. The documents Exh.PW-7/320 to Exh.PW-7/338, Memorandum and Articles of Association and a certificate and Exh.P.W.-7/320, A-B to Exh.P.W.-7/338, A-B., Exh.P.W.-7/339, Exh.P.W.-7/340 and its type written version, PW-7/340-A, are not admissible under Article 89(5) and Article 96 of the order. The same objection is relatable to Exh.PW-7/343, Exh.PW-7/344, Exh.PW- 7/345, Exh.PW-7/342, in that, they are not public documents within the purview of Article 85 of the order'."
7. This. Court, fo1lowing the dictum in` the caseof Mushtaq Hussain Bokhari v. The State (1991 SCMR 2136), reiterated the view 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 fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. In the case of Mushtaq Hussain Bokhari (supra), it was observed: "It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude".
8. Having regard to the circumstances of the case and to avoid protracted litigation between the parties, the Full Bench of this Court, directed that the Ehtesab Bench seized of the matter, shall re- consider the pleas raised by the learned counsel for the appellant Mohtarma Benazir Bhutto as to admissibility of documents, after providing an adequate opportunity of being heard to the parties and through a speaking order in accordance with law, before a final verdict was recorded in the Reference pending before it.
9. In the case of Mohtarma Benazir Bhutto v. The State (Criminal Appeals Nos.62 and 63 of 1999), in a Full Bench judgment of this Court, headed by our learned Brother Saiduzzaman Siddiqui, J. One of the questions raised by the learned counsel for the appellant was as to the genuineness and authenticity of over 1000 documents that had been produced before the Ehtesab Bench in Ehtesab Reference No,30 of 1998, which were certified copies of the documents obtained from Ehetesab Reference No,26 of 1998, pending before another Ehtesab Bench of Lahore High Court. It was also urged before the teamed Full Bench that the appellants could not be called upon in these, to enter upon their defence as in the absence of determination of the question of admissibility of these documents, the appellants were unaware as to the exact nature of allegations against them. The above objection was overruled, inter alia, with the following observations:-- "The question of admissibility of any piece of evidence produced by the prosecution in the case, therefore, has a bearing to the conviction or acquittal of the accused in the case on the basis of such evidence. If the appellants have objected to the admissibility of any documentary or oral evidence against them in the case, they are free to press the objection before the Court at the stage of arguments which will be disposed of in accordance with the law. They are, however, not entitled under any law to ask for the postponement of their defence in the case until determination of the question of admissibility of either documentary or oral evidence in the case produced by the prosecution."
The Full Bench further observed:-- "On conclusion of the defence evidence as aforesaid, the arguments on the main case as well as on the applications filed under section 265-K, Cr.P.C. May be heard by the Hon'ble Ehtesab Bench simultaneously. However, consideration of objections raised to the admissibility of documents by the appellants at the time of their production in evidence before the Court, be attended to in precedence to other contentions in the case..."
10. Syed Iftikhar Gillani, learned Advocate Supreme Court for Mohtarma Benazir Bhutto reiterated the pleas noted in the leave granting order referred above. He further submits that the application moved by Mohtarma Benazir Bhutto under section 476, Cr.P.C., etc. Is a bald application without any specific charges and, therefore, it should have been thrown away by the Ehtesab Bench instead of issuing commission pursuant to the above application, which was not maintainable. He also seeks permission to withdraw the above application during the course of the proceedings provided the reply to the above application tendered by Hasan Wasim Afzal P.W.14 is also deemed not to be filed with the result that the impugned order automatically disappears. We are afraid, this submission at this belated stage, cannot be allowed.
11. Mr. Farooq H. Naek, learned Advocate Supreme Court for Senator Asif Ali Zardari, in Criminal Appeal No,54 of 1999, also reiterated the pleas already noted in the leave granting order. He further submitted that the short order was passed by the learned Ehtesab Bench in E.R. No,30 of 1998 and not E.R. 26/98, which ws headed by Mr. Justice Ehsanul Haq Chaudhry and Mr. Justice Raja Khurshid Ahmed. It was pointed out that in the latter Reference Mohtarma Benazir Bhutto was the sole accused whereas E.R. 30 of 1998 is being heard by a different Bench comprising Mr. Justice Malik Muhammad Qayyum and Mr.Justice Najam-ul-Hassan Kazmi. Mr. Farooq H. Naek submitted that the impugned order was passed in E.R. 30 of 1998, pursuant to the application under section 476, Cr.P.C. Etc. On behalf of Mohtarma Benazir Bhutto and not by the co-accused Senator Asif Ali Zardari. Mr. Farooq H. Naek submitted that two separate orders were passed on 1-3-1999. The main order did not reflect any mention of application under section 476 or hearing thereof. It showed that the matter was adjourned to 8-3-1999. The precise submission was that after the case was adjourned, the impugned order was passed without hearing the appellants. The short impugned order dated 1-3-1999 was communicated to Mr. Farooq H. Naek, learned Advocate Supreme Court for Senator Asif Ali Zardari, by the learned Ehtesab Bench at 4-00 p.m. On 1-3-1999 at Pearl Continental, Rawalpindi by Sheikh Muhammad Yousaf, Additional Registrar, Rawalpindi Bench, Rawalpindi. Mr. Farooq H. Naek also stated at the bar that. "Sheikh Muhammad Yousaf communicated to him that he has been directed by the Court to communicate this order to me and he read the short order. I requested him to fax me the copy so that I can know the exact words and he declined". He submitted that the short order did not mention the partiesnames or their counsel. He further submitted that the notice was given by the Commissioner, pursuant to the issue of commission only to Mohtarma Benazir Bhutto but no notice was given to Senator Asif Ali Zardari or his counsel. He stated that notice to Mohtarma Benazir Bhutto was received on 3rd March, 1999 at 10-30 a.m. Through fax at Islamabad for 5th March, 1999, 11-30 a.m. To appear before Judge Daniel Devaud in Switzerland. He further submitted that our learned brother Saiduzzaman Siddiqui, J. Stayed execution of the commission on 4th March, 1999, which remained operative till 8th March, 1999. That being so, the original notice stood lapsed. No fresh notice was issued thereafter.
