THE STATE vs Mohtarama BENAZIR BHUTTO and anothers

' MALIK MUHAMMAD QAYYUM, J.---The Chief Ehtesab commissioner acting under section 15(1) of the Ehtesab Act, 1997 has sent this Reference against Mohtarama Benazir Bhutto, Ex-Prime Minister of Pakistan, senator Asif Ali Zardari, Mr. A.R. Siddiqui, Ex-Chairman, Central Board of Revenue and Mr. Jens Schlegelmilch, Geneva, praying that the accused persons have committed offences of corruption and corrupt practices within the meaning of section 3 read with-,section 4(2), of the Ehtesab Act, 1997 and they be tried and punished according to law.

2. According to the facts stated in the Reference, Mohtarama Benazir Bhutto, Ex-Prime Minister of Pakistan, Mr. Asif Ali Zardari, Ex-Federal Minister, Mr. A.R. Siddiqui, Ex-Chairman, Central Board of Revenue, as holder of public offices, in collusion with each other and in collaboration with M/s. Societe Geneale De Surveillance S.A. (S.G.S.) awarded contract of reshipment inspection (P.S.I.) to M/s.. S.G.S. In consideration for illegal gratification and undue pecuniary advantage in the form of kickback/commission and bestowed upon that company other favours/concessions resulting in collosal cross to the public exchequer. It is alleged that on 11-3-1995 M/s. S.G.S., a firm earning in pre-shipment inspection of imports/exports, gave a written undertaking to Mr. Jens Schlegelmilch, sole Director/President of Bomer Inc. Duly owned by Mr. Asif Ali Zardari, stating therein, inter alia, that consideration for his active support and assistance in connection with the promotion and negotiation by M/s. S.G.S. Of an import verification programme with the Government of Pakistan, they shall pay him a consultancy "fee responding to 6% of the total amount paid to and received by them from the Government of Pakistan in accordance with the terms of the contract. Jens Schlegelmilch on behalf of Bomer Finance agreed and signed the letter which shows that the consultancy fee referred to in the letter was in fact commission/kickback in return for getting the reshipment inspection contract from Government of Pakistan.

3. In September, 1994 in order to make ground for reintroduction of pre-shipment inspection scheme Mr. A.R. Siddiqui, the then Chairman, Central Board of Revenue, arranged a brief presentation highlighting the need, importance and merits of reintroduction of Pre-shipment Inspection Scheme in Pakistan. The presentation was chaired by Ms. Benazir Bhutto, Ex-Prime Minister of Pakistan and attended by high ranking officials. Mr. A.R. Siddiqui emphasised the need for introduction of P.S.I. Scheme in Pakistan concealing the fact that it has already failed in Pakistan to achieve the desired results. The presentation was also silent about the fact that M/s. Cotecna Inspection/S.G.S. Tried to get the contract in 1992 and 1993 but could not succeed due to poor performance under the contract of 1990 awarded to M/s. Cotecna Inspection S.A. Immediately, after the presentation, a draft agreement was sent to the Law Division, Government of Pakistan, for vetting. The Law Division raised various objections. But ignoring the observations of the Law Division and recommendations by the Customs, Mr. A.R. Siddiqui signed the P.S.I. Contract with M/s. S.G.S. Without observing the codal formalities. The other favours which are said to have been bestowed upon M/s. S.G.S. Were as under:--

(i) The State of CRF (Clean Report of Findings) was changed from "Advisory" to "Binding" forbidding the Customs' administration to safeguard the Government's legitimate revenue vide decision of the Econothic Coordination Committee of the Cabinet No,ECC.-42/3/96, dated 3-3-1996.

(ii) Under the agreement the scope of functions of the Company was extended to cover all dutiable imports as well as duty free imports and imports under concessionary regime.

(iii) The service fee was agreed as 0.78% of dutiable value with minimum charge of US $ 250, which means that fee was to be calculated on freight, insurance and landing charges as well for which the Company did not provide any services.

(iv) Though the previous contract was for a period of 2 years yet the tenure of the contract was increased to five years renewable with another period of five years.

(v) The Green Channel was introduced by virtue of which the acceptance of advice of M/s. S.G.S. Was mandatory on Customs Authorities and they were not allowed to intervene in cases of patently wrong valuation and assessment. This led to the misdeclaration of goods imported in containers sealed by the said company.

4. It is further alleged that unprecedented concern was shown by Mr. Asif Ali Zardari regarding the affairs of P.S.I. Companies. He intervened in the matter to secure maximum facilities for them. He also, without any legal authority used to chair meetings to resolve the issues of P.S.I. Companies.

5. According to the Reference the pre-shipment inspection contract was awarded to M/s. S.G.S. In consideration for commissions/kickbacks at the rate of 6% of total amount received by M/s. S.G.S. From Government of Pakistan. The commission/kickback was offered/paid to off-shore company namely Bomer Finance Inc. Owned by Mr. Asif Ali Zardari through his fiduciary agent Mr. Jens Schlegelmilch, sole Director/President of the said company. The ultimate beneficiaries of the commissions/kickbacks were Mr. Asif Ali Zardari and Ms. Benazir Bhutto.

6. It is claimed that the reshipment inspection contract was awarded to M/s. S.G.S. In return for commissions/kickbacks at the rate of 6% of total amount received by M/s.. S.G.S. From the Government of Pakistan on account of pre-shipment inspection. This fact, inter alia, finds support from the following:--

(i) Bomer Finance Inc. Owned by Mr. Asif Ali Zardari opened a dollar Account No,552 and 343 in the Union Bank of Switzerland at Geneva. This account was to be operated by Mr. Jens Schlegelmilch, the sole President/Director of Bomer Finance Inc. And fiduciary agent of Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto.

(ii) The entire account was meant for depositing the money received by Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto from different sources at the ratio of 50% each. This fact is amply proved by the handwritten ledger account, being maintained by Mr. Jens Schlegelmilch. One of the entries dated 24-5-1995 reveals that an amount of US $ 93872.82 were deposited as commission from S.G.S.

7. Mr. Jens Schlegelmilch worked as fiduciary agent of Mr. Asif An Zardari and Mohtarama Benazir Bhutto in establishing a network for receiving/collecting the kickbacks and commissions in this case offered by M/s. S.G.S. Inspection S.A. Thus, Mr. Jens Schlegelmilch and the accused Directors of M/s. S.G.S. Besides being beneficiaries. Facilitated and aided the commission of the offence of corruption and corrupt practices.

8. Later on 20-8-1998 a supplementary challan was submitted by the Chief Ehtesab Commissioner along with certain documents in which it was alleged that on the request of the Government of Pakistan for mutual assistance in criminal matters it was ordered by the Judge Michel, Canton of Geneva, vide order dated November 27, 1997 that "the whole of the documents in possession of the companies S.G.S.-Societie Generale De Surveillance and Cotecna Inspection S.A., relating to the contracts entered into with the Government of Pakistan and which concern the years 1990 to 1995 included, and in particular the fundamental contracts, the letters of intentions, the brokerage contracts and other contracts, the correspondence, telephone memos., etc. As well as the banking or accounting documents in their possession regarding the following persons/companies, Jens Schlegelmilch, Bomer Finance, Mariston Securities, Nassam Overseas, be transmitted.

9. In pursuance of the above order of Judge Daniel Davaud, Canton of Geneva, exercising his powers also ruled on 24-6-1998 that:-- "In the present case, having been the elements of the proceedings such as they appear from the Pakistani letter, Rogatory and the investigations led by the undersigned Judge, and taking into considerations Article 28 CP and 25 CPPd, as well as the abovementioned jurisprudential principles related to it, the State of Pakistan definitely appears, 'prima facie' as having been damaged by the acts of Asif Ali Zardari and Mrs. Benazir Bhutto, as well by .Those of Messrs Hens Fisher, Robert Massey and Jens Schlegelmilch. The offences these people are charged with inherently caused a considerable financial damage to the State of Pakistan and the proceeds of said offence has ended up on the accounts of which the members of the Bhutto family are beneficial owners."

10. The Judicial Powers Office of the Examining Magistrate in Switzerland subsequently after having inculpated Mr. Asif Ali Zardari issued an International Rogatory Letter which was handed over to Ehtesab Bureau, Government of Pakistan by the Swiss Embassy in Pakistan through the Ministry of Foreign Affairs. The Rogatory Letters stated that:- "Among the charges considered against Mr. Asif Ali Zardari based on the current file, are using of off-shore companies (Bomer and Nassam) in order to receive commissions in the frame of entering into a Government contract with the company S.G.S./Cotecna, being made clear that, on the one hand that using screen companies to hide the product of crime is considered as an act hindering the justice in its search of links between the property and crime and, on the other hand, that the author of the said crime may be his own launderer according to the Swiss Law."

11. The documents received from Swiss Authorities also revealed that subsequent to issuance of letter of June 29, 1994 by Cotecna, whereby they had promised to pay six per cent. Of invoiced amount paid to them by the Government of Pakistan to Mariston Securities Inc., was replaced on 24-5-1995 with Bomer Finance Inc., thereby meaning that said six per cent. Would not be paid to Mariston Securities Inc., but to Bomer Finance Inc.

12. The investigation also revealed that Jens Schlegelmilch visited Pakistan and stayed as guest of the then Prime Minister, Mrs. Benazir Bhutto on various occasions. This fact establishes the close relationship of Jens Schlegelmilch with the then Prime Minister, Ms. Benazir Bhutto and Mr. Asif Ali Zardari.

13. On receipt of Reference accused was summoned. It was, however, found that accused Nos.3 to 6 were not available and could not be served, the trial against them was, therefore, ordered to be separated vide order, dated 28-9-1998. Mohtarma Benazir Bhutto and Mr. Asif Ali Zardari were thereupon on 15-10-1998 charged as under:-- CHARGE ON MR. ASIF ALI ZARDARI "Your are a holder of public office as defined in sub-para. (ii) of section 2 of the Act alongwith your spouse Ms. Benazir Bhutto in exercise of your official functions and by abuse of your position as a holder of public office, with the abetment, assistance and aid of others dishonestly and through corrupt and illegal means secured the award of pre-shipment inspection contract, dated 29-9- 1994 for M/s. Societe Generale De Surveillance S.A. (S.G.S.) in consideration of illegal gratification, pecuniary advantages, commission and kickbacks, earlier agreed upon which were paid by S.G.S. And were obtained and received in bank accounts of off-shore companies operated by Jens Schlegelmilch namely Bomer Finance Inc. Mariston Securities Inc. And Nassam Overseas Inc. Of which you and your spouse and others are beneficiaries.

' Your above acts constitute the offence of corruption and corrupt practices under sections 3(1)(a), 3(1)(d) and 4(2) of the Act which is triable by us, we hereby direct that you be tried on the said charge."

CHARGE ON MS. BENAZIR BHUTTO.

"You as Prime Minister of Pakistan from 16-11-1993 to 5-11-1996 along with your spouse Asif Ali Zardari in exercise of your official functions and by abuse of your position as a holder of public office as defined in sub-para. (ii) of section 2 of the Act with the abetment, assistance and aid of others co-accused dishonestly and through corrupt and illegal means ordered the grant of pre- shipment inspection contract, dated 29-9-1994 to M/s. Societe General De Surveillance S.A. (S.G.S.) in consideration of illegal gratification, pecuniary advantages, commission and kickbacks, earlier agreed upon which were paid by S.G.S. And obtained and received in Bank accounts of off-shore companies operated by Jens Schlegelmilch namely Bomer Finance Inc., ' Mariston Securities Inc. And Nassam Overseas Inc. Of which you and your spouse and others are beneficiaries. Your above acts constitute the offence of corruption and corrupt practices under sections 3(1)(a), 3(1)(d) and 4(2) of the Act which is triable by this Court, we hereby direct that you be tried on the said charges."

14. In order to prove its case, the prosecution examined Saqlain Shah, Inspector Security, Prime Minister House, Islamabad as P.W.1 who produced the visitors' book of the Prime Minister House from 8-5-1995 to 13-6-1995. The statement of Syed Waseem Ahmed Pirzada, Room Reservation Manager, Marriott Hotel, Islamabad was recorded as P.W.2 He stated that, Jens Schlegelmilch had stayed in Marriott Hotel in Room No,152 from 1st of August to 3rd August, 1994 and again from 6th August to 11th August, 1994 and for the third time from 30th September, 1994 to 3rd October, 1994.

The two registers were produced by him as Exhs.P.B. And P.C. Mr. Khalid Masood Ahmad, Deputy Secretary Administration, Prime Minister Office, Islamabad appeared as P.W.3 and stated that according to the record, a bill amounting to Rs,6,968 for the stay of Mr. Jens Schlegelmilch at Marriott Hotel, Islamabad was paid by the Prime Minister Secretariat out of its own budget. Mrs. Neelam S. Ali, Deputy Secretary, Ministry of Commerce, appeared as P.W.4 and produced the Office Memorandum as Exh.P.E., Exh.P.F., Exh.P.G. And Exh.P.H.

