' IRSHAD HASAN KHAN, J.---This petition, under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), is directed against the interlocutory order, passed by the learned Ehtesab Bench, Lahore in Ehtesab Reference No,26 of 1998.
2. The petitioner is former Prime Minister of Pakistan. She is presently Leader of the Opposition in the National Assembly. Her husband Mr. Asif Ali Zardari is a Senator from the Province of Sindh. She is being tried under the Ehtesab Act, 1997 (hereinafter referred to as the Act).
3. The precise allegation against the petitioner is that she through her husband as her front man and he, through his front men, had amassed wealth, which, in view of her known sources of income she could not explain. All properties not in her name have been attributed to her allegedly without any lawful basis, in support of the charge.
4. It is pleaded that the investigation against the petitioner initiated by the Ehtesab Cell apparently commenced with a probe into foreign assets attributed to the applicant. Joint Secretary of Ehtesab Bureau, named Hassan Wasim Afzal, was deputed to visit Switzerland and United Kingdom, to discover properties, if any, made in the foreign countries by her and her husband. The said Joint Secretary was also delivered a bag full of papers collected by the Ehtesab Cell through unknown and undisclosed sources. On the basis of those documents, the Attorney-General for Pakistan wrote a letter under what has been described as the mutual legal assistance system to the head of the Swiss Police to hold an inquiry.
5. It is further pleaded that according to the documents filed in the Court, the request of G.O.P. Was examined by Investigating Judge Mr. Michel. He is said to have ruled in its favour on 27-11-1997. The matter was referred to Judge Daniel Davaud, who after some inquiries, in which the petitioner was not associated, issued an International rogatory letter for the purpose of serving an indictment on the petitioner and her husband. That issue has been separately challenged.
6. It is submitted that on 24-11-1998 the said Joint Secretary, Hassan Wasim Afzal appeared before the Ehtesab Bench as P.W.7 He purported to submit a mass of documents in large batches, while making his statement. This process and documents were objected to by the learned defence counsel for the petitioner. However, the learned Ehtesab Bench overruled the objection and proceeded to exhibit a large number of documents, vide impugned order dated 24-11-1998.
7. The precise grievance of the petitioner may be summarized as under:--
(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) (hereinafter referred to as the Order);
(b) the document Exh.P1/153 and its translation, PW-7/154 were not admissible under the above Articles of the Order and section 361 of the Criminal Procedure Code, 1898 (hereinafter referred to as the Code);
(c) Documents PW-7/155 to Exh. PW-7/319 and their official translation Exh. PW-7/I45-A to Exh. PW- 7/319-A, were inadmissible, in that, the service had neither been made by the witness nor in his presence. The documents Exh.P.W.-7/320 to Exh. PW-7/338, Memorandum and Articles of Association and a certificate and Exh. PW-7/320, A-B to Exh. PW-7/338, A.B. Exh.PW-7/339, Exh. PW- 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-71345, Exh.PW-7/342, in that, they are not public documents within the purview of Article 85 of the Order.
8. Mr. Farooq Naik, the learned Advocate Supreme Court for the petitioner has raised the following grounds to challenge the impugned order:-
(a) The first objection to the admissibility of the document was overruled holding that the photostat copies of the documents are already on the reference file sent by the Chief Ehtesab Commissioner, therefore, the objection was not tenable. This reasoning is illegal and against the provisions of the Ehtesab Act, 1997.
(b) The witness produced the translation of the documents Exhs. PW-7/1 to 153. The objection raised was that the translation of the documents tendered in evidence could be made in the Court and in the presence of petitioner and her defence counsel. The Court held that as the documents were a record of Court the objection raised, therefore, was not valid. This is contrary to section 361 of the Code, which makes it mandatory that the translation can only be made in the Court and in the presence of the accused and the defence counsel.
(c) Moreover, the proceedings undertaken by an investigating Magistrate under the Swiss Criminal Code are not "judicial proceedings".
The record of investigation in not a "Court Record" hence it is inadmissible before a Pakistani Court.
(d) Article 47 of the Order provides for the relevance of evidence of a witness recorded earlier in subsequent proceedings only if . The proceedings were between the same parties and the adverse party had the right and opportunity to cross examine them. The admitted position is that the petitioner and her husband were not parties to the proceedings and, therefore, had no right and opportunity to cross-examine the witnesses whose depositions were sought to be exhibited during the trial before the Ehtesab Bench.
(e) The witness (P.W.7) proceeded to state that the so-called indictment order consisted of Exhs.
PW-7/154 to 391 with their translations in English. The defence counsel objected to his statement on the point of service as he was neither the serving agency nor a witness to the service. The Court again ruled that as the certified copies produced were of judicial record, therefore; objection was not valid. This reasoning was again contrary to law.
(f) P.W.7 then produced the record of some nineteen "Off Shore Companies" alongwith their Memorandums and Articles of Association as well as what purports to be an order of High Court of Justice of the Isle of Man and the deposition of two witnesses, namely, Bernard Michel Shimmin and Mr. Nicole Hew Son. These too were admitted and marked as Exhs. PW-7/320 to 340. The defence counsel objected to the exhibiting of these documents that in the proceedings record of which was sought to be exhibited, the petitioner had no opportunity to cross-examine the witnesses. The Court overruled the objection accepting prosecutor's plea that the inadmissibility rule under Articles 89 (5) and 96 of the Order related only to the proceedings of the Courts in Pakistan. This reasoning and interpretation are against the law and the provisions mentioned.
(g) The applicant also objected to the production of the alleged agreement regarding the so- called Rock-Wood Estate (PW-7/343), the alleged details of fixtures and fittings therein (PW-7/344) and to the alleged letter from one Richard Howard (PW-7/345) as not being public documents and so their admissibility in a judicial proceedings is barred by law. By accepting the prosecutor's pleas that documents are covered by definition of public document as given in Article 85 of the Order the objection was overruled. This too was in violation of the law.
