' Through order, dated 6-6-1998 a show-cause notice was issued to one Col. (Rtd.) Basit Ali Khan directing him to show-cause as to why he should not be arraigned as an accused in-the present reference. This was done in view of certain observations made by my predecessor i,e, the learned Ehtesab Bench comprising Wajihuddin Ahmed (as he then was) Syed Said Ashhad and Mushtaque Ahmed Memon, JJ., while disposing of the bail application of Ahmed Sadik and others through order, dated 18-6-1997.
2. Col. (Rtd.) Basit Ali Khan through his reply, dated 24-6-1998 has submitted a number of reasons as to why he should not be arraigned as an accused person. According to him his name appears as a prosecution witness, while voluntarily he has supplied material documents to the investigation agency. He has further stated that the prosecution would be deprived of valuable evidence in case he is also charged as an accused person. He has also submitted that at no point of time he was ever suspected of involvement in this case in any manner and the concerned authorities after having evaluated his evidence have cited him as a prosecution witness.
3. On 26-6-1998, Mr. I.A. Hashmi the learned counsel appearing for Col. (Rtd.) Basit Ali Khan, submitted his arguments at length. According to the learned counsel no evidence is available on record to implicate him as an accused. At the same time Mr. Azizullah K. Shaikh, the learned counsel appearing for the accused Ms. Naheed Khan volunteered to assist this Court in the matter.
According to Mr. Shaikh the entire record confirms that Col. (Rtd.) Basit Ali Khan is the main culprit but for mala fide reasons he has not been arraigned as an accused. In this regard Mr. Shaikh has invited my attention to a report alleged to have been submitted by Haji Abdul Qadeeir, Deputy Director, F.I.A., Karachi. The learned D.A.-G./Special Prosecutor did not support the show cause.
4. I have heard the arguments and perused the record. In my opinion, the crux of the matter lies in determining as to whether the Ehtesab Bench has the power and jurisdiction to direct the prosecution or even itself arraign any person as an accused, who is not so joined by the prosecution.
5. In this respect section 15 of the Ehtesab Act, 1997 is relevant. Under section 15(1) the Court shall not take cognizance of an offence under the Ehtesab Act except upon a reference made by the Chief Ehtesab Commissioner. Under section 15(2) a reference under the Ehtesab Act can be initiated by the Chief Ehtesab Commissioner himself on:--
(i) a reference received from the appropriate Government or
(ii) receipt of a complaint; or
(iii) his own accord.
6. The above would amply show that the law makers in their own wisdom have not bestowed any power on this Court to include and introduce persons in the list of accused. Such power only vests with the Chief Ehtesab Commissioner. Section 12(1) of the Ehtesab Act: 1997 provides that the provisions of the Cr.P.C. Shall apply to Ehtesab proceedings, mutatis mutandis. Under section 12(3) of the Ehtesab Act, 1997 this Court has the power to adopt procedure and dispense with the provisions of the Cr.P.C. If deemed fit in the circumstances. The provisions of sections 12(1) and 12(3), in my humble opinion, cannot bell construed or stretched to give this Court the power and authority to conduct its own investigation, or substitute its own opinion with that of the prosecution and investigation authorities by introducing persons in the list of accused, persons who are not so charged by the prosecution after considering the evidence and record. If this Court assume upon itself such power to indict then it shall usurp the functions of the Chief Ehtesab Commissioner, the Ehtesab Commission and the Ehtesab Bureau/Cell. In such an event the Court will then become both the prosecutor and the arbiter. This interpretation would be in clear violation of the principles of separation of powers embedded in our Constitution and judicially recognized in State v. Zia-ur- Rehman PLD 1973 SC 49. Also other provisions of the Ehtesab Act conferring powers on the Chief Ehtesab Commissioner and the Ehtesab Bureau/Cell to investigate and forward the reference to the Court, including sections 15 and 16 in particular, shall be rendered redundant. Once again it is an age-long accepted principle of interpretation of statutes that no part or word of a statute is to be rendered redundant or surplusage. If there is any authority needed for such proposition it is the case of East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663. An ordinary Court proceeding with a criminal trial under the Code of Criminal Procedure, 1898, has the power and authority under section 351 read with section 173, Cr.P.C. To detain a person for a purpose of enquiry into or trial of an offence of which such Court, can take cognizance in which and from the evidence it may appear to have been committed. For reasons expressed above I do not think that it is in the interest of justice and the proper working of functionaries, working and investigating under the Ehtesab Act, 1997 to read section 351, Cr.P.C. Thereinto.
7. The said section 12 of the Ehtesab Act, 1997 in my humble opinion can only be used to arraign persons as accused so as to correct identity, misdescription or non-description of a party/accused. Such power was exercised by this Court in Ehtesab References Nos.2 and 10 of 1997 so as to lay down the correct identity and description of the beneficiaries. In such cases the partners of the partnership firms, the prima facie beneficiaries were arraigned as accused. The test to be used by this Court is an objective test which can be succinctly stated in the terms, that if the matter requires streamlining the description and identity of an obvious accused person, the Court under section 12 can employ its powers to amend and alter the list of the accused i,e, to include such person. The term "obvious accused person" would include persons which are intended by the prosecution to be the accused but due to some inadvertence the same are not indicated (as in Ehtesab References Nos.2 and 10 of 1997, as stated above). A person would fall under the category of "obvious accused person" if his indictment is obvious, but for some slip or fault; a person would not fall under such category if it requires probing, investigating, appraising or re-appraising evidence or docuthents to form an opinion that the person may have committed an offence. Under section 12 of the Ehtesab Act the process of conscious opinion forming upon material and evidence to warrant conclusion that a person might have committed the offence is not permissible. The person would surely not fall under the category of "obvious accused person" if the prosecution after a conscious application of mind chooses not to arraign such person. The prosecution in this case having chosen consciously and willfully not to arraign Col. (Rtd.) Basit Ali Khan, this Court has no power and jurisdiction to arraign and indict him.
8. The show-cause notice is accordingly discharged.
Show-cause notice discharged.