15. Mr. Ahmed Sadiq, who was the Principal Secretary to the Prime Minister in the year 1995, appeared as P.W.S. He stated that in 1994 there was a presentation regarding P.S.I. Companies made towards the end of August, 1994 which was given by the Chairman, Central Board of Revenue, who was assisted by the Chief Collector of Customs. He further deposed that the post of Chief Collector was newly created and Mr. Khalil Ahmad was the first incumbent. The presentation was attended by the Minister of State for Finance, Advisor Finance, Finance Secretary, the Chairman, Central Board of Revenue, Mr. A.R. Siddiqui, Deputy Chairman of the Planning Commission, Qazi Aleem-ud-Din, Mr. Waqar Masood Khan, Additional Secretary. The meeting was chaired by the Prime Minister of Pakistan. According to the witness, it was a short meeting which took place 20 to 30 minutes. From the way the presentation was made by the Chairman, Central Board of Revenue, who was assisted by Mr. Khalil Ahmad. It appeared that the decision to grant contract had already been made and the details relating thereto were to be spelt out in the presentation. There was no serious dissent but it appeared that Mr. V.A. Jafri and Mr. Javed Talaat were not happy. The witness further went on to say that Mr. A.R. Siddiqui and Mr. Khalil Ahmad had been specifically appointed to the posts which they held after retirement on account of re- employment. P.W.6 Mr.S.M. Abdullah brought the summoned record. Mr. Sohail Rehan, P.W.7, Deputy Secretary, Ministry of Finance, proved the minutes of meeting, Exh.P.W.7/A, Exh.7/B and also signatures of Dr. Waqar Masood Khan as Exh.P.W.7/C. P.W.8, Mr. Khalid Mahmood, Additional Collector Customs, appeared and stated that he was working as Secretary Evaluation in the Central Board of Revenue and that as per record, the total payment made to Cotecna and S.G.S. Companies were US $ 137.492 million, in addition to which 13 million US $ were still being claimed by two Companies.

16. P.W.9, Mr. Mumtaz Ali, Member National Tariffs Commission, Islamabad appeared and stated that on 31-7-1994 he was posted as Member Customs in the Central Board of Revenue which at that time was headed by Mr.A.R. Siddiqui as its Chairman. Mr. A.R. Siddiqui was a retired person. He stated that few days after his appointment as Member Customs, he was called by Mr. A.R. Siddiqui and was informed that Executives of S.G.S. And M/s.., Cotecna would be in Islamabad and that he should hold meeting with them. Mr. Siddiqui asked him to find out as to when the representatives of the two companies would be arriving. This information he was required to get from Mr.Khalil Ahmad, Chief Collector of Customs, Karachi. The post of Chief Collector Customs was created for the first time those days and did not exist prior thereto. The witnesses found out that the representatives of S.G.S. And Cotecna would come within a day or two with a view to revive the bid already made. The witnesses stated that he went to the Chairman and informed him that Pre- shipment Inspection Scheme had been tested and discarded because it did not result in revenue improvement and after that another attempt was also made to revive the Scheme which too failed. The Scheme was discarded for the first time in 1991 but he was informed by Mr. A.R. Siddiqui that the decision to award contract to P.S.I. Companies had already been taken. The witness stated that he was asked by the Chairman to discuss with the Companies certain rates of fee which they were demanding also settle terms relating to duration of contract. The witness deposed that he attended the presentation made to the Prime Minister of Pakistan which was prepared by Mr. A.R.

Siddiqui, the then Chairman, Central Board of Revenue, who was assisted by Mr. Khalil Ahmad. No much discussion took place on any of the item. The presentation lasted for about half an hour. At the end, the Prime Minister asked Mr. Siddiqui to implement the Scheme as soon as possible. The presentation has been made on the basis of draft agreement between the Government of Pakistan and P.S.I. Companies. After the presentation, the agreement was formalised. He signed the agreement as a witness which is Exh.P.W.9/A and Exh.P.W.9/A/a.

17. P.W.10, Mr. Ramzan Bhatti was a Secretary in the Central Board of Revenue in 1994. He was involved in the discussion on the terms and conditions of the contract between the representatives of the P.S.I. Companies and others. Mr. Khalil Ahmad wrote a letter to the Central Board of Revenue pointing out reservations which the Team constituted on behalf of the Government had on the contract. The P.S.I. Companies did not cooperate and their attitude was rude. The witnesses deposed that his Collect orate was declared as focal point for supervising the P.S.I. Companies and each month report was sent to the Central Board of Revenue indicating short-comings in the performance of P.S.I. Companies. No action was taken by the Central Board of Revenue on the reports. Later on, he was appointed as Chairman Steering Company and he issued show-cause notice as to why penal action should not be taken against the Companies. The P.S.I. Companies made a lot of hue and cry and managed to have him removed from the post.

18. P.W.11, Mr. Riaz Hussain Naqvi, was a Member Customs in the Central Board of Revenue in 1994.

He stated that he attended meeting in May, 1995 in the Prime Minister House, Islamabad which was chaired by Mr. Asif Ali Zardari. The representatives of P.S.I. Companies were present who made their presentation. In the end of the meeting he was asked by Mr. Asif Ali Zardari whether he had any problem with P.S.I. Companies. The witness replied that he had lot of problems. Mr. Javed Talaat intervened to say that formal report from P.S.I. Companies will be due in few weeks' time and Central Board of Revenue will make formal presentation on receipt of that report.

19. Mr. Muhammad Jamil Awaisi, Secretary, Central Board of Revenue, Islamabad appeared as P.

W.12. He was appointed as Investigation Officer in this case on 1-12-1997. He prepared his report which was signed by him and was produced as Exh.P.W.12/A. As a result of the investigation he came to the conclusion that contract in question was not awarded in a transparent manner and from some foreign documents made available to him it was clear that some kickbacks had passed hands.

20. P.W.13. Iftikhar Qutab, Additional Collector of Sales Tax, appeared and stated that in 1994 he was posted as Deputy Collector with Chief Collector Customs, Karachi. A team was constituted by Central Board of Revenue to examine P.S.I. Companies with Chief Collector as its Head. The witness was also associated with it. He explained that Cotecna had been engaged by the Government in 1990 and remained as P.S.I. Company. The Pre-shipment Inspection Scheme was for the first time introduced in the budget for the year 1990-91. When the contract was awarded for the first time, P.P.P. Government was in power. The suggestion of P.S.I. Companies was to charge fee on dutiable value basis while the Customs was insisting that the Companies should charge on F.O.B. Basis and all exempt goods should be excluded from P.S.I. Coverage.

21. The statement of Mr. Hassan Wasim Afzal was recorded as P.W.14. He stated that he was Joint Secretary in the Ehtesab Bureau and was Member of the Ehtesab Cell, Islamabad. He was appointed in Ehtesab Bureau on 9-4-1997. During his course of duties various matters relating to corruption and corrupt practices came to him hlicluding matters relating to Mohtarama Benazir Bhutto and Mr. Asif Ali Zardari and quite of Bureaucrats and tax-evaders. Reference was sent by the Chief Ehtesab Commissioner to the Ehtesab Bureau and it was on account of that Reference that he was involved in cases against Mohtarama Benazir Bhutto and Mr. Asif Ali Zardari. He was asked to co-ordinate and assist the prosecution in the preparation of these cases particularly the overseas aspects. In September, 1997, the Attorney-General for Pakistan made a request under International Mutual Legal Assistance to Mr. Beat Frey, the Chief of Swiss Police, seeking assistance relating to corruption and corrupt practices and he had obtained certified copies of the documents from Swiss Authorities, the original of which had been produced before the Ehtesab Bench comprising of Mr. Justice Ihsanul Haq Chaudhry and Mr. Justice Raja Muhammad Khrushid in E.R. 26 of 1998. The Attorney-General for Pakistan presented another application along with docurnents to the Chief of Swiss Police to investigate the matter and thereafter he obtained certified copies from his office which are available. The witness stated that he appeared before the Ehtesab Bench comprising of Mr. Justice Ihsanul Haq Chaudhry and Mr. Justice Raja Muhammad Khurshid and submitted the documents to the Bench, The Copies obtained from the Lahore High Court were produced as Exh.P.W.14/1 to Exh.P.W.14/152. He stated that he went to Geneva as Coordinator of affairs of Ehtesab Bureau and met my lawyers in Geneva. The Swiss Court ordered raids on the offices of Mr. Jens Schlegelmilch and Didier Plantim, After this the Judge ordered the search of offices of S.G.S. And Cotecna and he summoned various Bank Managers and recorded their statements and took the record into possession. After carrying on these proceedings, the Judge permanently blocked the account. 'He thereafter, froze the account and also pronounced indictment orders of the President of S.G,S., Mr. Hens Fisher, President of Cotecna, Mr. Jens Schlegelmilch, Mr. Asif Ali Zardari and Ms. Benazir Bhutto. These documents are Exh.P.W.14/l53 and Exh.P.W.14/154. The rogatory letter was received through diplomatic official channel. Certified copies of these documents are Exh.P.W.14/155 to Exh.P.W.14/319. The witness deposed that he learnt that 19 off-shoie companies have been established by the respondents-accused. He obtained original documents which were submitted in the Court of Mr. Justice Ihsanul Haq Chaudhry and Mr. Justice Raja Muhammad Khurshid. Certified copies of these documents were produced as P.W.14/320 to Exh.P.W.14/338.

22. Mr. Muhammad Tariq Pervez, an officer of the Ehtesab Bureau appeared as P.W.15. He deposed that he was asked by the Chairman, Ehtesab Bureau to prepare Supplementary Reference in the second week of August, 1998 for which he was appointed as Investigation Officer. He stated that after receiving the documents from Mr. Hassan Wasim Afzal, he scrutinised the case and found that illegal gratification in the form of commission and kickbacks was taken by Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto. The last witness produced by the prosecution was P.W.16, Mr. Muhammad Gulshan Khan, who was Inspector, F.I.A. He had been appointed to assist the Investigating Officer, Hafiz Muhammad Jamil Awaisi. He had recorded the statement of 17 witnesses under the instructions of Investigating Officer to assist him.

23. After the closure of evidence of the prosecution, the statements of accused under section 342, Cr.P.C. Were recorded in which all the allegations were vehemently denied and it was stated that the case was mala fide and has been prepared at the instance of Mian Muhammad Nawaz Sharif and Senator Saif-ur-Rehman. The accused had indicated that they would be leading defence evidence. However, despite 3 opportunities given to them they failed to produce any defence with the result that the same was closed vide order of this Court dated 15-3-1999. The order passed by this Court on 15-3-1999 closing the evidence of the respondents was challenged by them before the Supreme Court of Pakistan which was pleased to dispose of those appeals on 18-3-1999 with the direction that statement of Mohtarama Benazir Bhutto under section 340(2), Cr.P.C. Shall be recorded on 22-3-1999 when she shall appear before the Ehtesab Bench; that this Court shall examine two lists, one of 39 and the other of 3 witnesses, given separately by accused Nos.1 and 2 in view of provisions of section 265(F) and clause (7) thereof and if the witnesses are allowed to be summoned, in that case reasonable time shall be given to the accused. It was noted by the Hon'ble Supreme Court that some of the witnesses belong to foreign countries. The Court declined to place the responsibility for issuing Visa on the Court but directed that this Court shall give a copy of the order summoning the witnesses to the defence for the purpose of bringing the witnesses. It was also ordered that the responsibility for producing the witnesses shall ultimately be that of the accused. In the last, it was directed that after the evidence has been recorded the Bench shall fix the case for arguments both on application under section 265(K), Cr.P.C. As well as on merits of the case but in doing so the Court shall first decide the question of admissibility of documents produced before the Ehtesab Bench.

24. On 22-3-1999 when the case was taken up for hearing Mohtarama Benazir Bhutto did not appear as her own witness and instead filed an application that she would like to make a statement, if any, after she had examined the witnesses. This stand of her was contrary to the direction of the Supreme Court which had specifically directed that she be .Examined on 22-3-1999.

As regards the witnesses, her learned counsel stated that he would not like to examine any of the witness given in the list before this Court which was also before the Supreme Court of Pakistan but he may be permitted to substitute the list by another list. This again was contrary to the stand taken before the Supreme Court of Pakistan and was disallowed, upon which no witness was produced by Mohtarama Benazir Bhutto.

25. So far as Mr. Asif Ali Zardari is concerned, he had given a list of 3 witnesses. On 22-3-1999 these witnesses were summoned for 1-4-1999. So far as Salveatore A.V. Ersano, the foreign witness is concerned, a direction was issued to the Government of Pakistan to supply visa to the witness and a copy of those instructions were handed over to Mr. Farooq H. Naik, Advocate. Summonses were issued to the two other witnesses. On 1-4-1999, Mr. Nawaz Hussain, Superintendent Jail, Landhi Karachi was present while message was received from Mr. Abu Bakar Zardari, Advocate that he was busy before the Sindh High Court in his own case and, therefore, the case may be adjourned.

We are minded to issue warrants of his arrest but Dr. Z. Babar Awan, learned counsel for Mohtarama Benazir Bhutto and Mr. Asif Ali Zardari, both given an undertaking this Mr. Abu Bakar Zardari, Advocate shall be present on the next date of hearing, we, therefore, desisted from issuing the warrants. When the case came up on 5-4-1999, again only one witness namely Mr. Nawaz Hussain, Superintendent Jail, Landhi was present, whose evidence was recorded. Mr. Abu Bakar Zardari had sent a telegram to this Court that he was to appear before the Sindh High Court in some cases and an application to that effect was also moved. However, we noted that even on the last date of hearing the witness did not appear for the same reason and an undertaking was given to us by Dr. Z. Babar Awan, Advocate and Mr. Asif Ali Zardari that he will be produced today. In these _circumstances, we did not find any justification for grant of any further adjournment. Even otherwise, if the witness was busy professionally with his cases, he should have sought an adjournment from that Court on the ground that he has to appear as a witness before the Division Bench of the High Court.