Reference was also made to. The provisions of section 12 of the Act, the provisions of Order XXVI, rule 5, C.P.C. And section 503(2-B), Cr.P.C. In connection with the issuance of commission. He submitted that Chapter 22-A, Cr.P.C. Is a self-contained Code which lays methodology for trial of offences before the High Court. No provision in the Code,, is in conflict with the Act, therefore, the Ehtesab Bench was bound to follow the procedure laid down in the Code. He further submitted that the discretion vested in Ehtesab Bench to follow an alternative procedure arises only by dispensing with the provisions of the Code for reasons to be recorded in writing which has not been done in the instant case. The precise submission was that Senator Asif Ali Zardari was never heard and this has caused grave prejudice to him, in that, the impugned order itself stated that the report of the commission would be used in the main case. He further submitted that even the notice that was issued to Mohtarma Benazir Bhutto was inadequate in time and also lapsed as a result of the stay order issued by this Court, as stated above. Mr. Farooq H. Naek submitted that the provisions of section 503(2-B) of the Code were alone applicable and inherent powers could not be used to divert the ordinary course of criminal proceedings to fill up the lacunae in the prosecution case which had closed their side prior to the passing of the impugned order and the Court by using the inherent power could not be permitted to collect evidence for the parties nor could- it add or acquire powers which were not given in statute, as it amounted to circumvent the intention and purpose of the law-maker.
12. Mr. Iftikhar Gillani, further submitted that it is well-settled proposition of law that if discretion has to be exercised it should be according to the rules, reason and the law. It should not be exercised arbitrarily but on sound judicial principles. Strong reliance was placed on the case. The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (PLD 1958 SC (Pak.) 138), wherein it was observed as under:-- "The appellant firm, the Hanover Fire Insurance Company, the defendant in Money Suit No,3 of 1952 in the Court of the Subordinate Judge, Rangpur. Two of its witnesses were examined on an open commission issued by the subordinate Judge for examination of those witnesses in Calcutta before a resident of Pakistan appointed for the said purpose by the said Judge; but when the plaintiff-respondent Messrs Muralidhar Banechand applied for similar examination of its witness in Calcutta, objection was taken on behalf of the appellant on the ground that the approved method in such cases was the issue of a letter of request to the High Court of Calcutta. Several other objections were also taken, but they are not relevant to this appeal. The Subordinate Judge overruled all the objections and issued an open commission. When the matter came up in revision before the. High Court of Dacca it was urged before Ispahani and Saiduzzaman, JJ. That the Subordinate Judge had acted illegally and with material irregularity in issuing a direct commission instead of a letter of request or a commission through the diplomatic channel and in this connection reliance was placed on civil rules and orders of the Dacca High Court, according to which a letter of request should be issued in such cases and a letter, dated 24th October, 1949 from the Ministry of Law, Karachi which stated that in countries where Pakistan had diplomatic connections, letters of request should be routed through their representatives. The learned Judge held that the instructions of the civil rules and orders could not overrule. Order XXVI, rule 5, C.P.C.
Under which Courts have power to issue a commission or a letter of request and that the letter of the law Ministry referred to above did not say that only a letter of request should be issued to the exclusion of a commission. They dismissed the revision petition on the ground that no question of jurisdiction arose and so they could not interfere."
"The appellant then applied to the High Court for leave to appeal to this Court and this application was dismissed by the Chief Justice and Ismail, J. They took the view that as the correspondence between the Government of East Pakistan and the Government of West Bengal, according to which both governments had agreed that Order XXVI, C.P.C., should govern the procedure, did not prohibit the issue of commissions and rule 5 of Order XXVI give Courts power to issue a commission, there was no substantial question of law to be decided. But about three months prior to this decision another Division Bench of the same High Court (Rehman and Murshed, JJ.) had taken the view that Courts in Pakistan had no power to send their Officers to a foreign country to take evidence except under a reciprocal arrangement between the two countries recognising such a procedure. They found that there was no such reciprocal arrangement between Pakistan and India which could clothe the Officer appointed by our Courts with powers of a Civil Court for recording evidence in India. In that case the Subordinate Judge of Chittagong had issued an open commission and appointed as Pleader of his Court to record evidence in Calcutta. The learned Judges held that the subordinate Judge did not exercise the discretion vested in him judicially and that, therefore, they could interfere under section 115, C.P.C. Although in the case before them there was justification for the witness being examined on commission, the learned Judges set aside the order of the subordinate Judge observing that a letter of request should have been issued."
The appeal was allowed by the Supreme Court. The open commission issued by the subordinate Judge was directed to be withdrawn with the observation that a letter of request should be issued instead. Shahabuddin, J., who authored the judgment, observed:-- "Rule 5 of Order XXVI on which the learned Advocate for the respondent as well as the learned Judges who have upheld the view that an open commission could be issued in the circumstances of this case have relied does not make it obligatory on a Court to issue a commission. It only gives Courts a discretion in the matter. It says that Court may issue a commission or a letter of request and the only judicial way of exercising this discretion is to ascertain the reciprocal arrangements between Pakistan and the foreign country concerned and act in accordance with the arrangement. The directions in the Orders and Rules of practice are based only on this principle. In the judgment under appeal these Rules and Orders are ignored on the ground that such directions cannot override the provisions of the Code; but these directions are given by the learned Judges of the High Court in accordance with the provisions of the law concerned. It is true that such direction cannot override the provisions of law and they should be ignored if they are contrary to the provisions of law, but a High Court should, at least, examine them carefully before declaring them to be of no value when their purpose is to guide the subordinate Courts and they have been framed or adopted by the High Court itself. Had the learned Judges considered the Rules and Orders relevant to the subject under discussion they would have found that they do not override rule 5 but indicate how the discretion given under rule 5 of Order XXVI should be exercised. For instance, Rule 298 of the Rules and Orders of the High Court which deals with taking of evidence in foreign country for Courts in Pakistan is to the effect that on principle the most strictly proper method for the Courts of one country to adopt is the method of letter of request addressed to the proper Court in the foreign country. There is note to this rule which says that letters of request are not to be employed to obtain evidence from USA, as that country prefers the method of commission to be employed and will enforce the attendance of witnesses before the Commissioner. As stated already the Governments of Pakistan and India are agreed that Order XXVI should govern the procedure in such cases and that Order does not speak of an open commission but rule 19 prescribes a letter of request. Consequently rule 298 of the Court's Rules and Orders does not conflict with any of the relevant provisions of law."