(h) The witness then produced as many as 766 pages stating those to be the record of Swiss Court alongwith the translation of French documents included therein, as Exhs. PW-7/347 to 1047. The defence objections were now not noted as the documents purported to be record of a foreign Court and because similar objections had already been ruled out and rejected. The objection regarding manner of translation and their production without showing the relevance was not also noted in view of earlier decisions taken by the Ehtesab Bench on the question of translation. By following its earlier illegal decisions and observations the Ehtesab Bench acted in a manner contrary to law.
(i) All certified copies were obtained after filing of the Reference, then freezing of all kinds of assets and after the framing of the charge. These documents are, therefore, not a part of the Reference as those have been obtained subsequently.
(j) These documents do not qualify to be certified copies under Article 89 (5) of the Order hence are inadmissible under the law.
9. Mr. Farooq Naik further argues that the present petition under Article 185(3) of the Constitution is competent, inasmuch as, since there is a finality in the admission of the mass of documents on the record, and since the learned Bench is going to consider this inadmissible material at the time of passing judgment, this petition for leave to appeal has become inevitable. In support of the proposition that the documents, in question, are inadmissible in evidence, reliance has been placed on the cases of Muhammad Usman v. Lal Muhammad (PLD 1975 Karachi 352), Mehboob Ali v. Mst. Sharifan Bibi (1991 CLC 120,1) and Mehtab Din v: Kasar Singh (AIR 1928 Lahore 640).
10. Ch. Muhammad Farooq, the learned Attorney-General argues that sufficient reasons have been assigned by the learned Ehtesab Bench while admitting the documents in evidence. He further submits that this Court does not ordinarily interfere with interim orders- passed by the High Court except under exceptional circumstances, which are lacking in the instant case and that, in any case, all the points raised in the petition for leave to appeal can be raised in appeal if the Reference is finally decided against the petitioner. He emphasized that the points raised by the petitioner cannot be effectually determined in these proceedings without physical examination of each and every document spreading over 1047 documents. He also took the plea that the interlocutory order passed by the learned Ehtesab Bench shall be merged in the final order of the Court and the petitioner, if aggrieved, may raise these pleas in the appellate jurisdiction of this Court. The precise submission was that the plea raised by the petitioner, even if assumed to be valid, though not 'conceded, are not liable to be determined in these interlocutory proceedings.
11. We have heard the learned counsel for the parties at length. It is not necessary to examine at this stage the pleas raised by the learned counsel for the petitioner that a vast body of inadmissible evidence has been admitted by the learned Ehtesab Bench and is being used to the grave prejudice of the petitioner. Suffice it to say that any expression on the merits of the case in this regard may prejudice the case of either party, in the Reference which is sub judice before the learned Ehtesab Bench and, therefore, the preferable course for the petitioner, normally, would have been to await final verdict of the learned Ehtesab Bench.
12. It is well settled 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. Refer the case of Mushtaq Hussain Bokhari v. The State (NLR 1992 Cr.L.J. 155). Muhammad Afzal Zullah, the then Hob'ble Chief Justice, at page 168 of the report observed as follows:-- "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. This might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal justice. Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even recucing the right of appeals. Cases like the present one do justify such an angry re-action but with a little change of practice in the technical field (for example amendment, vis-a- vis, the subject in section 197, Cr.P.C.) it is hoped there would be no need to curtail the remedies as that too in the stage where we are passing, might be counter-productive."
13. Be that as it may, Article 187(1) of the Constitution empowers the Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. In the present case, Mr. Farooq Naik, learned Advocate Supreme Court for the petitioner argued that the objections raised by the petitioner before the learned Ehtesab Bench regarding admissibility were disposed of in a rolled up and summary manner, without application of proper .Mind and assigning any valid reason in accordance with law. He reiterated that the learned Ehtesab Bench, having allowed the documentary evidence in question to go on record, being admissible. The same had attained finality. It is argued that if a finding is finally recorded by the learned Ehtesab Bench holding her guilty of the charge, not with standing inadmissibility of over 1000 documents, grave prejudice will be caused to the petitoner, which warrants correction at this stage.
14. It is not possible to infer the verdict of the learned Ehtesab Bench. We have, however, no doubt that while disposing of the main Reference the learned Ehtesab Bench shall pass appropriate orders in accordance with law on the basis of properly admitted evidence. The mere fact that the Ehtesab Bench has passed an interlocutory order that the documents, in question, were admissible does not render it powerless to vary the same, if dictates of justice so demand. Reference may be made to ttie case of Robert Comeron Chamarette v. Mrs. Phyllis Ethel Chamarette (AIR 1937 Lahore 176), wherein it was held that where through an interlocutory order, evidence had been admitted to go on record, subsequently, the Court seized of the matter could hold it as inadmissible. Refer the following passage at page 177 of the report:-- "The second objection is that the Court having allowed the evidence to go on the record was not competent subsequently to decide that it was inadmissible. There is no force in this contention.
Assuming that there was an order by the Court holding that the evidence was admissible, it was merely an interlocutory order, and such an order can legally be varied by the Court though in practice it is not often done."
15. Having regard to the exceptional circumstances of the case and to avoid protracted litigation between the parties, we direct that the learned Ehtesab Bench seized of the matter, shall re- consider the pleas raised by the learned counsel for the petitioner in paragraph 8 above, after providing an adequate opportunity of being heard to the parties and through a speaking order in accordance with law, before a final verdict is recorded, in the Reference pending before it.
16. Resultantly, the petition is converted into an appeal and disposed of in the above terms.