25(a). So far as the foreign witness was concerned, an application was moved by Mr. Farooq H.

Naik, Advocate on behalf of Mr. Asif Ali Zardari that Mr. Salvatore A.V. Ersano be granted protection to his life. We, however, noted that although direction had been issued to the Government of Pakistan to issue visa to the witness but the witness had failed to obtain any visa. On the last two dates of hearing also the witness was not present. Along with the application Mr. Farooq H. Naik had appended a fax letter addressed by Mr. Salvator A.V. Ersano to him which does not contain any firm commitment to come to Pakistan but on the other hand, the offer is subject to certain conditions namely that there should be evidence for payment of travel fee as well as guarantee for personal security and immunity for travelling and leaving country whenever he so decides. We observe that there was nothing on the record to show that travel fee has been paid to the witness and that no steps whatsoever have been taken by the accused to procure the presence of the witnesses. The Supreme Court of Pakistan had placed the responsibility for producing him on the accused which they have failed to discharge. In these circumstances, his evidence was also closed.

26. At this stage it may also be mentioned that by order, dated 1-3-1999, we had on the request of the prosecution issued a Commission to Mr. Moazzam Hayat, Registrar, Lahore High Court, Lahore to visit Switzerland to compare certified copies produced in evidence by the prosecution with the original record available with Judge Daniel Devaud. The necessity for doing so arose firstly because an application under section 476, Cr.P.C. Had been filed by the accused alleging that the documents produced in this case have been fabricated by Mr. Hassan Wasim Afzal, P.W.14 and Senator Saif-ur-Rehman etc. And secondly that suggestion to the same effect was put to Mr. Hassan Wasim Afzal, P.W.14, while he was being cross-examined by the accused. In these circumstances, although strictly speaking it was not of utmost necessity to do so but we after hearing the parties though it fit to issue Commission to our Registrar primarily with a view to find out whether the stamps and the signatures on the documents which were certified copies were genuine and authenticated. This order of the Bench was challenged by the respondent by filing Criminal Petitions bearing Nos.53 and 54 of 1999 which were disposed of by the Hon'ble Supreme Court with the direction that this Court shall provide adequate opportunity to the parties to raise objections against the report including the question of admissibility of documents which were sent to Switzerland through Commission for the purpose of verifying the genuineness and authenticity of the said documents before finally disposing of the Reference without prejudice to the observations made in the impugned order or the leave granting order and in the light of the judgment rendered by this Court in Mohtarama Benazir Bhutto v. State (Criminal Appeals Nos.62 and 63 of 1999 and Criminal Petition No,208 of 1998 (1999 SCMR 1447)).

27. Pursuant to the above, the respondents have filed objection to the report. Mr. Moazzam Hayat, Judicial Commission was also examined as a Court witness and was also cross-examined by the learned counsel for the parties. Thereafter, we invited the Special Prosecutor to start his arguments on the main case as also the question of admissibility of documents, application under section 265(K), Cr.P.C. And lastly the report of the Commission. Mr. Ali Sibtain Fazli. Learned Special Prosecutor read out the charge against the respondents and submitted that so far as accused No,1 was concerned, she was guilty of the charge under sections 3(1)(a) and 3(1)(b) of the Ehtesab Act, 1997 while in addition to the above, Mr. Asif Ali Zardari has also committed the offence under section 4(2) of the Ehtesab Act, 1997. The learned Special Prosecutor went into the background of the case and submitted that on 11-3-1994 M/s.. Societe General Surveillance S.A.S. a Preshipment Inspection Company approached M/s. Bomer Finance which was a company owned by Mr.Asif Ali Zardari that in case it could procure a Pre-shipment Inspection contract from the Government of Pakistan, it would be paid commission at the rate of 6 per cent of the total amount. In this respect, he referred to the letter, dated 11-3-1994, Exh., P.W.14/104 which was addressed to Mr. Jens Schlegelmilch, a front man for Mr. Asif Ali Zardari, in order to show that Mr. Jens Schlegelmilch was representing Mr. Asif Ali Zardari's interest. Reference was made by the learned Prosecutor to the mandate agreement, Exh.P.W.14/32, according to which Mr. Jens Schlegelmilch was appointed as agent for Mr. Asif Ali Zardari who was described as principal. According to Mr. Fazli, it was on account of the above facts that the then Prime Minister on 26-9-1994 decided to award P.S.I.

Contract to M/s. S.G.S.. This was done dishonestly with a view to earn kickbacks from S.G.S. As promised in its letter, dated 11-3-1994. In addition to the above, Mr. Jens Schlegelmilch who was representing Mr. Asif Ali Zardari was also promised 1 per cent. Commission by M/s. S.G.S. Vide agreement Exh.P.W.14/156. The learned Special Prosecutor has also referred to certain other documents especially Exhs.P.W.14/255 and 256, Exhs.P.W.14/257, 257-A to 257-G which show that S.G.S. Had been remitting amounts on account of commissions to Bomer Finance and Mr. Jens Schlegelmilch.

28. According to the learned Special Prosecutor, the grant of contract to M/s. S.G.S. Was not only illegal but was contrary to the interest of the country and was only motivated by illegal gratification which the company had agreed to pay to Mr. Asif Ali Zardari through Bomer Finance.

29. Mr. Ali Sibtain Fazli, Special Prosecutor took great pains to explain how the remittances of commissions/kickbacks were made by M/s. S.G.S. To Mr. Jens 'Schlegelmilch for his own self as also on behalf of Mr. Asif Ali Zardari in the name of Bomer Finance. Vide letter dated 28-4-1995, Exh.PW.14/256-A, Mr. Jens Schlegelmilch wrote to M/s. S.G.S. Enclosing honorarium notes for the period from 1-1-1995 to 31-3-1995 for each of the beneficiary mentioned above. One of these notes, Exh. PW. 14/256-A, is in the sum of US $18948.15 while the others is for US $113, 688.90 representing kickbacks payable to Bomer Finance. Similarly, vide letter dated 21-11-1995, Exh. PW.14/276, M/s. S.G.S. Wrote to Mr. Jens Schlegelmilch under the heading "Pakistan fee" that a sum of US $124,200.51 and US $745,203.08 covering the fee due for April and July through September was being transferred. Along with these letters the statement of fee Exh. PW. 14/277 was also enclosed. The documents Exh. PW.14/269, Exh. 14/270, Exh. 14/272 bear out that these amounts have been transferred through Bank. The same position obtains with regard to the other amounts of kickbacks, the payment of which is proved vide letters Exh. PW.14/278, Exh. PW.14/279, Exh.PW.14/280, Exh.PW.14/282, Exh.PW.14/284, Exh.PW.14/285, Exh. PW.14/283, Exh. PW.14/287, Exh.PW.14/290, Exh.PW.14/292, Exh.PW.14/293 and Exh. PW.14/297. All these documents clearly establish that the commission at the rate of 6 per cent. To Bomer Finance and 1% to Mr. Jens Schlegelmilch was being remitted by M/s. S.G.S. In respect of the contract granted to it.

30. The learned Special Prosecutor then addressed his arguments on the question of admissibility of documents. It is stated that there are 4 kinds of documents produced in this case. The first set comprises of documents executed in Pakistan, the second set comprises of documents which were sent along with letter of rogatory and were returned after certification by the Swiss Police, Notary Public and the Pakistan Embassy, the 3rd set comprises of documents sent along with the letter of rogatory by Judge Daniel Devaud and are signed and stamped by him as also certified by the Notary Public and the Pakistan Embassy and the 4th set are the documents from Virgin Island. So far as categories 2 to 4 of the documents are concerned, the learned Special Prosecutor referred to Articles 72, 73, 74, 75, and 76 of the Qanun-e-Shahadat Order, 1984 read with Articles 85, 87, 89, 90 and 96 to contend that these contents are part of the judicial record and are public documents and as such the documents along with the contents could validly be proved by producing certified copies which has been done in the present case. Reliance was placed by the learned counsel on Bama Rao v. Chitluri Venkataramayya (AIR 1940 Madras 768) Kabul Singh and others v. Ram Singh and others (AIR 1986 Allahabad 75), Muhammad Yousaf Khan Khatak v. S.M. Ayyub and others (PLD 1972 Peshawar 175), E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536), Karamat Ali and others v. Muhammad Younis Haji (PLD 1983 SC 191), Mirza Sultan Akhtar Baig v. Punjab Province etc. (1987 MLD 408), Malik Zafar Ali v. Malik Khalid Aziz (1991 SCMR 1362) and Mst. Mangati v. Mst. Noori and others (1995 CLC 210) in order to show that the proceedings before the Judge Daniel Devaud were judicial proceedings. Reference was made by the learned Special Prosecutor to the Swiss Code which was produced before us.

31. It was next emphasised by Mr. Ali Sibtain Fazli that in any case, this Court can itself compare the signatures of Mr. Jens Schlegelmilch and Mr. Asif Ali Zardari with their admitted signatures. In this behalf, he cited S.M. Zaheer v. Syed Fazal Ali Ajmeri (1974 SCMR 490), Muslim Commercial Bank v Amir Hussain (1995 PLC 436) and Syed Muhammad Sultan v. Kabir-ud-Din (1997 CLC 1580).

32. Adverting to the question of issuance of Commission, it was explained by the learned Prosecutor that this Court had passed the order on 1-3-1999 by appointing Mr. Moazzam Hayat, its Registrar as a Commission to go to Geneva in order to find out whether the stamps and the signatures on the certified copies were genuine. This order was passed after hearing the parties and the counsel for Mr. Asif Ali Zardari, Mr. Farooq H. Naik, was informed of the 'same at 4-00 p.m.

On 3-3-1999, notice was also issued by the Commission to Dr. Z Babar Awan, Advocate, counsel for Mohtarama Benazir Bhutto. Both the accused filed appeals before the Supreme Court of Pakistan which stayed the operation of the order of appointment of the Commission. This stay order was, however, vacated on 8-3-1999. Mr. Ali Sibtain Fazli went on to point out that no request was made by either of the accused before the Supreme Court of Pakistan that they be granted further time to go to Switzerland to join the proceedings being conducted by the Commission nor did anyone apply for visa and they had no intention to go to Geneva at all. In the alternative it was argued that the failure to issue notice to the respondents accused by the Commission has caused no prejudice to the accused in view of the nature of the Commission to be executed by the Commission who was a high officer of this Court and he was required to ascertain whether the stamps had been affixed and the documents had been signed by Judge Daniel Devaud.

33. Towards the end of his arguments, the learned Special Prosecutor made reference to the objection which the respondents have raised during the course of recording of evidence and also prayed that the documents marked 'A', 'B' and 'C' may be exhibited as the same were certified copies and, in any case, they have been authenticated by the report of the Commission. The learned Special Prosecutor lastly requested that the respondents had summoned the record of the Central Board of Revenue which was voluminous in 'nature and that the aforesaid record may be made part of the record of this case in view of Article 159 of the Qanun-e-Shahadat Order, 1984.

Before closing the arguments, the learned Special Prosecutor pointed out that due to the grant of contract in question, the national exchequer has suffered loss to the tune of Rs,150 million and Rs, 8.6 million had been paid to the accused as commission/kickbacks by the companies.

34. After the conclusion of the arguments by Mr. Ali Sibtain Fazli, Special Prosecutor, Dr. Z. Babar Awan, Advocate, the learned counsel for Mohtarama Benazir Bhutto addressed us. He at the very outset pointed out that in the present case, there was no direct evidence available to connect the respondents-accused, with the commission of any crime and the case was based on, surmises, conjectures, probabilities and possibilities. He went on to elaborate that no one has come forward to claim that at any stage illegal gratification was demanded by the accused in misuse of the powers nor was there any evidence of payment of illegal gratification or receipt thereof by the accused. Dr. Babar Awan also criticised the investigation carried out in this case which was termed as unilateral and one-sided and it was emphasised that neither Mohtarama Benazir Bhutto nor Mr. Asif Ali Zardari were examined by the two Investigating Officers, Mr. Jamil Awaisi, P.W.12 and Gulshan Khan, P.W.4 or by Mr. Hassan Wasim A fzal P. W .14 .

35. After making preliminary submission, the learned counsel first of all attacked the case of the prosecution that Mr. Jens Schlegelmilch was an agent of Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto and had come to Pakistan in connection with the award of contract Exh. P.W.9/A. According to him, the visit of Mr. Jens Schlegelmilch to Pakistan was not at all proved. He in this behalf referred to the statements of Mr. Saqlain Shah, P.W.1, Security In charge of the Prime Minister House who had produced the record relating to the visits of persons to the Prime Minister House for the period from 8-5-1995 as also of Mr. Waseem Ahmad P.W.2, Room Reservation Manager. The learned counsel pointed out that there was inherent contradiction between the documents annexed alongwith the supplementary challan and the record produced before this Court.

36. The case was then taken over on behalf of Mohtarama Benazir Bhutto by Mr. Farooq H. Naik, who read out the charge against his client and submitted that the prosecution has failed to approve the same. Accordingly, the learned counsel submitted that in order to succeed, it must be established by the prosecution that Mohtarama Menazir Bhutto had ordered the grant of contract; that she did so* in abetment with the other co-accused; that the act was done dishonestly, illegally and amounted to corrupt practices; that illegal gratification and commission was agreed upon between the parties and lastly that commission was paid by M/s. S.G.S. In the account of the accused, According to Mr. Naik the prosecution has examined 16 witnesses and has produced about 400 documents but it has failed to prove any ingredient of the charge against the accused.