"The only reciprocal arrangement between Pakistan and India under which witnesses can be examined in either country without the intervention of the Court of that country that was brought to our notice was the one mentioned in a letter, dated 20th January, 1956, from the Solicitor to the Government of, Pakistan, to the Secretary of the Government of East Bengal. It ig-to the effect that the Governments of Pakistan and India had agreed on reciprocal basis for examination of witnesses in several proceedings pending in Courts in either country where the witnesses are residing, provided that the witnesses are nationals of the country where the proceedings are pending. The letter further says that this arrangement enables the Courts in Pakistan to obtain in several proceedings, evidence of Pakistan nationals residing in India by issuing commission to the Pakistan's diplomatic representatives in India, the same facility being available in the case of Indian nationals residing in Pakistan. But this obviously does not apply to the case under consideration, as here the witness to be examined is an Indian national."
"Mr. Pal appearing for the respondent contended that in any view of the matter it could not be said that the Subordinate Judge had no jurisdiction and, therefore, the High Court could not interfere.
But a Court has to exercise its discretion judicially and as pointed out already judicial exercise of the discretion given under rule 5 is to act in accordance with the reciprocal arrangements arrived at between the Governments concerned. The Subordinate Judge has no jurisdiction to act contrary to those arrangements."
In this connection the following case-law is also instructive to quote: (1) Sri Sri Raja Lakshmi Narayan Jew v. The Province of East Pakistan (1969 SCMR 898); (2) Rana Shamshad Ali Khan v.
Province of Punjab (1993 SCMR 1473); (3) The Leavant Shipping Company (S.A.L.) of Beruit v.
Pakistan through the General Manager, Eastern Bengal Railways, Chittagong (PLD 1960 SC 341); (4)
Sawan Mal v. Raunaq Mal (AIR 1922 Lahore 47).
13. Mr. S.M. Zafar argues that the allegation levelled against the appellants in the Reference falls within the internationally accepted phrase "money laundering". Such activity invariably involves transfer order operations. This malady has hit the international world as a result whereof there is a global new trend of mutual cooperation. He submits that the world is seeing a far greater willingness exhibited by civilian countries to share criminal information a result of this willingness in areas of drugs, money, funny money, the mutual assistance is readily given on the basis of reciprocity. In this behalf, reference was made to the following excerpts from the book titled, "Money Lauderig" A Practical Guide to the New Legislation by Rowan Bosworth-Davies and Graham Sal tmarsh , 1994 Edition: -- "We are beginning to see a far greater degree of willingness exhibited by all civilized Governments to share criminal information and assist and facilitate enquiries undertaken by other countries into the activities of criminals who commit offences within their own boundaries, but whose egregious behaviour affects persons or institutions in foreign jurisdictions. Concerted action against transnational criminality is now a well-established principle in international law and one method of ensuring that those activities are coordinated is by the drafting of legislation which is acceptable to those countries who have agreed to provide mutual assistance to each other to combat specific criminal phenomena, money laundering being one such example.
All parties are obliged to provide the widest degree of investigative cooperation and to facilitate all proceedings aimed at confiscation. Each party is required to assist in the confiscation of specific items of property representing the proceeds of criminality as well as such sums of money which correspond to the value of proceeds. Upon request from any other signatory, each country is bound to provide all investigative assistance and to take provisional measures, such as, the freezing of a bank account or the seizure of property, and upon request, excite a foreign confiscation order or institute its own proceedings leading to confiscation as requested. Bank secrecy may not be invoked as a ground for refusal of cooperation, although all signatories are bound to respect the rights of bona fide third parties and to provide them with legal remedies. As Levi identifies: In short, a substantial amount of legal movement is taking place in Europe and elsewhere in the field of international mutual assistance in relation to money laundering and the freezing and seizing of assets. The moral and political pressure is so great that it is hard for countries to resist agreement. How the formal rules work out in practice is another question (Levi, 1992)."
14. Mr. S.M. Zafar argues that on request from Pakistani Court (Ehtesab Bench), the Swiss Government has rendered assistance with a view to combat specific criminal phenomenon, the money laundering, in the instant case, to which no objection can be taken.
15. Mr. S.M. Zafar next argues that the Ehtesab Bench by passing the impugned order has done nothing illegal or improper. The Ehtesab Bench has merely sought to compare the certified copies already on the file with the original. Such a course, he urges, is not prohibited by law. As a matter of fact, the course adopted by the learned Ehtesab Bench, was most appropriate, in that, they were keen to have the copies compared with the original for arriving at a decision as to whether the above documents were to be relied upon or not and whether they were genuine or fabricated and, therefore, the Ehtesab Bench, was within its power to follow the above procedure. He argues that the course adopted by the Ehtesab Bench, in issuing the commission was not against any principle of. Fairplay. It is urged that the impugned order does not suffer from impropriety or flagrant disregard of any provision of law and has not rendered any injustice to the appellants in the facts and circumstances of the case. In this behalf, reliance was placed on a Single Bench judgment from Indian jurisdiction in the case of Hansrai Harjiwan Dhate v. Emperor (AIR 1940 Nagpur 390), wherein it was observed: "The Criminal Procedure Code is an exhaustive one, only with regard to matters specifically dealt with by it. Absence of any provision on a particular matter does not mean that there is no such power, and the Court may act on the principle that procedure should be understood as permissible till it is shown to be prohibited by law...."