It was pointed out that out of 400 documents the Special Prosecutor during the course of arguments has referred to only 60 documents. Mr. Farooq H. Naik went on to argue that it was the Special Committee of the Cabinet which has granted the contract to M/s. S.G.S. And not Mohtarama Benazir Bhutto alone. He submitted that there was no evidence whatsoever that Ms. Benazir Bhutto had directed the award of contract muchless that the award of contract was illegal, corrupt or dishonest. The learned counsel referred to various documents like Exh.PW.14/32, Exh.PW.14/156, 19 Memorandum and Articles of Association of off-shore companies and criticise the name. He also referred to the statement of Mr. Jene Schlegelmilch Exh.PW.14/162 and submitted that the same was not on oath and, therefore, did not amount to testimony. Similarly, with regard to Exh.PW.14/36, it was argued that there was no proof that the handwriting was that of Mr. Jens Schlegelmilch. Same was the case with Exh.PW.14/280, Exh.P.W.14/281, Exh.P.W.14/282, Exh.P.W.14/285, Exh.P.W.14/286, Exh.PW.14/287 and Exh.PW.14/299.

3.7. Coming next to the question of admissibility of documents, the learned counsel stated that so far as the Pakistani documents tendered P.W.1 to P.W. 12 are concerned, they are hit by Article 78 of the Qanun-e-Shahadat Order, 1984 and are not admissible in evidence. As regards the foreign documents, Exh.PW.14/1 to Exh.P.W.14/152, the learned counsel cmphasised that only one document namely, Exh.PW.14/1 was that of the Attorney-General for Pakistan while other documents belong to some other persons. As regards Exh.PW.14/153 to Exh.PW.14/319, according to the learned counsel, these were sent by the Magistrate along with rogatory letter and were not admissible in evidence.

According to him, the purported certified copies were not in accordance with law and the documents have been tendered in violation of section 15(1) of the Ehtesab Act, 1997. It was further objected that some of the documents were in French and have been translated in the absence of the respondents and their counsel and, therefore, inadmissible in view of section 361, Cr.P.C.

38. Mr. Naik then elaborated that the proceedings before the Judge Daniel Devaud were not judicial proceedings and the record thereof was not judicial record and. Therefore, certified copies of these documents were not admissible. As regards the mandate agreement, Exh.PW.14/32, it was pointed out that it was not witnessed by any one and had not been attested by any witness. According to the learned counsel, certified copies were inadmissible in view of Articles 74, 76, 78, 85, 87, 88, 89 and 90 of the Qanun-e-Shahadat Order, 1984. It was also pointed out that while sending the documents, Judge Daniel Devaud did not give permission to use the same. According to the learned counsel, all the documents were private and not public documents and as such were not liable to be proved through production of certified copies. It was also pointed out that Mr, Hassan Wasim Afzal, P.W.14, was neither executant of documents nor addressee nor scribe and no documents could be proved during his statement.

39. After having dealt with the documents, the learned counsel read out the statements of Mr. Ahmed Sadiq, P.W.5, Mr. Mumtaz Ali, P.W.9, Mr. Ramzan Bhatti, P.W.10, Mr. Sohail Rehan P.W. 7, Mr. Khalid Mahmood P.W.8, and Mr. Muhammad Jamil Awaisi P.W.12 to argue that the testimony of these witnesses contain admission which would help the defence rather than the prosecution. The learned counsel also referred to certain documents including the report of M/s. Ferguson & Company that the experience in Pakistan or P.S.I. Companies has been successful and profitable.

As regards the legality of the contract, the learned counsel referred to section 219 of the Customs Act, 1969, to argue that it was permissible for the Customs Authorities to have employed P.S.I.

Companies which did not amount to abdication of functions by them.

40. With respect to the documents produced by the prosecution it was objected to by Mr. Farooq H.

Naik that these documents have not been proved and are not admissible in evidence. He referred to the statement of Mr. Hassan Wasim Afzal, P.W.14, during the course of which these documents were exhibited who had stated that these documents were never prepared in his presence nor signed before him. According to the learned counsel, the proceedings before the Swiss Authorities were not judicial proceedings and as such certified copies of those proceedings were not admissible in evidence. With respect to the documents sent by the Attorney-General for Pakistan, it was stated that only first document contains certificate and the remaining documents are inadmissible in evidence. Morever, other documents too did not bear certification by the proper Authorities. The learned counsel pointed out that the nature of the documents was such that those could not be considered as public documents under the Qanun-e-Shahadat Order, 1984 but were private documents. As regards ledger, Exh.PW.14/36, it was stated that it was clearly a private document and unless the entries were proved through evidence of someone, the document was not admissible. Same objection was raised with regard to Exh.PW.14/38 and Exh.14/14. The learned counsel emphasised that there was no proof on the record to show that Bomer Finance was owned or in any way connected with Mohtarama Benazir Bhutto or Mr. Asif Ali Zardari and as such the reference is bound to fail.

41. Mr. Farooq H. Naik submitted that this Court cannot compare signatures on the photostat with the original. In this behalf he cited Gustad Maneckji Shekdar v. The State (PLD 1959 Dacca 756).

42. After the completion of arguments by Mr. Farooq H.Naik, Advocate, Mr. Hafeez Pirzada, Advocate started his arguments on behalf of Mr. Asif Ali Zardari. He stated that he would argue his application under section 265(K) of the Code of Criminal Procedure read with section 151 of the Code of Civil Procedure (Criminal Miscellaneous No,22/99) and the main case on merits together and his arguments will cover both the matters. Mr. Pirzada then read out the charge and stated that Mr. Asif Ali Zardari was a Member of the Parliament and had nothing to do with the executive acts and as such the charge against him on the face of it, was not maintainable.

43. It was argued that the trial was in violation of Articles 4, 9 and 12 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel submitted that though section 29 of the Ehtesab Act, 1997 takes care of sub-Article (2) of Article 12 of the Constitution, yet the Legislature has violated sub-Article (I) thereof. Reliance was also placed on Articles 4 and 9 of the Constitution by stating that every Court or Authority is bound to follow the rules of law which includes the principles of natural justice.

44. The learned counsel then took up the question of issuance of Commission and argued that neither under section 561-A of the Code of Criminal Procedure nor section 12(3) of the Ehtesab Act, 1997 could this Court adopt the procedure of sending a Commission to verify the documents. It was pointed out that the only power possessed by a Court to issue Commission is given by section 503 of the Code of Criminal Procedure which has absolutely no applicability here and, therefore, no Commission could be issued to Switzerland especially when there was no reciprocal arrangements. According to the learned counsel such a procedure could not be adopted by this Court.

45. Mr. Pirzada continued his arguments and submitted that after the enactment of Article 175 of the Constitution the Courts enjoy only that power which is conferred upon them by law and not any other power. He submitted that section 561-A of Cr. P.C. Should be interpreted in that light. Reliance was placed by the learned counsel on a judgment of this Court reported as Sh. Sardar Ali v. State (PLD 1987 Lah. 633). It was elaborated that under the Code of Criminal Procedure a Commission can only be issued for examination of witnesses and for no other purpose. Furthermore, Commission can issue to a Court of country with which Pakistan has reciprocal arrangements and Switzerland was not one of those countries. According to the learned counsel, an open ended Commission should not have been sent to Switzerland nor could the Registrar of this Court be granted any power. He cited Ratilal Bhanji Mithani v. The State of Maharashtra (AIR 1972 SC 1567).

46. The learned counsel then referred to the corresponding provision in the C.P.C. Namely sections 75 to 78, C.P.C. And. Order 26, Rule 9, C.P.C. And pointed out the difference between the two.

According to the learned counsel, the Commission was appointed on an application under section 476, Cr.P.C. Filed by Ms. Benazir Bhutto to which Mr. Zardari was not a party and, therefore. No notice was issued to him and report of the Commission is not binding. Sardar Ali v. State (PLD 1967 SC 217) and Muhammad Khalid Mukhtar v. State (PLD 1997 SC 275) were relied upon.

47'. Adverting to the question of admissibility of documents, the learned counsel submitted that statements made in previous proceedings were not admissible in view of proviso to Article 47 of the Qanun-e-Shahadat Order, 1984 inasmuch as the litigation was not between the same parties and Mr. Sardari had no opportunity to cross-examine the witness.

48. The learned counsel then argued the case on merits and submitted that the case of the prosecution flows from the decision made in a Committee of the Cabinet which is collectively responsible and as such the Prime Minister alone could not have been proceeded against for the grant of contract. It was explained that the exercise of powers amenates from the Cabinet, the executive acts and executive authority including the exercise of executive discretion vests in the Cabinet and the mere fact that the decision was wrong or it violated certain rules or statutes may be a ground for striking it down under Article 199 of the Constitution but no criminal case can be founded on that basis. The learned counsel submitted that it is in evidence that S.G.S. Is one of the biggest Inspection Agency in the world and the decision taken was reasonable. It was argued by Mr. Pirzada that in the calendar of witnesses, Mr. V. A. Jaffari and Javed Talat were cited as witnesses and both of them have anticipated in the meeting as witnesses but both of them have been given up without stating any reason. According to the learned counsel, Mr. V. A. Jaffari was still in the country while Mr. Javed Tallat had left the country only after two months. He submitted that this Court is bound to draw presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that in case they had been summoned they had made statements, which would have gone against them. He also pointed out that similarly the Chief of Customs Khalil Ahmad and Judge Daniel Devaude have not been examined, the Learned counsel submitted that the question of admissibility of documents should have been decided before the statement under section 342, Cr.P.0 which has prejudiced the case of the accused. Similarly, relying on section 265(g), it was stated that since Mr. Asif Ali Zardari had led evidence in defence, the defence should have been asked to open arguments and the prosecution should have been heard subsequently but in the present case vice versa has happened.

49. In support of the contention that the failure to examine a particular person gives rise to an adverse presumption the learned counsel cited Emperor v. Muktar Ali (AIR 1944 Calcutta 306), Taj Muhammad v. Emperor (AIR 1928 Lah. 125), Dukhiram Dey v. Mrityunjoy Prosad Daw and others (AIR 1982 Calcutta 294), Primdas v. Mst. Akbari and others (AIR 1973 Madhya Pradesh 224) and Manu Biswa l v. Mst. Lata Biswa lani and others (AIR 1965 Orissa 13).

50. He went on to argue that in criminal cases onus always remains on prosecution but assuming that in cases like Ehtesab the burden shifts upon the accused it stands discharged by any reasonable explanation. He relied upon Safdar Ali v. Crown (PLD 1953 Federal Court 93). It was argued that in such a case the accused is entitled to be acquitted as a right.

51. Towards the end of his arguments learned counsel referred to the Swiss Code of Criminal Procedure and submitted that the adjudicating Magistrate was nothing better than a police officer whose primary job was to collect evidence and proceedings before him were not judicial in nature.

In particular, reference was made by the learned counsel to Articles 118, 131, 134, 142, 143, 144, 168, 169, 174, 183, 184, 199 and 200 of the Swiss Code. It was emphasised by the learned counsel that in Switzerland there has been no adjudication over the matter and the matter is at the stage of investigation. File has yet to be sent to the Attorney-General who has to decide whether to charge or indict the accused or to shelve the proceedings. Learned counsel further submitted that the copies of secret docurfients have been obtained which could not have been done. The documents produced by the prosecution have not been notarised in accordance with Swiss Law. Reference was made to Articles 22 and 23 of the Code of Criminal Procedure: State v. Muzaffar Hussain (1998 MLD 118) was cited by the learned counsel.

52. The objection of Mr. Abdul Hafeez Pirzada that the trial of respondents is violative of Article 12 of Constitution of Islamic Republic of Pakistan, 1973, is devoid of any merit. Section' 29 of the Ehtesab Act, 1997 itself provides protection against retrospective punishment and states that nothing contained in the Ehtesab Act, 1997 shall authorise punishment of a person for an offence by a penalty greater than or a kind different from the penalty prescribed by the law for that offence at the time the offence was committed and the Court while imposing penalty may, if necessary, modify it to such extent as may be necessary. It was in realization of this legal position that the learned counsel relied upon clause (a) of sub-Article (1) of Article 12 of the Constitution but this reliance is of no avail inasmuch as at the time when the offences were committed in the year 1994 there were different laws in the field providing punishment for the acts committed. It needs not be emphasised that clause (a) applies only to cases where an act is not an offence when committed but if the act was an offence even at that time though under different law the trial under the new law does not in any manner violate the Constitutional protection. In the present case, the action of the respondents in awarding contracts for illegal gratification and receiving kickbacks was an offence under Presidential Orders Nos.16 and 17 of 1977. As such there has been no violation of Constitutional guarantee. Similarly Articles 4 and 9 of the Constitution have neither any application nor has there been any transgression of the same. The respondents are being tried by a Court duly established by law and in accordance therewith.

53. As stated earlier, the Hon'ble Supreme Court of Pakistan while deciding Criminal Petitions Nos.

166 and 167 of .1999 has directed this Bench to address the question of admissibility of documents first. Consequently, we proceed to do so.

54. Admissibility of documents, tendered in evidence in this case, has been mainly questioned on the ground that proceedings before the Swiss judge Daniel Devaud were investigation proceedings, documents do not form part of any judicial proceedings or record, the Investigating Judge did not have any power to try or convict, the original documents did not form part of record of Swiss Judge, certification was not made in accordance with law, the documents were not public documents but were private documents, the Pakistani documents were not proved in accordance with Article 78 of the Qanun-e-Shahadat Order, 1984, Hassan Wasim Afzal who produced documents was neither scribe nor a witness of the documents or a person to whom the documents were addressed, none of the scribes, executants or persons to whom documents were addressed was produced/examined by the Investigating Officer or by Hassan Wasim Afzal Coordinator, the Investigating Officer was never allowed to make use of the documents sent along with letter of rogatory, the documents being secret documents could not be used and that the mere fact that the Investigating Judge recovered certain documents during investigation would not mean that the same were proved and also that the certified copy of statement of Jenshlegan will be inadmissible under Article 47 of Qanun-e-Shahadat Order, 1984.

55. While dealing with the objections, it will have to be kept in view that the documents produced in evidence are certified copies of documents/record, exhibited in Ehtesab Reference No,26 of 1998, which is pending before the Ehtesab Bench comprising of Mr. Justice Ihsanul Haq Chaudhry and Raja Muhammad Khurshid. The documents were admitted in evidence in the said reference and form part of judicial record while certified copies thereof have been tendered in evidence in the present Reference. These documents comprise of certified copies of documents executed in Pakistan, documents certified by the office of Federal Police, Berne, notarised by notary public in Berne with further certification by Pakistan Embassy, certified copies of documents sent along with the letter of rogatory by Swiss Judge Deniel Devaud, signed, certified and stamped by him and also certified by Pakistan Embassy and the documents from Virgin Iseland.

56. Article 72 of Qanun-e-Shahadat Order, 1984 provides that contents of documents may be proved either by primary or secondary evidence. Article 75 of Qanun-e-shahadat Order provides that the documents must be proved by primary evidence, except in the cases covered by Articles thereafter. Article 76 contemplates that secondary evidence can be given of the existence, condition and contents of a document, in cases enumerated therein. Reference can be made to clauses (a), (t) and (i) of the Article which deals with the cases where the original is in possession of any person out of reach of Court and not subject to process of Court or where the original document is a public document within the meaning of Article 85 or forms part of Judicial record.

Article 85 (1) (iii) and Article 85(3) of Qanun-e-Shahadat Order declare documents of public officers, legislative, judicial and executive, of any part of Pakistan or of a foreign country or documents forming part of judicial proceedings to be public documents, while Article 88 of Qanun-e-Shahadat Order permits the proof of public documents by producing certified copies thereof. Article 89(5), ibid, provides that public document of any other class in a foreign country can be proved by original or by a copy certified by the legal keeper thereof, with the certificate under the seal of Notary Public or a Pakistani Consul or Diplomatic Agent that the copies are duly certified by the officers having legal custody of the original. Explanation to Article 87 contemplates that any officer, who by the ordinary course of official duty, is authorised to deliver such copies shall be deemed to have custody of such documents within the meaning of said Article.

57. It is thus obvious that for proving existence, condition or contents of a document certified copies can be tendered in evidence, if the original is a public document within the meanings of Article 85 or where the original document forms part of judicial record or document of public officers, legislative, judicial and executive, or of any part of Pakistan or a foreign country. Likewise, certified copy of a document forming part of judicial proceedings can be produced to prove the document. Similarly, the certified copy of a public document of any other class in a foreign country can also be produced to prove the document, if the copy is certified by the keeper thereof with a certificate under the seal of Notary Public or of a Pakistani Consul or Diplomatic agent that the copies are duly petrified by the officers, having legal custody of the original and upon proof of character of document according to law of foreign country. Article 90 of Qanun-e-Shahadat Order, 1984 raises a presumption as to the genuineness of certified copies, which, in law, are declared to be admissible in evidence of a particular fact. It provides that the Court shall presume that any officer by whom such document purports to be signed and certified, held when he signed it, the official character which he claims in such document.

58. To ascertain nature and character of proceedings before the Swiss Judge, a reference can be made to various articles and provisions of a Penal Procedure Code of Republic and Canton of Geneva. The minute study of Articles 118 and 178 of the said Code clarifies that in the preparatory investigations, the examining Magistrate in Geneva acts in judicial capacity, can hear the complainant, issue warrants of arrest under Article 145,- issue order of release without security or bail, examine witnesses, issue summons for their appearance, convict a person as a result of his investigation up to 6 months, and is a legal keeper of the record in terms of Article 184(e) of the said Code who can issue copies thereof.

59. The various Articles, which deal with the powers of the Investigating Magistrate or the nature of the proceedings, are Article 40 (preventive detention), Article 41 (powers to inform the accused of his right to choose defence counsel, to have benefit of judicial assistance, to request for provisional release, to appeal to the arraignment part against any decision of the Investigating Magistrate), Article 43 (power to hear), Article 50 (obligation of witnesses to appear before the Investigating Magistrate and consequences of nonappearance), Article 51 (powers to testify at the time of hearing), Article 52 (powers to enforce consequence of non-appearance of witnesses), Article 53 (power to give decision on the demmurrer and admitting right to appeal), Article 54 (right of appeal against the decision of the Investigating Magistrate). Article 59 (power to give oath), Article 61 (powers to ask questions to the witnesses, Article 62 (power to refuse asking of question), Article 132 (hearing of accuser or complainant), Article 134 (indictment), Article 138 (investigation. Full hearing and right of accused to have assistance of counsel), Article 142 (regarding right of accused and his counsel to examine the record and obtain . Copies), Article 145 (arrest warrant), Article 149 (power of solitary confinement), Article 185 (power to issue conviction ruling, pursuant to Articles 218-G), Article 218-B (power of Investigating Magistrate to convict and impose penalty), Article 218-D (appeal against the order of Investigating Magistrate). For all intents and purposes, he exercises judicial powers and by no stretch of imagination it can be assumed that his role is that of an Investigating Officer simpliciter and that the proceedings before him are not judicial in character. The proceedings before the examining Magistrate are not only investigatory in nature but the Examining :dagistrate is required to adjudicate upon the rights and obligations. Even the perusal of letter of rogatory and other documents sent by the Swiss Judge, are indicative of the fact that he was exercising his judicial powers and was acting in judicial capacity,. Reference can be made to Muhammad Saeed and 4 others v. The Election Petitions Tribunal and others (PLD 1957 SC 91), wherein it was observed by the Supreme Court that an inquiry would be judicial if the objective is to determine a jural relation between one person and other or a group of persons or between him and the State, representing community and generally speaking if a person is enjoying powers to adjudicate and determine as between the parties, some controversies. Relating to existence or non-existence of right and liability. Considering the factors noted supra, we have no doubt in our minds that the proceedings before the Swiss Judge were judicial in character and the documents forming part of his record would be deemed to be documents of judicial record.

60. The documents certified by the Swiss Police, Notary Public and Pakistan Embassy and also the documents signed, certified and stamped by the Swiss Judge with further certification of Pakistan Embassy would be deemed to be copies of documents forming part of public record and foreign judicial record/proceedings and as such admissible in evidence under Article 76(a)(f) and (i), Article. 85(i)(iii), Article 85(3) and Article 89(5) of Qanun-e-Shahadat Order, 1984. Under Articles 90 and 96 of Qanun-e-Shahadat Order, the documents being certified copies of foreign judicial record and public documents, wold bepresumed to be genuine and sufficient proof as t(' the existence and contents thereof.

61. It is observed that under Article 89 of Qanune-e-Shahadat Order, 1984, a foreign document of other class and also be proved by the original or certified copy which is certified by the legal keeper of the document, by Notary Public and Pakistani Diplomatic Agent in that country and under Article 96 of the said Order, there will be presumption of genuineness and accuracy of foreign record.

62, In Mirza Sultan Akhtar v. Punjab Province and others (1987 MLD 408), it was observed that a public document can be proved by production of certified copy. Similarly, in Karamat Ali and others v. Muhammad Younas and others (PLD 1963 SC 191), it was observed by the Supreme Court that the notice issued by the Settlement Board under section 37-A of Bengal Agricultural Debtors Act, being public document can be proved by production of certified copies. Reference can be made to Rama Rao v. Chitluri Venkataramayya (AIR 1940 Madras 768) where it was observed as follows:- "In my judgment, it would be putting an unwarranted restriction on the words 'documents forming the acts or records of the acts to say that they should be confined to those parts on an income-tax record which the Income Tax Officer has himself prepared and to exclude documents which he has himself called for or which have been admitted to the record for the purposes of the assessment. I consider that the record of an income-tax case must be regarded as record of the acts of the Income Tax Officer on the record is just as much a public document as the final order of assessm ent."

63. In Kabul Singh and another v. Ram Singh and others (AIR 1986 Allahabad 75) the view taken was that the agreement forming part of the act or record of sovereign authority constitutes part of public record and would not require any formal proof. In Sahib Dad v. Muhammad Inam and 4 others (PLD 1985 Quetta 69), it was observed that certified copies of documents forming part of judicial proceedings being public document, are admissible in evidence. In Abdul Ghani v. Haji Saley Muhammad (PLD 1960 Kar. 594), it was ruled that endorsement of Ceylon Ministry of External Affairs, coupled with attestation of representative of Pakistan Government is sufficient compliance of section 86 of Evidence Act and the mere fact that attestation of Pakistan Government does not specifically contain a statement "I certify that the certified copies of the Colombo Court are certified in the manner commonly used in that country" will not render the attestation as worthless endorsement because in law attestation means that the document in question was ex-cuted before the attestator by an authorised person. It was held that attestatior f the certified copies of Colombo Court by representative of Pakistani Government in Ceylon Ministry will be by one of the means by which its genuineness could be proved.

64. In the present case, the documents Exhs.P.W.14/1 to P.W.14/152 are copies certified by the office of Federal Police, Berne, duly notarised by the Notary Public in Berne and certified by Pakistan Embassy, which were the documents sent by the Attorney-General of Pakistan to the Swiss Authorities and on the basis thereof, mutual assistance was sought and initial blocking orders were passed. The documents P.W.14/153 to P.W.14/319 are certified copies of documents which accompanied letter of rogatory sent by the Swiss Judge Deniel Devaud along with their translations. These documents also include marks 'A', 'B', 'C' and 'D' which are account opening forms, form of Bomer Finance Inc. With a bank in Geneva, documents Exhs.P.14/320 to P.W.14/338 are certified copies of memorandum of Articles of Association of 19 off-shore companies registered and incorporated in British Virgin Iseland, certified by Registrar of Companies in British Virgin Iseland with certification by the Pakistan High Commission, London. The documents tendered in evidence by the prosecution are, in the first instance, certified copies of judicial record of Ehtesab Reference and as such admissible under Article 85(3) of the Qanun-e-Shahadat Order, 1984. The documents are also admissible under Article 76(a)(f) and (i), Article 85(i)(iii) and Article 89(5) of the Qanun-e-Shahadat Order, 1984 and are presumed to be genuine. Being copies of public record and judicial record, the documents are admissible per se and are sufficiently proved in accordance with law. The objection as to admissibility of these documents in evidence, raised by the defence, is, therefore, without substance. Other objection based on Articles 47 and 78 of Qanun-e-Shahadat Order, 1984 is also without substance. As the statement made in the judicial proceedings or before a person authorised by law to take it is relevant for the purposes of proving, in the subsequent judicial proceedings, the truth of the facts which it states, if the presence of witnesses cannot be obtained without any amount of delay or expense, which under the circumstances of the case, Court considers reasonable. Since the attendance of Jenshlegan cannot be obtained in the ordinary course and he being an accused is otherwise not willing to appear the statement made by him in the previous judicial proceedings will be relevant, without his appearance as a witness in the present case. The plea that the proceedings before the Swiss Judge were not between the same parties, raised on the basis of Exh.D.1, does not appear to be well-founded for the reason that admittedly the proceedings before the Swiss Judge were initially initiated in consequence of documents forwarded H by the Attorney-General of Pakistan to the Swiss Authorities for seeking mutual assistance and initial blocking orders and, therefore, for all intents and purposes, the Government of Pakistan was a party to those proceedings. Similarly, the production of executants as witness of documents was not necessary as the documents being certified copies of public and judicial record, were admissible per se, to prove the contents, existence and genuineness thereof. Even the objection as to the absence of permission to use documents or on the ground of secrecy of proceedings is not well-placed as the letter from Swiss Police permits the use of documents and the other documents having been sent by the Swiss Judge, himself with his seal and stamp, the permission to make use thereof will be deemed to have been granted. Even otherwise, we are not dealing with the question if any. Provision of Swiss law has been violated, and we are only to examine if the documents form part of judicial record and the proceedings before I the Swiss Judge were judicial in character or not.

65. We, in exercise of our power under Article 84 of Qanun-e-Shahadat Order, 1984 have also compared the signatures/writing of Mr. Asif Ali Zardari and Jens Schlegelmilch, on the account opening form and mandate agreement, with the admitted signatures on the documents on record like power of attorney, affidavit, agreement to award contract, and we have no doubt in our mind that the two sets of signatures have similar characteristics and are of the same persons.