16. Mr. S.M. Zafar next argues that the impugned order was neutral in its character. The result flowing from the order depends, not on the order of the Ehtesab Bench but on what truth comes out. The precise submission was that in principle for safe administration of justice in criminal cases, the Courts do not shut out the truth or search for the truth. Reference was also made to Article 96 of the Qanun-e-Shahadat Order, 1984, to contend that it is permissible for the Court to presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Pakistan, is genuine and accurate if the document purports to be certified in any manner which is certified by any representative of the Federal Government in or for such country to be in the manner commonly in use in that country for the certification of copies of the judicial records.
Mr. S.M. Zafar submits that on the basis of the principle enshrined in the above provision of law, the Ehtesab Bench has the power to compare the copies of documents with the original ones and for that purpose, issuance of commission, would advance the cause of justice.
17. In support of the above proposition, reliance was placed on:
(1) Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317), wherein it was observed thus: "It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Court with powers to make any order which they are pleased to consider to be in the interest of justice. These powers are as much controlled by principles and precedents as are its express statutory powers."
(2) Abdul Ghani v. Haji Saley Muhammad (PLD 1960 (W.P.) Karachi 594), wherein it was observed: "The endorsement of the Ceylon Ministry of External Affairs coupled with the attestation of the representative of the Pakistan Government is sufficient compliance of section 86 of the Evidence Act. The mere fact that the attestation of the Pakistan Government does not specifically contain a statement that 'I certify that the certified copies of the Colombo Court are certified in the manner commonly used in that countrywill not render the attestation as worthless endorsement because in law attestation means that the document in question was executed before the attestator by an authorised person.
The judicial record of a foreign Court if not certified under section 86 of the Evidence Act can be proved by other means also.
The attestation of the certified copies of the Colombo Court by the representative of the Pakistan Government in Ceylon is certainly one of the means by which its genuineness could be proved. The certified copies of the Colombo Court were produced by the opponent before the learned Subordinate Court and was stated on oath to be of the Colombo Court. This statement is sufficient to prove the genuineness of the certified copies of the Court concerned.
'To raise a presumption under section 14, C.P.C. On the production of a copy of a judgment of a foreign Court that it is a judgment of a competent Court is one thing but that will not obviate the necessity of proving that it is, in fact, a judgment of a foreign Court. Section 86 can be invoked to raisea presumption, failing which the judicial proceedings of a foreign Court must be proved by other recognised methods before they are admitted in evidence."
(3) Haranund Roy Chetlangia v. Ram Gopal Chetlangia (1899 Vol. 27 1A 1 (PC), wherein, with reference to the provisions of Indian Evidence Act, sections 65, 66, 74 and 86, uncertified record of proceedings in Court, secondary evidence and public document, it was observed:-- "The record of proceedings in a Court of justice is presumed to be genuine and accurate if it is certified as directed by section 86 of the Indian Evidence Act. But the proceedings may be proved by an official of the Court speaking to what takes place in his presence, and also to an uncertified record thereof. The latter thereby becomes secondary evidence under sections 65 and 66 of the certified record (being a public document under section 74), admissible without notice to the adverse party when the person in possession thereof is out of the jurisdiction."
18. Mr. S. M. Zafar next invited our attention to the preamble of the Act, which reads thus:-- "Whereas it is expedient to provide for eradication of corruption and 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."
Reference was also made to section 12 of the Act, which is in the following terms: "12. Provision of the Code to apply, etc.--(1) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall, mutatis mutandis, apply to the proceedings under this Act."
(2) Subject to subsection (1) the provisions of Chapter XXII-A of the Code shall apply to trial under this Act.
(3)Notwithstanding anything contained in subsection (1) or subsection (2) or any law for the time being in force, 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."
Reference was also made to the following case-law to Support the proposition that under the Act, the Ehtesab Bench has inherent jurisdiction to evolve its own procedure: In The State v. Muhammad Hasham Babar (PLD 1997 Lahore 605), it was observed:-- "10. Section 2 of the Ordinance is a definition clause, Section 3 deals with the corruption and corrupt practices. Subsection (2) of this section states that all offences under this Ordinance shall be non- bailable and no other Court except its Court shall have power to grant bail to the accused.
Subsection (3) states that holder of a public office, who is accused in this Ordinance, shall not be released on bail by the Court if there appear reasonable grounds for believing that he was guilty of such offence. Subsection (4) postulates that if bail is allowed to such an accused the amount shall be fixed having regard to gravity of charge against such persons and where the charge specifies any amount in respect of offence, the amount shall not be less than twice the said amount. Section 4 provides the sentence for offence. Section 5 is of significance. It empowers the Court to sentence the accused to such amount of fine which shall be in no case less than the gain derived by the accused. Section 6 of this Ordinance prescribes that the Court shall have power to freeze the movable/immovable assets of the accused at any time."