66. In addition, we sent Mr. Moazzam Hayat to verify and authenticate the documents from the record of Swiss Judge, who in his report has authenticated the documents. The Commission reported that the documents Exh.P.W.7/153 to Exh.P.W.7/319 (certified copies whereof have been produced in the presen reference as Exh.P.W. 14/153 to Exh.P.W.14/319), excluding English translation compared with the record of Mr. Daneil Devaud and Swiss Judge placed before him the relevant documents from his record. After comparison the Commission recorded his authentication on each and every Exhibit number. He has also reported that the documents Marks A, B, C and D were also compared and authenticated. It was also reported that Mr. Daniel Devaud acknowledged the signatures on Mark 'A' and Mark 'C' and also acknowledged seal of his office on the documents in his possession.

67. Even if the report of the Local Commission is kept out of consideration, the documents tendered in evidence by the prosecution are otherwise admissible and proved, in terms of Article 76(a)(f) and (i), Article 85(iii), Article 85(3) and Article 89(5) of Qanun-e-Shahadat Order, 1984 and the same are presumed to be genuine and sufficient proof as to the contents and existence thereof, in terms of Articles 88, 90 and 96 of Qanun-e-Shahadat Order, 1984.

68. On account of the factors noted supra, and reasons hereinabove, we conclude that the documents tendered in evidence are admissible, the objection raised to the admissibility of documents is untenable and that the documents are duly and lawfully proved, without any reasonable doubt. Resultantly, we treat the documents to be part of our record and also exhibit the marked documents as Exhs.A, B, C, D and E. However, the effect of these documents and to what extent prosecution could prove its case on the basis thereof will be seen thereafter.

69. Adverting now to the question of issuance of Commission, it is true that as has been stated by Mr. Moazzam Hayat, Commissioner, he did not issue any notice to Mr.Asif Ali Zardari directly but that was for the reason that his appointment was basically in the application by Mohtarama Benazir Bhutto against certain persons to which Mr. Asif Ali Zardari was not a party. Be that as it may. Mr. Asif Ali Zardari and Mohtarama Benazir Bhutto were fully aware of the appointment of the Commission and the date fixed by him and it is an admitted fact that a Fax Message was sent to Mr. Farooq H. Naik, learned counsel for Mr. Asif Ali Zardari (who also represented Mohtarama Benazir Bhutto and addressed final arguments on her behalf) by the Additional Registrar of this Court.

There is also no merit in the contention that the Commission was appointed without granting any hearing to the respondents. They as well as their learned counsel were fully heard before the order was passed. In any case, they have now been granted ex post facto hearing as they have addressed this Court on the report of the Commission after filing objections. It is important to note that the Commission was appointed on account of the objection by Mrs. Benazir Bhutto that the certified copies produced in this Reference were forged and for authentication of documents it was deemed necessary to inspect the record of Swiss Judge Daneil Devuad. We, therefore, appointed a person not less than a Sessions Judge who was the Registrar of the High Court to report about the documents after inspecting the record. Mr. Hafiz Pirzada, Advocate candidly took up the position in the course of his arguments that his client had never taken up the position nor it was his case that the certified copies produced in this Reference were forged and his plea was that the documents were not proved and were otherwise inadmissible. Therefore. He was never interested for the appointment of any Commission. In view of the position taken, by learned counsel, Mr. Asif Ali Zardari cannot possibly object to the report of the Commissioner on the ground that he was not allegedly associated in the proceedings, as the purpose of appointment of Commission was to compare the certified copies with the record of Swiss Judge Daneil Devuad, while the other questions, i,e, proof or admissibility of documents are being dealt with by us independently. We have also noted that after withdrawal of the stay order by the Supreme Court, against the proceedings of the Commission, neither Mr. Asif Ali Zardari nor Mohtarama Benazir Bhutto ever requested, either to the Supreme Court, or this Court or to the Commission, for granting time to enable them to associate the proceedings, which makes their conduct obvious that they were not interested to participate, and therefore, the objection on this account at this stage is without any substance.

70. It may be stated that Mr. Moazzam Hayat was appointed as Commission not in the ordinary sense of the word as he was not required to carry out any facts findings or record any evidence or to make an investigation or inquiry. He was, as a matter of fact, sent to Geneva as a representative of the Court only with a view to verify whether the stamps affixed on the copies and the signatures were those of the authorities in Switzerland. His function was in the nature of eyes of the Court, and therefore, even if no notice has been given by him to any of the affected parties, the proceedings could not vitiate. It is also to be seen that no arrangement, whatsoever, was made by either of the two accused to participate in the proceedings in Genenva. So much so, none of them had applied for grant of visa. The Commission was not issued under Order XXVI of the Code of Civil Procedure or under section 503 of Cr.P.C., but in exercise of our inherent jurisdiction. Needless to mention that under section 12(3), of Ehtesab Act, 1997, we can adopt any procedure for doing justice between the parties. In view of the nature of the dispute before us, we deemed it necessary that the Commission be appointed to authenticate the documents produced in the reference to which no objection can be raised on the touchstone of Order XXVI of C.P.C. Or section 503 of Cr.P.C.

71. Coming now to the merits of the case, the contention of Mr. Ali Sibtain Fazli, Special Prosecutor that it was the Prime Minister and not the Committee set up by her which granted the contract to M/s. S.G.S. Is not without force. The agenda of the meeting summoned by the Prime Minister Exh:P.W.12/E shows that the following points were to be discussed in the said meeting:-- "CONTRACT DURATION.

' Duration proposed by P.S.I. Companies is 5 years renewable by successive period of 5 years General trend is of shorter duration contracts, typically for two years, renewable on yearly basis.

BASIS OF FEE CALCULATION ' P.S.I. Companies have proposed 0.78% age of durable value. Cotecna contract of 1990-91 was based on accepted invoice C&F value.

72. This clearly shows that in principle the Prime Minister had already decided to award the contract to M/s. S.G.S. And only modalities were to be discussed. Furthermore, in the minutes of the meeting, Exh.P.W.7/A prepared by Mr. Sohail Rehan, Deputy Secretary, again it has been reiterated that:- "A presentation was made by C.B.R. On the subject in a meeting chaired by the Prime Minister. The list of participants is enclosed.

(2) The following decisions were taken in the meeting:-- Contract Duration ' Duration proposed by P.S.I. Companies is 5 years, renewable by successive periods of 5 years.

General trend is of shorter duration contracts, typically for two years, renewable on yearly basis.

Basis of Fee Calculation P.S.I. Companies have proposed 0.78% of dutiable value. Cotecna contract of 1990-91 was based on accepted invoice C&F value.

73. These minutes were approved vide Exh.P.W.7/C, dated 25-9-1994 issued under the signatures of Mr. Waciar Masood Khan, Additional Secretary (E&F). The most important document in this behalf is memorandum, dated 26-9-1994 issued by Mr. Sohail Rehan, Deputy Secretary (E&F) in which it has been categorically stated that the Prime Minister has approved the award of reshipment inspection contract to M/s. S.G.S. And Cotecna covering the scope of work proposed by them. This document (Exh.P.W.7/B) reads as under:- "A presentation was made by C.B.R. On the subject in a meeting chaired by the Prime Minister. The list of participants is enclosed.

(2) The Prime Minister approved the award of Preshipment Inspection contract to S.G.S. And Cotecna covering the scope of work proposed by them. It was also decided, that :--

(i) The contract duration be 5 years, renewable by successive period of 5 years, with a termination clause requiring 3 months' notice in case of unsatisfactory performance;

(ii) fees be paid at the rate of 0.78% of dutiable value. This issues in partial modification of the earlier U.O. Of even number dated September 18, 1994.

74. In the face of the aforesaid document, it is not possible to contend that it was the committee set up by the Prime Minister which had granted the contract to M/s. S.G.S. And not the Prime Minister herself. This stand is clearly belied by the positive words of Exh.P.W.7/B. Moreover, as is obvious from the above, at the time of presentation, the question award of contract to M/s. S.G.S. And Cotecna was never discussed and the discussion in the meeting was only confined to some other matters.

75. So far as the presentation is concerned, it was attended in addition to the Prime Minister, who chaired the meeting, Mr. A.R. Siddiqui, the then Chairman, Central Board of Revenue, Mr. Mumtaz Ali, the then Member (Customs), Mr. Khalil Ahmad, the then Chief Collector of Customs, Mr. Ahmad Sadiq, Principal Secretary to the Prime Minister, Mr. V.A. Jaffari, the then Advisor to the Prime Minister Mr. Javed Talat, Secretary Finance, Mr. Waqar Masood, Additional Secretary, Mr. Makhdoom Shahab-ud-Din, Minister of State for Finance, Mr. Iftikhar Qutab, Section Officer to the Collector of Customs, Mr. Alim-ud-Din, Deputy Chairman, Planning Commission and Mr. Zaheer-ud-Din, Secretary (Customs Budget). Excepting one, none else was member of the Committee. It is, thus, clear that the meeting was neither of the Cabinet nor of its Committee.

76. The prosecution has produced Mr. Ahmad Sadiq, P.W.5, who stated that the decision to grant contract had already been taken by the Prime Minister. The was supported in this behalf by Mr. Mumtaz Ali, Member (Customs) who appeared as P.W.9 and deposed that he had raised objection with Mr. A.R. Iddiqui that the scheme had already been attested and discarded in Pakistan, who was told by Mr. A.R Siddiqui that the decision to grant contract had already been taken. It follows from the above and especially from the documents referred to and reproduced that the decision to grant contract to M/s. S.G.S. Had already been taken by the Prime Minister.

77. It is interesting to note that while granting contract, all rules and regulations on the subject had been violated and the principle of transparency was done away with. No tenders were invited for the grant of contract nor were other companies allowed to participate in the same. The evaluation report prepared in the year 1992 was relied upon for the grant of contract in the year 1994, notwithstanding the passage of period of two years.

78. The respondents had themselves summoned the entire record from the Central Board of Revenue and the perusal of File No,2(26)/S/Va1/96/Law shows that even 1992 Pre-qualification Report was not used in view of the Prime Minister's Secretariat letter, dated 5-4-1994 that only the cases of 3 firms were to be processed. Again the perusal of the aforesaid file shows that para. 19

(vi) of the General Financial Rules, Vol.1 was violated.

79. It is clear from the above that the contract was granted in a surreptitious manner for ulterior considerations by the Prime Minister herself. This conclusion is fortified if reference is made to the history of the grant of reshipment inspection contract in Pakistan. The reason for the grant of this contract is not difficult to see. M/s. S.G.S. Had on 11-3-1994 written to Bomer Finance Inc.

(Exh.P.W.14/104) through Jens Schlegelmilch, a company owned by Asif Ali Zardari that in case it succeeded in procuring for S.G.S. Preshipment inspection contract it shall be paid a commission at the rate of 6% per annum. It. Was on account of this promise that the entire contract was manoeuvred as otherwise from the history of P.S.I. Contractors in Pakistan recounted below the contract could not be granted.

80. It is common ground between the parties that in the year 1992, preshipment contract was granted by the then Government to M/s. Cotecna, which worked for about 15 months but its performance was miserable with the result that the contract was terminated. In the year 1994, the proposal to grant preshipment contract was sought to be revived. However, when the matter went to the President of Pakistan, he wrote the following note, which is Exh . P. W . 12/B: -- "We seem determined not to learn any lesson from our past experience. What is particularly surprising is that of the firms responding to the advertisement, Cotecna, despite our recent experience of their performance and the manner in which they fleeced the country, should have been short listed and are once again under consideration. While our newly adopted creed of privatization may be justified in its own right but At should not result in lack of faith in established and tried institutions--based for the most part on hearsay and without any serious attempt to objectively analyse their performance.

' The President has been pleased to observe further that it appears from the 'Terms of Reference' that the Government plans to hand over almost all the functions of the Customs to a private international firm which include inspection, valuation and clearance of classified imports of various Ministries/Departments of the Government such as Pakistan Atomic Energy Commission, Defence Production Division and other Defence Departments. This would amount to compromising the national security."

81. The matter did not end there. Again when the Caretaker Government took over, a proposal was moved for the grant of the contract. At the time, Mr. Jived Talaat, Secretary Finance opposed it in a very strong wording giving reasons and also history. Though the summary which he prepared for the Prime Minister, Exh.C.M.A.12/C, is a lengthy document but it is useful to reproduce the same:-- "SUMMARY FOR THE PRIME MINISTER ' Subject: HIRING OF THE SERVICES OF A FOREIGN FIRM FOR PRESHIPMENT INSPECTION AND VALUATION OF IMPORTS.

' In a meeting held under the Chairmanship of the Prime Minister on 5th September, 1993, it was decided that hiring of a foreign firm for preshipment inspection of imports, for valuation etc. May be considered immediately for one year, so that customs collections would increase. Chairman, C.B.R. Was also directed by the Prime Minister to study the system of preshipment inspection and valuation personally, examine the proposed system in detail and give his considered views about the system.

(2) The possibility of introducing preshipment inspection and valuation system has been examined in the light of the available material. I have also consulted my colleagues and some other knowledgeable persons. The position that emerges is that in April, 1990 the People's Party Government hired the services of a Swiss Preshipment Inspection Company M/s. Cotecna @ 0.65% of the C&F value of imports payable in US dollars. They were assigned the preshipment inspection and valuation of the major items which were considered prone to under-invoicing e.g. Organic and inorganic chemical, dyes and dye stuff, plastics and plastic products, electrical machinery, auto parts and all imports of plant and machinery. The performance of M/s. Cotecna was reviewed after about 15 months and it was found that M/s. Cotecna had not been able to generate enough additional revenue that could meet even their fees. In fact it was found that the cost of increase in revenues of Rs,100 was about Rs,156.88. As such the cost benefit analysis of the scheme did not suggest further retention of the services of the firm. The agreement with M/s. Cotecna was, therefore, terminated by the Government in November, 1991. M/s. Cotecna later raised several objections regarding the scope of the agreement and against the Customs. A detailed study of the whole episode brings one to the conclusion that M/s. Cotecna had limited potential in terms of organization and resources, and therefore, could not possibly deliver the goods.

(3) In early 1992, the then Government of LJ.I. Again decided to acquire the services of a preshipment inspection company. A tender notice was accordingly floated. Out of the six offers received, M/s. S.G.S, were considered most suitable for Pakistan in view of their vast experience and resources. Accordingly a letter of intent was issued to M/s. S.G.S. An agreement with M/s. S.G.S. Was almost finalised by mid-1992 for acquiring their services against a fee of 0.75% of C&F value of imports to be paid in US dollars. The agreement was, however, not signed for various reasons including objections from the President of Pakistan.

4. The feasibility and merits of preshipment inspection and valuation scheme have been examined in the past by various committees and individuals. A brief review of these reports would be useful at this stage. In 1989, a three-member delegation of the Government of Pakistan visited Indonesia and Singapore to study and evaluate the performance of M/s. S.G.S. In Indonesia. The report of the delegation gives a very detailed analysis of the Indonesian background and the experience in Indonesia. The conclusions of the delegation in brief are:--

(i) On the basis of the study it appeared that there was very little in common between Indonesia and Pakistan for the Indonesian experience with S.G.S. To serve as a guide to a decision.

(ii) It should be possible to design a cost effective package of reforms for Customs Administration, which should include computerization, expansion of Customs Laboratory, facilities, investment in Customs ability to gather market intelligence on valuation and strengthening of internal audit etc

5. A delegation of the private sector consisting of representatives of Federation of Pakistan, Chamber of Commerce and Industry (FPCCI) also visited Indonesia in November, 1992 to study the role and performance of S.G.S. In Indonesia and submitted a report. They recommended that the system of assessm ent and imports as being practised in Indonesia should be immediately adopted. The report was examined in the Finance Division by the then Principal Economic Adviser/Special Secretary (now Governor State Bank of Pakistan) Dr. Muhammad Yaqoob. He concluded that the system was neither cost effective nor viable. This opinion in line with that of Mr. V.A: Jaffery, Advisor to the Prime Minister on Finance, in the People's Party Government.

6. At this stage we have the following two options for consideration:-

(i) If M/s. S.G.S. Are hired, their services will generate additional revenues for the Government.

Different estimates in this regard suggest a cost benefit ratio of 1:2 to 1:3 but the S.G.S. Are not prepared to guarantee any figure. The Customs Department will also continue to perform a number of functions and those officers and staff which are relieved of their existing work in assessm ent and examination of imports could be employed elsewhere. On the basis of the figures of imports during 1992-93 and the exclusions provisionally agreed with M/s. S.G.S. Previously in 1992, the cost of acquiring the services of M/s. S.G.S. At the rate of 0.75% of the C.I.F. Value of imports, is estimated at Rs,170 crores or roughly 56 million Dollars. If a ten per cent. Increase in imports is estimated for 1993-94 this figure would jump to about 62 million dollars.

(ii) The Customs Department has sufficient professional expertise and many good officers and quite a few also honest. Various reforms are also being undertaken by the Department including computerization of imports, exports, payment of duty drawback etc. A major part of computerization has been completed. With some additional reforms and efforts, the department itself can increase the revenue substantially. These reforms would include:--

(a) Introduction of inspection and examination of the containerized cargo by a select team of officers at Karachi through a system of documentary controls and profile department.

(b) Enhancing the scope of Customs Valuation Manual and streamlining the fixation of import trade prices.

(c) Strengthening the internal audit system through computers, computerized clearance of the bill of entry and inventory control of the warehouses.

(d) Manpower development through:--

(i) More intensive training in modern customs technique;

(ii) Computer literacy;

(iii) Induction of a limited number of officers from outside the Customs services:

(iv) Upgrading the posts of appraisers, principal appraisers, recruiting officers afresh for manning these positions and developing a rotation system to minimize the system of collusion; and

(v) Screening of the clearing agents and generally lightening up of administration with a combination of negative and positive incentives.

6(a) This would still not stop the leakages but I expect that given the will and understanding of the Government the revenue should increase substantially. These reforms will obviously require some extra funding. It is estimated that these will cost about Rs,80 million in the year 1993-94. Estimates for 1994-95 will be firmed up later. As these days I am acting as Finance Secretary also, Prime Minister may like to permit me to sanction these funds.

(7) My considered view is that given the cost in the case of the S.G.S. Option, which to say the least is absolutely prohibitive and without any guarantee or even a firm S.G.S. Estimate of additional revenue that could flow, and, further, given a degree of optimism that I do entertain we should clearly opt for later option and close the S.G.S. Chapter.

(8) The proposals in paras. 6(a) and 7 above are submitted for the approval of the Prime Minister."

82. Mr. Moeen Qureshi the Care Taker Prime Minister agreed with Mr. Javed Talat to close the chapter of S.G.S. And decided vide Exh.P.W.12/D that: "I agree that we should do in house exercise at reforming our Customs. Chairman C.B.R. Should be sanctioned additional sources but he must submit a more detailed and tightly worked budget to justify the additional amounts that C.B.R. Needs."

83. It is unfortunate that when respondent No,1 again came into power she ignoring the past history decided to grant the contract for her own benefit. It may be mentioned that at that time respondent No,1 had employed a retired person as Chairman of the Central Board of Revenue on contract and had appointed one of the junior officer as Chief of Customs so as to avoid any opposition.

' In view of the evidence on the record we are inclined to hold that the contract in question was granted to M/s. S.G.S. By the then Prime Minister alone for ulterior motives and the so-called meeting/presentation held in September, 1994 was nothing but an eyewash.

84. Mr, Abdul Hafeez Pirzada has relied upon certain Indian Judgments to contend that as the prosecution has failed to examine all the witnesses cited in the calendar of witnesses especially Mr. Javed Talat and Mr. V.A. Jaffri, an adverse presumption should be drawn against them. The contention raised runs counter to the law declared by the Supreme Court in Khushi Muhammad v.

The State (1983 SCMR 697) wherein their Lordships were pleased to rule that production of the each and every witness mentioned in the calendar of witnesses was incumbent upon the prosecution and prosecution can drop or not examine any witness it does not consider necessary.

85. Mr. Ali Sibtain Fazli, the learned Special Prosecutor has submitted that as his case was primarily based upon the statements of the witnesses produced in the cases and the documents adduced, his case stood proved and therefore, it was not necessary for him to examine two witnesses, one of whom in any case has gone out of Pakistan.

86. On 11-3-1994, there was an agreement between S.G.S. And Bomer Finance Inc., a company wholly owned by Asif Ali Zardari, to the effect that should Bomer Finance Inc. Be able to secure a contract from the Government of Pakistan for the preshipment inspection, then they would pay to Bomer Finance Inc. a consultancy fee corresponding to 6% of the total amounts paid to and effectively received by S.G.S. From the Government of Pakistan in accordance with the terms of the said contract. This document is Exh.P.W.14/104. The fact that Mr. Asif Ali Zardari, the accused No,2, is owner of Bomer Finance Inc. Is manifest from the Exh.P.W.14/32 the Mandate Agreement showing him to be the absolute owner and appointing Jens Schlegelmilch as his agent. The certificate of incorporation of Bomer Finance Inc. And is Exhs.P.W.14/320-A and P.W.14/322-B. These facts are also established from the documents which form part of the Letters of Rogatory sent by the Judge Daniel Devaud from Switzerland. A mere perusal of the documents that accompanied the Letters of Rogatory with particular reference to Exhs.P.W.14/225 and 255-A, P.W.14/256. 256-A, 267, 257, 257-A, P.W.14/262, P.W.14/276, 278, 284, 290, 296, 306, 308 and 314, clearly demonstrate the following:

87. The document Exh.P.W.14/255, translation of which is Exh.P,W,14/255-A. Is a letter of Jens Schlegelmilch addressed to S.G.S dated 28-4-1995. This letter is on the subject of contract between S.G.S. And the Government of Pakistan and by means of this letter. Two honorarium notes for the period from 1-1-1995 to 31-3-1995 of each of the beneficiaries of the contract were forwarded to S.G.S.. The letter requested S.G.S. To credit due amounts in the respective accounts while referring to the period they correspond to. This letter is signed by Jens Schlegelmilch. It may be once again mentioned over here that the two beneficiaries of the contract mentioned in this letter are Bomer Finance Inc. And Jens Schlegelmilch himself. Their letters of contract are both, dated 11-3-1994 Exh.P.W.14/104 and Exh.P.W.14/156 respectively. The two honorarium notes are Exhs.P.W.14/256 and P.W.14/257. Their translations are Exh.P.W.14/256-A and Exh.P.W.14/257-A, Exh.14/256-A is on the letter head of Jens Schlegelmilch and raises an invoice for provision of services according to the contract, dated 29-9-1994 with Pakistan, according to the agreement of 11-3-1994 for the period from 1-1-1995 to 31-3-1995, this document clearly spells out the amount claimed as US $ 18,948.15.

This is 1% commission for Jens Schlegelmilch himself under his contract of 11-3-1994 Exh.P.W. The second honorarium note is P.W.14/257 whereof translation is Exh.P.W.14/257-A. This is on the letter head of Bomer Finance Inc. And raises in similar language the invoice for the provision of services according to the contract 29-9-1994 with Pakistan, according to the agreement of 11-3-1994 to the same period of 1-1-1995 to 31-3-1995. This document again clearly mentions the amount demanded as US $18,94,813.55 whereof 6% was US $113,688.90. Request is made that this amount be transferred to A/c. No,522.343 UK at Union De Banque Swiss. Both these honorarium notes alongwith the covering letter, Exh.P.W.14/255, proves the agreement, dated 11-3-1994 Exh.P.W.14/104 for commission between Bomer Finance Inc. And S. G. S .

88. Another important document which accompanied the letter of Rogatory is Exh.P.W.14/262 along with statement of account Exh.P.W.14/263. This is a letter from S.G.S. To Jens Schlegelmilch on the subject of Pakistan fees and attached to the same is a statement showing S.G.S.'s invoicing to date.

In this letter it is mentioned that as soon as S.G.S. Receive their payment, S.G.S. Proposed making a payment of US $56,735.40 and US $340, 412.42 as 1% and 6% of the total amount received from the Government of Pakistan for May, June, 1995. The first amount of US $56,735.40 is mentioned in Exhs.P.W.14/264 and 265. Exh.P.W.14/264 is a payment order which shows the said amount of US $56,735.40 in the left corner, it further mentions the name of the beneficiary as Jens Schlegelmilch.

Exh.P.W.14/265- is a payment order from S.G.S. To Union De Banques Swiss in Geneva. The said amount is reflected as the .Amount to be paid in favour of Jens Schlegelmilch. Likewise an amount of US $340,412.42 was ordered to be paid to Bomer Finance Inc. In Account No,552.343 vide Exh.P.W.14/266 and Exh.P.W.14/267.

89. The other documents attached to this letter is a statement of accounts Exh.P.W.14/263. It mentions that payments of US $ 15,645.479 and US $93,872.82 were earlier paid on 24-5-1995 as 1% and 6% kickback and commission in the accounts of Jens Schlegelmilch and Bomer Finance Inc.

Respectively. The payment orders of these amounts are Exh.P.W.14/258. Exh.P.W.14/259 for US $15,645.47 while Exh.P.W.14/260 and Exh.P.W.14/261 for US $93,872.82. These documents reflect the payment in the same manner as shown in the previous set of documents.

90. The next documents reflecting the Pakistan fee is Exh.P.W.14/276 and which is a covering letters to a statement of fee Exh.P.W.14/277 showing invoicing of S.G.S. To date i,e, 25-11-1995. It is mentioned therein that a request for transfer of US $124,200.51 and US $745,203.08 has been made.

The first amount is ordered for payment vide Exh.P.W.14/268 and its payment order to U.B.S. Is P.

W.14/269. Both these documents clearly state that the amount to be paid in the name of the beneficiary i,e, Jens Schlegelmilch. As far as other payment of US $745,203.68 is concerned, the order of payment is Exh.P.W.14/270 and Exh.P.W.14/271. These documents reflect the payment of US $745,302.08 in favour of Bomer Finance Inc. In Account No,552.343.60-C, being the 6% of the fee.

The statement of fee Exh.P.W.14/277 mentioned in Exh.P.W.14/262 was paid on 9-8-1995.

91. The next document is Exh.P.W.14/278 which is again a covering letter of S.G.S. On the subject of Pakistan fee and mentions request for transfer of US $60,666.89 and US $364,000.36. With this is a statement of account, Exh.P.W.14/279 which shows that the amounts mentioned in this para. At the bottom as being the 1% and 6% fee payable. The amount of US $60,666.89 was subsequently paid through documents Exh.P.W.14/280 and Exh.P.W.14/281 while the 6% fee of Bomer of Finance Inc. Was amounting to US $364,000.36, payment of which was reflected in the document Exhs.P.W.14/282 and 283. The Statement of Account Exh.P.W.14/279 shows that amounts mentioned in Exh.P.W.14/276 were being paid on 30-11-1995.