"11. A plain reading of the above provisions shows that form of securities enjoined under section 513/514, Cr.P.C. Is not applicable in the new dispensation and Court has inherent jurisdiction to evolve its own procedure for securities. In this new dispensation, it has been clearly stated that the grant of bail in offences committed under this ordinance shall not be a rule but an exception; that the Court shall have a right to grant bail if it finds that there are more reasonable grounds to believe that the accused had committed the offence although tentatively. The object of this legislation is to weed out corruption and see that ill-begotten wealth/money is recovered from such wrongdoers. The Court even has been granted powers to freeze the property of the accused at any time before or during the trial. Taking the above factors into consideration we are inclined to hold that the area of asking security from the accused who is allowed bail is vacant and this Court is not enjoined under the law to mathematically, follow the systems of securities provided in the Code of Criminal Procedure. Bearing in mind the above factors we applied the rule laid down in Shaujaat Hussain v. State (1995 SCMR 1249) and allowed bail to Hakim Ali Zardari in Ehtesab Reference No,17 of 1997 vide Order dated 29-4-1997 subject of furnishing of security in following terms: "Keeping in view the above principle and the rule of accountability embodied in this Ordinance, we are of the opinion that cash security of Rs,100,00,000 (one crore rupees) shall serve the ends of justice. We accordingly, direct applicant to finish above cash security to Additional Registrar of this Benchwithin three weeks of this Order. This shall be inclusive of the amount of Rs,20,00,000 (rupees .Twenty lacs) already deposited by him under our Order dated 8-4-1997, Additional Registrar shall deposit, this amount in the bank where already deposited amount lies. This period was fixed. By Bench with the consent of the learned counsel for the applicant. The applicant shall also surrender his passport forthwith....'."
Similarly, in Hakim Ali Zardari v. The State (PLD 1998 SC 1), it was observed: "The provisions contained in subsections (2) and (3) of section 3 of the Ordinance, 1997 as well as of the Act, 1997 may be harsher than the provisions contained in section 497 of Cr.P.C. For grant of bail. Despite this, there is force in the contention of Mr. Samdani that mention of sections 497, 498 and 561-A of Cr.P.C. In subsection (2) of section 3 of the Ordinance, 1997 as well as of the sections 497, 498 and 561-A of Cr.P.C. And is meant to exclude jurisdiction of the Courts other than the Court defined by section 2 of the two statutes to determine the question of bail. First point, therefore, stands determined accordingly."
19. Mr. S.M. Zafar next argues that the object of section 561-A, Cr.P,C. Is for advancement of justice and not to impede it. The section is indefinable and very wide. In addition, a power is available to the Court under the above section to make any order for rendering substantial and complete justice. In this behalf, the following case-law was quoted: Shahkot Bus Service, Shahkot v. The State (1969 SCMR 325), wherein it was observed:-- "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code..."
Hashim Khan v. The State (1992 MLD 283), wherein it was observed:-- "The use of the word 'orclearly indicates that the inherent jurisdiction can be invoked if the case falls within any of these three parts and it is not necessary that the alternatives are read together.
While examining the scope of section 561-A, Cr.P.C. In the case of Shahkot Bus Service, Shahkot v.
The State and another reported in 1969 SCMR 325, the Supreme Court observed as follows:-- 'It is no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code...'."
20. Mr. S.M. Zafar argues that the objections raised by the appellants are technical in nature, which should not be allowed to come in the way of administration of justice. In support of the above proposition, reliance was placed on the following case-law:
(1) PLD 1999 Karachi 121(D).
(3) PLD 1990 SC (AJ&K) 23.
(4) 1987 SCMR 1371.
(5) 1994 SCMR 70.
(6) AIR 1930 Lahore 465.
(7) PLD 1967 SC 317.
(8) PLD 1987 Azad J&K 127.
(9) AIR 1967 SC 286.
(10) AIR 1954 Bombay 65.
(11) AIR 1940 Nagpur 390.
(12) 1984 PCr.LJ 504.
(13) PLD 1984 SC 95.
(14) PLD 1997 SC 823.
(15) 1993 SCMR 1304.
(16) 1997 PCr.LJ 628.
21. Mr. S.M. Zafar next argues that where threre is no statutory rule of evidence or rule of procedure governing a situation, a Court is not powerless to adopt any just and equitable rule or procedure. In support of the above proposition, reliance was placed on Mian Aziz A. Sheikh v. The Commissioner of Income-tax, Investigation, Lahore (PLD 1989 SC 613), wherein it was observed:-- "In such a situation ordinarily, if there is no statutory rule of evidence governing, a situation, the Court is not prohibited from adopting any just and fair rule of evidence. This can be treated as the ordinary law in absence of any statutory constraints; but there can be exceptions to this principle on account of the special subject of inquiry. In this case the special subject of inquiry is the Muslim Law of matrimony and dower. It is well known that there are special rules of evidence, vis-a-vis, marriage, divorce and other related subjects included in matrimony and the subject of dower is no exception in this behalf in so far as the Muslim Law is concerned, which is in force since before partition."
He also relied upon Zar Wali Shah v. Yousaf Ali Shah (1992 SCMR 1778), to press into service the following excerpts therefrom: "Both the learned counsel mainly concentrated their arguments on the genuineness of the Iqrarnama. Learned counsel for the respondents reiterated all the points which prevailed with the High Court and are mentioned in the impugned judgment. Learned counsel for the appellant on the other hand contended, that enough material particularly documentary being available to the learned lower Courts for comparison with the disputed signatures on the disputed documents, no serious effort was made to reach the truth."
"It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed document/signatures, the Court had ample power to do the needful so as the advance justice rather than injustice. The concept of bar against filling the gaps is no more available in the present Pakistan jurisprudence and the law, including, the precedent law on Islamic principles, which are being made applicable progressively to the proceeding before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A. Sheikh v. The Commissioner of Income-tax (PLD 1989 SC 613).
In the light of the foregoing discussion, there is no alternative but also to allow this appeal and remand the case to the trial Court for fresh decision with the direction that all the legitimate facilities will be granted to both the parties not only to produce evidence but also to make necessary amendments in the pleadings and proceedings without; of course, permitting them to change the main positions in so far as the cause of action is concerned. There shall be order as to costs."
22. Mr. S.M. Zafar next argues that the whole case of the appellants is based in the plea that the impugned order was violative of the principle of natural justice and, therefore, a nullity in the eye of law. He argues that the above plea advanced by the learned counsel for the appellants is not attracted to the facts and circumstances of the present case, in that, presence of the parties was not necessary for the purpose of comparison of the documents by the Commissioner appointed in this behalf by the Ehtesab Bench. In support thereof, reliance is placed on a judgment from American jurisdiction in the case of United States v. Richard M. Nixon (Vol. 418 US 683 (1974), and in particular, the following passages: "10. A justiciable controversy, in which an independent special prosecutor duly appointed by the Attorney-General under the latter's statutory authority has standing to bring an action in the name of the United States, is presented where at issue is the production or non-production of specified evidence deemed by the special prosecutor to be relevant and admissible in a pending criminal case, and the evidence is sought by the special prosecutor within the scope of his express authority, but resisted by the chief executive on the ground of his duty to preserve the confidentiality of the communications of the President, this setting assures that there is that concrete adverseness which sharpens the presentation of issues upon which the United States Supreme Court so largely depends for illumination of difficult constitutional questions, moreover, since the matter is one arising in the regular course of a Federal criminal prosecution, it is within the traditional scope of Article III of the Federal Constitution, which defines the judicial power of the United States; in that light of the uniqueness of the setting in which the conflict arises, the fact that both parties are Officers of the executive branch of the Government cannot be.Viewed as .a barrier to justifiability."
"29. The impediment that an absolute, unqualified Presidential privilege against disclosure of official communications would place in the way of the judicial branch of the Government to do justice in criminal cases would plainly conflict with the functions of the Courts under Article III of the Federal Constitution; to read its Article H, which states the powers of the President, as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions would upset the Constitutional balance of a workable Government and gravely impair the role of the Courts under Article III of the Constitution."
"34. The President's presumptive privilege of confidential communications must be considered in the light of the United States Supreme Court's historic commitment to the rule of law nowhere more profoundly manifest than in the Court's view that the two-fold aim of criminal justice is that guilt shall not escape or innocence suffer, in the American adversely system of criminal justice in which the parties contest all issues before a Court of law, the need to develop all relevant facts is both fundamental and comprehensive; the ends of criminal justice would be defeated if judgments were to be founded in a partial or speculative presentation of the facts; the very integrity of the judicial system and public confidence therein depend on full disclosure of all the facts, within the framework of the rules of evidence; to ensure that justice is done, it is imperative to the function of Courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defence."
23. Mr. S.M. Zafar also quoted passages from the book titled: Introduction to International Law', 10th Edition, 1994 by J.G. Starke, wherein under subheading 'Forms and Terminologyit was observed:-- "(iv) A treaty may be negotiated and signed as between Ministers of the respective countries concerned, generally the respective Ministers of Foreign Affairs.
(v) A treaty may be an inter-departmental agreement, concluded between representatives of particular Government departments, for example, between representatives of the respective Customers Administrations of the countries concerned.
The form in which treaties are concluded does not, in any way, affect their binding character. To take an extreme illustration of this principle it is not even necessary that a treaty be in writing. An oral declaration in the nature of a promise made by the Minister of Foreign Affairs of one country on behalf of his country to the Minister of Foreign Affairs of another and in a matter within his competence and authority may be as binding as a formal written treaty. International law does not as yet require established forms of treaties, and here content and substance are of more importance.
Treaties go under a variety of names, some of which indicate a difference in procedure or a greater or a lesser degree of formality. Thus, besides the term 'treatyitself, the following titles have been given: (1) Contention. (2) Protocol. (3) Agreement. (4) Arrangement. (5) Process-Verbal (6) Statute.
(7) Declaration. (8) Modus Vivendi (9) Exchange of Notes (or of Letters). (10) Final Act. (11) General Act. Each of these titles will be commented on in turn. As to the term 'treatyitself, this is given as a rules to formal agreements relative to peace, alliance, or the cession of territory, or some other fundamental matter."
"(4) Arrangement.
The observations above as to Agreement apply here. It is more usually employed for a transaction of a provisional or temporary nature."
"(9) Exchange of notes (or of letters).
An exchange of notes is an informal method, very frequently adopted in recent years, whereby states subscribe to certain understandings or recognise certain obligations as binding them.
Sometimes the exchange of notes is effected through the diplomatic or military representatives of the states concerned. Ratification is not usually required, but will be necessary if this corresponds to the intention of the parties. There have been also instances of multilateral exchanges of notes."
24. The precise submission of Mr. S.M. Zafar is that the interlocutory order passed by the Ehtesab tiench for issuance of commission to Geneva not suffer from any illegality or impropriety. The scope of appeals against such orders is very narrow. The Code of Criminal Procedure is applicable to the proceedings before the Ehtesab Bench and in appropriate cases for advancement of justice, departure can be made from matters relating to procedure. Section 537, Cr.P.C. Itself provides that any irregularity in procedure will not vitiate a trial unless prejudice is caused to an accused, therefore, the alleged irregularity in procedure claimed by the appellant is not to be judged in isolation and has to be taken into consideration in the context of the allegations levelled against the appellants forming the subject-matter of the Reference.
25. The learned Attorney-General while summarising his argumentscontends that the appellants wrongly pleaded that the documents produced in Reference No, 30 of 1998 were not genuine documents or certified copies of the original. He submitted that three different applications were filed by Mohtarma Benazir Bhutto before the Ehtesab Bench in Reference No,30 of 1998, which were disposed of on February 22, 1999. An application was filed against Federal Minister Mr. Khalid Anwar and Senator Saifur Rehman, wherein it was alleged that they have fabricated/forged the documents. The contents of this application were released to the Press before filing it before the Ehtesab Bench. According to him, the Ehtesab Bench had not sought any reply from Mohtarma Benazir Bhutto nor had it passed any order or issued notices in this regard. However, the Ehtesab Bench did proceed with Mohtarma Benazir Bhutto's application under section 476, Cr.P.C. Etc. He argues that the commission had been issued solely with the purpose of ascertaining the truth but Mohtarma Benazir Bhutto in her application has unjustifiably dragged and maligned the Federal Minister Mr. Khalid Anwar, Senator Saifur Rehman, Ehtesab Bureau's Joint Secretary Hasan Wasim Afzal and Samiullah Khilji. He also reiterated that the interlocutory order passed by the Ehtesab Bench issuing commission is unexceptionable. Concluding his submissions, the learned Attorney- General submits teat it is the settled practice of the Supreme Court that it does not ordinarily interfere with interlocutory orders. This is not a case for interference as no exceptional circumstance has been made out for making departure from the above settled principle.