92. Same is the case with the Exh.P.W.14/284 which is covering letter from S.G.S. Requesting transfer of US $73,574.35 and US $441,284.07 to which is attached a statement of fee Exh.P.W.14/285 showing the said amount has been payable. These amounts were then paid and reflected in documents bearing Exhs.P.W.14/286, P.W.14/287, P.W.14/288 and P.W.14/289 respectively. This Statement Exh.P.W.14/285 also shows that payment of amount mentioned in Exh.P.W.14/278 on 31-1-1996.

93. Same is the case with the covering letter Exh.P.W.14/290 of S.G.S. On the subject of Pakistan fees.

This shows that request has been made for the transfer of US $56,499.52 and US $338,997.13 to which is attached a statement of fees Exh.P.W.14/291 in which these amounts are reflected as payable. These amounts were subsequently paid as shown in Exhs.P.W.14/292, P.W.14/293 for US $50,499.50 and reflected in P.W.14/294 P.W.14/295, for US $338,997.13 being the 1% and 6% of fee in favour of Jens Schlegelmilch and Bomer Finance Inc. The Statement Exh.P.W.14/291 also shows the payment of amounts mentioned in Exh.P.W.14/284 on 3-6-1996.

94. Same is the case with the covering letter Exh.P.W.14/296 in which it is mentioned that request for payment of US $40,691.29 and US $244,147.72 has been made. These amounts mentioned in the statement of fee Exh.P.W.14/297 and subsequently paid as shown in P.W.14/298, P.W.14/299, P,W.14/300 and P.W.14/301 respectively. The Statement Exh.P.W.14/297 shows payment of amount mentioned in Exh.P.W.14/290 on 3-6-1996.

95. Another covering letter is P.W.14/306 of S.G.S. On the subject of Pakistan fee. In this letter a request has been made for transfer of US $145.007.63 and US $870,045.77. To this covering letter, is also attached a statement of account bearing P.W.14/307 in which these amounts are reflected as payable which subsequently were paid as shown in P.W.14/302, P.W.14/303, P.W.14/304 and P.W.14/305 respectively. The Statement Exh.P.W.14/307 also shows payment of amounts mentioned in Exh.P.W.I4/296 being paid on 11-9-1996. All these statements of fee also show the previous payments as having been made.

96. The next document is P.W.14/308, another covering letter. Likewise P.W.13/314, it is also a covering letter which reflect payments to be transferred with the statement of account that the amounts should be paid which were subsequently paid through documents in the ease of US $45,354.27 shown in Exh.P.W.14/308. The payments are shown in Exhs.P.W.14/310 and 311 that the amount of US $278,125.60 is paid as shown in Exhs.P.W.14/312, P.W.14/313 and P.W,14/314. The amounts mentioned in P.W.14/314 of US $106,460.61 was paid as shown in P.W.14/316 and 317 while the amount of US $638,763.67 was paid as reflected in P.W.14/318 and 319 respectively. Previous amounts as per Exh.P.W.14/306, Exh.P.W.14/308 were shown to be paid by the above statements Exh.P.W.I4/309 and Exh.P.W.14/315.

97. A number of these documents bearing the signatures of Hens Fischer and these signature of Hens Fischer, as shown in Exh.P.W.14/104, Exh.P.W.14/156, can be compared with the proven signatures of Hens Fischer on the contract signed by him with the Government of Pakistan Exh.P.W.14/9/A/3. These signatures were proven through statement of Mr. Mumtaz Ali who is also witness to the said contract. The comparison can be done under Article 84 of the Qanun-e- Shahadat Order, 1984.

98. These documents prove beyond the shadow of any reasonable doubt that there was an agreement with the S.G.S. And Bomer Finance Inc., a company operated by Jens Schlegelmilch, a Swiss lawyer, to the effect that S.G.S. Would be paying 6% commission to Bomer Finance Inc. For the procurement of the contract in their favour by the Government of Pakistan.

99. The crucial document that links Asif Ali Zardari accused No,2 to the Bomer Finance Inc. Is the Form-A, Exh.A. This form had been forwarded by the Judge Daniel Devaud from Switzerland. This is an account opening form of Bomer Finance Inc. With the bank in Switzerland and shows the name of the beneficiary of Bomer Finance Inc. To be Asif Ali Zardari of Bilawal House, Karachi. This document absolutely links the entire case to the accused persons The faxed copy has been received by Berne Police from the Judge Daneil Devaud and that the copy was then certified by the Pakistan Embassy was sent to Pakistan and was filed before this Honourable Court. However, subsequently the original certified copy by Judge Daniel Devaud was received by the Berne Police which in turn was again certified by the Pakistan Embassy and was then sent to Pakistan and was produced in evidence by Mr. Tariq Pervaiz, P. W.15. It has been argued by the defence that there is some discrepancy in replacement of certificate in the copy that was filed along with the application and in the document that was subsequently produced in evidence. The explanation for the difference is clear from the narration of the above facts.

100. There were certain rogatory proceedings which are mentioned in the statement of Mr. Hassan Wasim Afzal as to how the Attorney-General for Pakistan had requested the Berne Police for mutual assistance and forwarded certain documents on the basis of which blocking of the accounts of the accused, their friends and their off-shores companies were blocked. There has been no cross- examination on his statement in this context. Therefore, this part of the statement stands proved.

Coming to the Letter of Rogatory, Exhs.P.W.14/153 and 154, it contains facts of the case as determined by Judge Daniel Devaud on the basis of evidence procured by him. It also contains documents which bear Marks B, C and D. These documents show as to how the judgment had obtained the documents accompanying the Letter of Rogatory from various resources. In particular, he mentioned the set of jewellery, photographs of which as Mark D and another photograph of same accompanied the Letter of Rogatory and was admitted as Exh.P.W.14/165. This set has a total worth of UK Pounds 117,000 out of which UK Pounds 92,000 were paid through debit advice of U.B.S. Bank Account No,552.343 being the same of Bomer Finance Inc. This advice is Exh.P.W.14/164.

101. It has been stated that in the Letter of Rogatory by Judge Daniel Devaud that the said account was at the free disposal of Mohtarama Benazir Bhutto. It also reveals that there is another agreement between the Cotecna acting on behalf of S.G.S. And Nassam Overseas, another off- shore company Exh.P.W.14/183.

102. All off-shore companies were operated by Jens Schlegelmilch as an agent. The said Jens Schlegelmilch visited Pakistan at various occasions and at times stayed at Marriott Hotel, Islamabad. The file of Mariott Hotel has been produced in evidence, showing that he did stay at the said Hotel on three different occasions in the year 1994 and that one of his bills was also paid from the funds of the Prime Minister Secretariat as reflected in the document Exhs.PD, PD/1 and PD/2 under the head of accounts "59600-persons summoned by the Prime Minister". This document was proved through Mr. Ahmad Sadiq, who appeared as P.W.5. There is no cross-examination on Mr. Ahmed Sadiq regarding the proof of the said document.

103. Dr. Z. Babar Awan, Advocate contended that Mr. Jens Schlegelmilch had not come to Pakistan and the record in this behalf is forged. This argument has no force. Mr. Saglain Shah, Inspector Security had appeared as P.W.1 and had produced the record of the visitors to the Prime Minister House relating to the period from 8-5-1995 to 30-5-1995. Dr. Z. Babar Awan pointed out that Saqlain Shah was not the author of this record. This is true but Saqlain Shah had stated that he checked the record after 2 or 3 days and forwarded it to the relevant quarters. The documents Exh.P.1 is indeed a forwarding letter signed by Saqlain Shah. It is true that in the record the name of the visitor has been mentioned as but that appears to be on account of the person making entries to be unfamiliar with the foreign name like Jens Schlegelmilch.

104. However, the more important evidence in this behalf is available in form of statement of Syed Wasim Ahmad, P.W.2, who is the Room Reservation Manager, .Marriott Hotel, Islamabad, who with the help of his record categorically stated that Mr. Jens Schlegelmilch had stayed in Marriott Hotel from 1-8-1994 to 3-8-1994, then from 6-8-1994 to 11-8-1994 and lastly from 30-9-1994 to 3-10-1994.

The witness also produced the register of arrival and departure.. There is no reason whatsoever to doubt the testimony of the Room Reservation Manager of the Marriott Hotel, Islamabad who is totally disinterested person. It is also to be seen that Mr. Jens Schlegelmilch had stayed in the Marriott. Hotel as a guest of the Prime Minister and the bill was paid out of the funds of the Prime Minister's Secretariat as has been explained by. Mr. Ahmad Sadly, P.W.5 who has also produced original documents Exh.PD/2 which shows that an amount of Rs,6,968 was sanctioned by him for payment to Marriott Hotel, Islamabad as a guest of Prime Minister from 3-8-1994. The record also contains the original bills and chits signed by Mr. Jens Schlegelmilch.

105. Even the terms of the contract, dated, 29-9-1994 are against the established principles regarding the preshipment inspection. It has been stated by the Law Ministry in its opinion Exh.P.W.14/28 that all over the world, P.S.I. Contracts are given on F.O.B. Basis, while the contract granted to S.G.S. In the interest case was on the dutiable values. This not only caused huge losses to the Government of Pakistan but also increased the fee paid by the Government of Pakistan to S.G.S. As well as the kickbacks and commission received by the accused. The intention of the accused for giving this contract on dutiable values was to increase their own commission and kickback. Mr. Iftikhar Qutab also supported this contention in his testimony as P, W.13. Even the contract of 1990 as well as draft contract of 1992 were on F.O.B. Basis and not on dutiable 'values.

The prosecution had produced a detailed comparison chart of the three contracts which is on the record.

106, From the record, it clearly appears that Mr. Asif Ali Zardari had shown an unusal interest in the working and operation of P.S.I. Companies in Pakistan and even chaired the meeting regarding these companies. Reference in this re,gard is made to Exhs.P.E, P/F and P/G. This fact is further proved by the testimony' of Mr. Riaz Naqvi, P.W.11.

107. There is no infirmity in the charge framed by this Court as alleged by Mr. Pirzada. Mr. Zardari was no doubt a Member of the National Assembly at the relevant time but he is not being tried as such. On the other hand, case of the prosecution is that the contract was procured from the Prime Minister by Mr. Zardari through the use of his influence for his own benefit and also for that of the Prime Minister. These actions clearly, constitute offences of corruption and corrupt practices as defined by section 3 of the Ehtesab Act, 1.997.

108. Another point argued by Mr. Pirzada was that according to the certificate produced on the record as Exh.P.W.14/321 Bomer Finance was incorporated on 25-4-1991 at which time Mr. Zardari was in Jail according to the statement of D.W.1, Mr. Nawaz Hussain Superintendent, Landhi Jail, Karachi and as such the allegation that he had opened the off-shore company was wrong.

However, it has been explained by Jens Schlegelmilch in his statement before Judge Daniel Devaud Exh.P.W.14/162-A, that originally the Bomer Finance was incorporated at the request of a Russian Client who later on ran away and the interest was acquired by Mr. Zardari subsequently, Jens Schlegelmilch has further stated that it was in 1994 that money came into the company.

109. It may be stated that the request of the defence that original record of Reference NoN26 of 1998 was summoned and original documents filed therein were available to the 'defence for the purposes of cross-examination of the witnesses.

110. From the above discussion of the evidence produced before this Court, it can clearly be seen that:--

(1) The contract to S.G.S. Was awarded by the Prime Minister and not by the Cabinet or any of its committees.

( ) The presentation was merely an eyewash. The only points for discussion at the presentation as well as before the Customs Authorities in their meetings with the P.S.I. Companies, are regarding the fee and duration of the contract and the grant of the contract was never a subject of any proceedings or meeting or presentation.

(3) The grant of contract was violative of the rules.

(4) That no tender for the grant of the said contract was ever invited and the contract was granted to the handpicked company.

(5) That the contract was granted despite opposition of the President of Pakistan, Finance Division and even the earlier opinions of Revenue Department.

(6) That Mr. Asif Ali Zardari had shown great interest in the working Of the P.S.I. Company and had also chaired the meetings regarding the said company despite the fact that he did not have any authority in this regard.

111. The. Aforesaid makes it clear and obvious that accused No,1 awarded the contract illegally and in abuse of her position and in violation of rules and such award suffers from obvious malice. The sole motive for award of contract was that in lieu of grant of such contract commission and kickbacks would be paid. Such kic backs and commission were in fact paid by S.G.S. And received by the accused in the accounts of Bonier Finance Inc. Of which accused No,2, the spouse of accused No,1, was the beneficial owner. Such amounts were utilized and were at the disposal of both the accused Nos.1 and 2.

112. In view of what has been stated above application under section 476, Cr.P.C. Moved by Mohtarama Benazir Bhutto and application under section 365-K, Cr.P.C. Filed by Mr. Asif Ali Zardari are found to be without any Merit and are dismissed.

113. Both accused-respondents are held guilty of having committed corruption and corrupt practices within the meaning of sections 3(l)(a), 3(1)(d) and 4(2) of the Ehtesab Act, 1997. They are accordingly convicted and sentenced to undergo 5 years' imprisonment each and to pay a fine of US $8.6 millions each or equivalent amount in the Pakistani currency. They are further disqualified from holding any public office under section 9 of the Ehtesab Act, 1997. The amount of 8.6. Millions USS as aforesaid or the properties acquired from the aforesaid amount as also the necklace shall stand confiscated to the State.

' The above furnishes the details reasons for our short order, dated 15-4-1999 (date wrongly typed as 14-4-1999 due to typographical error and corrected as 15-4-1999).

THE END