26. As to the argument advanced by Mr. S.M. Zafar that the issuance of commission was in consonance with the fundamental teachings of Islam to discover the truth, exercising his right of reply, Syed Iftikhar Gillani, learned Advocate Supreme Court for Mohtarma Benazir Bhutto, submitted that the plea raised by Mr. S.M. Zafar, under the garb of Islamic principles to discover the truth or undertake search of truth is not applicable in this case, under no principle enunciated by Islam or in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah, an accused is to be condemned unheard. Mr. Gillani further submits that the impugned order, passed by the learned Ehtesab Bench issuing commission was in excess of its powers, and, in the eye of the law, such an order was void and non-existent having been passed in violation of the principle of natural justice. The submission was that if on the basis of a void order, subsequent orders have been passed by the Ehtesab Bench, the whole series of such orders would fall to the ground, being founded on a void order.
In support of his arguments, he sought support from: (1) National Industrial Cooperative Credit Corporation Ltd. v. Province of Punjab/Government of Punjab (PLD 1992 Lahore 462), wherein a Full Bench of the High Court observed at page 489 of the report as below:- "It is now established and enshrined principle of our jurisprudence that even though, a piece of Legislation does not contain the provision for the compliance of natural justice, the same have to be read into it unless the statute itself by implication or otherwise dispenses with such compliance.
The report of the Commission cannot be considered as a legal or proper substitute for the strict compliance of the principles of natural justice and law and, therefore, the argument that in a way, indirectly, the societies, have, been heard by the Commission is fallacious. In this behalf, the salutary principle contained in Article 4 of the Constitution cannot be lost sight of..."
(2) Ghulam Zamin v. A.B. Khondkar (PLD 1965 Dacca 156), wherein it was observed that any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country.
27. Mr. Farooq H. Naek, learned counsel for Senator Asif Ali Zardari, reiterated his earlier pleas as noted in the leave granting order and also placed reliance on Muhammad Ehsan v. The State (1971 SCMR 227), to contend that Hassan Wasim Afzal was merely a witness in E.R. 30 of 1998 and not a party to the Reference, therefore, no reply could be filed by him to the application under section 476, Cr.P.C. Etc. Filed by Mohtarma Benazir Bhutto nor any commission could be issued in pursuance to that reply. He specifically relied upon the following excerpt from Muhammad Ehsan (supra):-- "Leave to appeal was granted by this Court to consider the question whether the Presiding Officer of a Civil Court could lodge a complaint against a witness under sections 420, 468 and 471 of the Pakistan Penal Cbde in pursuance of the provisions of section 195 of the Criminal Procedure Code.
Among these sections the only section that finds mention in section 195, Cr.P.C. Is section 471 but the offence thereunder is available only against a party to the particular proceeding. In the present case, it is sought to be availed of against a witness to the service of summons. It is, therefore, obvious that section 195, Cr.P.C. Is not applicable to the facts of the case."
28. Before proceeding further with the matter the first point which needs consideration is as to effect of alleged non-hearing of the appellants before passing the impugned order for the issuance of commission. Mr. Naek made a statement at the bar that neither the appellant nor their counsel were heard on the question of issuance of commission. Mr. Ali Sibtain Fazli, the Special Prosecutor has, however, sworn an affidavit in that regard, paragraph 3 whereof reads thus:- "Upon filing of the reply by the deponent as the Special Prosecutor, the written submissions qua appointment of the commission were reiterated orally. Dr. Babar Awan objected to the same and, inter alia, stated that he would like to file a reply to the application, to which the learned Senior Judge of the Honourable Bench remarked that there was no question or filing any reply, as the prosecution had only filed a reply to the application under section 476, Cr.P.C. The objections were taken by not only the counsel for Mohtarma Benazir Bhutto, but by herself personally as well. The Honourable Bench, after hearing Dr. Babar Awan, Mohtarma Benazir Bhutto and the deponent as the Special Prosecutor, before rising observed that they would pass an order in the matter."
29. We find that the two officers of this Court have taken completely contradictory pleas with regard to the hearing of the case. In all fairness, the lawyers should not ordinarily identify and involve themselves in such controversies and become witnesses instead of pleading the cases on behalf of their respective clients and assisting the Court in ascertaining the truth. Be that as it may, we would refrain from believing or disbelieving the honourable members of the profession/officers of the Court on this disputed issue, as already mentioned in the short order of even date.
30. We are of the view that it is wrong, on principle, to interfere with interlocutory orders, passed by the Court except in very exceptional circumstances. Under section 26 of the Act, any person sentenced by the Court (Ehtesab Bench) is competent to prefer an appeal to this Court, within 30 days of the decision or the order. Any interference at intermediary stage of the proceedings, would ordinarily defeat the legislative intent and in the present case where the matter is still pending before the Ehtesab Bench, it is all the more imperaive upon the appellants to await the final verdict by the Ehstesab Bench as R to their guilt or innocence. No prejudice will be caused to the appellants by following the above course, in that, they have been permitted to raise all objections available to them with regard to admissibility of the documents including those noted in the leave granting order, if need be. The rationale behind the Act and the creation of right of appeal before the Supreme Court against any sentence pronounced by the Ehtesab Bench is to be viewed in the context of early disposition of cases. We would, however, add a note of caution that sacrifice of justice to obtain speedy disposition of cases could hardly be termed as justice as observed by one of us (Irshad Hasan Khan, J.) in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) that, "I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice." Surely, when an appeal is preferred by an aggrieved person under section 26 (ibid), this Court shall go into all the facts of the case and the law and pass such order as may be just and proper in the circumstances of the case. It would be at that juncture alone to determine as to whether the final order/sentence was legal or otherwise, both on merits as well as on law. Put differently, such matters cannot be gone into at this premature stage. Ordinarily, interlocutory orders are hit by the principle of prematurity of action. Even if an error or wrong is committed by the Ehtesab Bench during the course of proceedings of a Reference pending before it, it is not the intention of the Legislature that it must be corrected by this Court the moment it is committed. Such a course would not only choke this Court with business but would also have the effect of curtailing the remedy of appeal to an aggrieved person before this Court under section 26 of the Act. Needless to say, when the matter comes, before this Court in appeal against the final order of the Ehtesab Bench by either party, they will be at liberty to raise any plea available under the law including the plea of no evidence, misreading of evidence, misdirection or failure to follow judicial procedure or principles laid down by this Court for safe administration of justice in criminal cases. Such course cannot be resorted to at this stage as it would tantamount to thwarting the process of accountability, which is not warranted under the scheme of the Act. We have no doubt in our minds that the learned Ehtesab Bench shall decide all points raised before it by the parties, leaving no issue undecided in the Ehtesab Reference pending before it, after giving the parties adequate opportunity of being heard and shall, proceed in the matter equitably, justly, fairly, and in accordance with law so as to ensure fair and impartial trial to all concerned.
31 The above are the reasons for our short order of even date, which reads thus:-- "Through this common Order we propose to dispose of Criminal Appeals Nos.53 and 54 of 1999, having been directed against the common Order dated 1-3-1999, passed by the 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 Devaud and also to verify the authenticity of the certified documents.
2. We have heard the learned counsel for the appellants, the learned Attorney-General for. Pakistan and the learned counsel for the State at length.
3. For reasons to follow separately, the conclusion to which we have come will not finally determine the dispute between the parties, raised in these appeals. When the cases come up before this Court, in appeal, after the References are finally disposed of, all the points raised by the parties will be considered at that time. Fragmentary decisions of such character are the most inconvenient and tend to delay the administration of justice as held by their Lordships of Privy Council in Nanhelal v. Umrao Singh (AIR 1931 PC 33); and by this Court in Ibrahim v. Muhammad Hussain (PLD 1975 SC 457); Mushtaq Hussain Bokhari v. The State (1991 SCMR 2136) and Mohtarma Benazir Bhutto v. The State (Cr.P. No, 208/1998), decided by a Full Bench of this Court on 4-3-1999.
4. We do not wish to be drawn into determining the question as to whether the prosecution fabricated/forged the documents as alleged by Mohtarma Benazir Bhutto in her application under section 476, Cr.P.C. Section 195, P.P.C. Read with section 193, P.P.C. And Article 145 of Qanun-e- Shahadat Order, 1984 or as stated by the prosecution that the appellants have been delaying the trial by throwing various obstacles and adopting delaying tactics. Any expression by this Court in this behalf may tend to prejudice the case of either party before the Ehtesab Bench. We are, therefore, anxious to ensure that any opinion expressed in these appeals should not, even remotely, influence the result of the References before the Ehtesab Bench, one way or the other.
5. We would also exercise restraint at this interlocutory stage to express any opinion as to the legality or otherwise of the commission issued by the Ehtesab Bench. Any finding as to the correctness or otherwise of the impugned Order at this interlocutory stage might be counterproductive and would have the effect of curtailing the remedies available to the appellants by way of appeals before this Court, against the final verdict of the Ehtesab Bench, if adverse to them.
6. The basic issue involved in these appeals is whether the appellants were duly heard and afforded adequate opportunity to present their respective points of view, before the commission was issued vide the impugned Order dated 1-3-1999 by the Ehtesab Bench. The parties are at variance on this issue. The learned counsel for the appellants contend that they were not heard, whereas the learned Attorney-General for Pakistan and the learned counsel for the State stress that the appellants were duly heard and the commission was issued after consideration of all the relevant facts and pleadings of the parties with Reference to the application dated 18-2-1999 under section 476, Cr.P.C. Etc.
7. On merits, the controversy raised in these appeals, in substance, revolves around the admissibility of the documents in dispute.
8. Without expressing any opinion on the above controversial issues we are of the view that for doing complete justice between the parties and to avoid protracted litigation, it would be expedient if the Ehtesab Bench, before consideration of and placing reliance upon the report of the Commissioner, shall provide adequate opportunity to the parties to raise any objection against the report including the question of admissibility of the documents in dispute which were sent to Switzerland through the commission for the purpose of verifying the genuineness and authenticity of the said documents, before finally disposing of the References, without prejudice to any observations made in the impugned order or the leave granting order and in the light of the judgments rendered by this Court in Mohtarma Benazir Bhutto v. The State (Criminal Appeals Nos.
62 and 63 of 1999) and Mohtarma Benazir Bhutto v. The State (Criminal Petition No, 208/1998).
9. The Ehtesab Bench shall consider the evidentiary value of all disputed documents, after hearing the parties and independent application of mind, to arrive at a just conclusion, even if at variance with the report of the Commissioner.
10, The Ehtesab Bench shall also examine the Commissioner with regard to his report and provide the parties an opportunity to cross-examine him, if so desired.
11. Needless to observe that the appellants shall be at liberty to raise all pleas noted in the leave granting Order before the learned Ehtesab Bench for the redress of their grievance and in that eventuality, the learned Ehtesab Bench shall attend to the same justly, fairly and in accordance with law.
7. In consequence, we direct that the report of the Commissioner shall be placed before the Ehtesab Bench on the .Date of hearing to be fixed by them within a week of this order. The report shall be desealed in the presence of the parties and/or their learned counsel and shall be made available to them for inspection and filing objections thereto, if any, within a reasonable time to be fixed by the Ehtesab Bench.
13. The appeals stand disposed of accordingly."