' It is proposed to decide Criminal Miscellaneous No,71 of 1998 in ' Ehtesab Reference No,26 of 1998, Criminal Miscellaneous No,51 of 1998 in Ehtesab Reference No,27 of 1998 and Criminal Miscellaneous No,9 of 1998 in Ehtesab Reference No,29 of 1998 by the single order, as the legal and factual controversy is practically the same.
2. These applications have been moved by Mrs. Benazir Bhutto and her spouse, who are accused in the aforementioned references. Ch. Aitzaz Ahsan, Advocate, argued Criminal Miscellaneous No,9 of 1998 in Ehtesab Reference No,29 of 1998 while other Criminal Miscellaneous No,71 of 1998 in Ehtesab Reference No,26 of 1998 was argued by Mian Abdus Sattar Najam, Advocate and Asif Ali Zardari, sole accused in Ehtesab Reference No,27 of 1998, argued Criminal Miscellaneous No,51 of 1998 moved by him.
3. Ch. Aitzaz Ahsan, Advocate contended that the reference was to be made by the learned Chief Ehtesab Commissioner as per provisions of section 15(1) read with section 10 of the Ehtesab Act, 1997 (hereinafter to be referred as Act of 1997) but the present reference (Ehtesab Reference No,29 of 1998) was not made by the learned Chief Ehtesab Commissioner and was directly sent by the Ehtesab Bureau to this Court. It was argued that the Government business including launching of prosecution is to be made in accordance with the Rules of Business, 1973, framed under Article 99 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as Constitution of 1973). It was submitted that as per Rule 3(1) read with Serial No,19 of the Schedule, the administrative department for Anti-Corruption Laws was the Interior Division, whereas decision regarding the institution of legal proceedings was to be taken by Law and Justice Division, Government of Pakistan vide Rules (ibid). It was argued that Ordinance II of 1998 came into force on 4-2-1998 and lapsed on 3-6-1998 after 120 days as per provisions of Articles 89 of the Constitution of 1973 while process was issued in this case to the accused on 2-7-1998. It was fort ier argued that the President, Governor, Prime Minister, Federal Minister and other Ministers are not answerable to any Court for exercise of powers and performance of functions of their respective offices. In this behalf reference was made to Article 248 read with Article 173(4) to contend that these references are ultra vires of the Constitution. To support this point, reliance was placed on Ch. Zahoor Ilahi, M.N.A. v. Mr. Zulfiqar Ali Bhutto and 2 others PLD 1975 SC 383 and Aman Ullah Khan and others v. The Federal Government of Pakistan and others PLD 1990 SC 1092. It was added that this protection was available under the 195( and 1962 Constitutions as well as under the Government of India Act, 1935. It was argued that the word "immunity" means "absolve, clear of, excuse". It was further urged that the prosecution has appended photocopies of the documents along with the reference instead or original documents, which are per se inadmissible. It was also added that the challah is not an admissible document in view of the judgment of Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550. He further contended that this Court has been established under the Constitution of 1973, therefore, it may take notice that the Ehtesab Act is being applied only to the present accused and not others. It was alleged that section 3 of the Act of 1997 dealt with "Corruption and Corrupt Practices" which have been divided into six categories but none is applicable to the present accused. Further, that there is nothing on record to show that the inquiry was held by the Ehtesab Bureau on the orders of the learned Chief Ehtesab Commissioner.
' Ch. Aitzaz Ahsan, Advocate, contended that the Act of 1997 prescribed detailed procedure for different stages of a case namely, investigation, report and cognizance. It was added that the powers of the learned Chief Ehtesab Commissioner could be invoked in accordance with section 15 of the Act of 1997. Hence the learned Chief Ehtesab Commissioner is to take cognizance either on a reference from "appropriate Government" or upon a complaint or on his own information. Further contended that the executive authority of the Federation vested in President and shall be exercised either directly or through officers subordinate to him in accordance with the provisions of Articles 90 and 99 of the Constitution of 1973. It was added that the President has made Rules of Business, 1973 for allocation and transaction of the business of Federal Government. While referring to Rule 2(6) and (11); Rule 3(3) read with Schedule II and Rule 4, it was contended that the reference must come from the proper Ministry or Division and not from any other source. According to the aforesaid Schedule and as per Item 18, Serial No,34 Anti-Corruption Laws were the subject of Interior Division while according to Item 21, Serial No,7 legal proceedings concerning the Federal Government were subject of Law and Justice, Human Rights and Parliamentary Affairs Division. In this behalf, reference was also made to sections 3, 4, 13 and 15 of the Act of 1997 to contend that the "appropriate Government" in the present case was the Interior Division, which was the only competent Authority under the Rules of Business, 1973 to make reference under question and none else. Hence the reference having been made by the incompetent authority, has no legal sanctity in the eye of law; and this Court cannot take cognizance of the case nor can proceed with the trial.
Beside, there is allegedly no complaint in the case for the initiation of proceedings in the reference.
It was contended, as per section 15(4) of the Act of 1997, the report of the Ehtesab Cell is to be treated as F.I.R. But the same has not been supplied, therefore, the charge cannot be framed till copy is supplied as per provisions contained in section 265-C of Cr.P.C.
4. Mian Abdus Sattar Najam, Advocate argued that the Act of 1997 is still borne, being in conflict with Article 12 of the Constitution of 1973 as it provided for retrospective punishment for the offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for the said offence at the time, it was committed. It was alleged that the imposition of fine and forfeiture of the property acquired as a result of "Corruption and Corrupt Practices" was not actionable under the P.O. 16 and P.O. 17 but it has been made so under the Act of 1997. Similarly, there was no provision for freezing of the properties and the provisions as to the bail are also very strict than the previous law in field. It was argued that no one could be preceded retrospectively especially When legislation covering the alleged offence was already in field. It was argued that the Presidential Orders referred to above being law in force became applicable, the moment the offence was committed.
In this behalf, reference was made to Article 264(b) of the Constitution of 1973. It was maintained that the Act of 1997 came in force on 31-5-1997 and through this, P.Os. 16 and 17 were repealed.
Thereafter, the learned counsel referred to Articles 81, 12, 23, 173, 248 and 89. It was argued that the proceedings in the reference came to an end with the lapse of Ordinance II of 1998. It was urged that the provisions as to freezing of the properties and as lets before conviction were violate of Article 23 of the Constitution of 1973.1t was added that the citizens have right to acquire property and to make contracts. In this behalf, reference was made to Articles 173 of the Constitution. It was argued that it is a question of interpretation and scope of Article 248 of the Constitution of 1973. It was submitted that the Ordinance is temporary legislation as per provisions of Article 89 and the pending proceedings lapsed with its expiry.
' The learned counsel further argued that the supplementary reference could not be looked into and taken into consideration by this Court. He referred to the letters of the learned Chief Ehtesab Commissioner dated 25-2-1998 at pages 1 and 47. It was argued that the report of the Inquiry Officer appended with the reference has no legal value. The learned Chief Ehtesab Commissioner could come to his own findings after receiving the report of the Inquiry Officer. In this behalf, reference was made to subsections (2), (3) and (6) of section 15 of the Act of 1997. It was argued that as per subsection (2) there were only three sources for the learned Chief Ehtesab Commissioner to take cognizance and none else. It was contended that as per subsection (1) the Court could take cognizance only if reference was made by the learned Chief Ehtesab Commissioner. There was no evidence on record to show sending of the matter to the Ehtesab Bureau. It was argued with reference to paras. 3, 4, 5, 6, 7, 9, 10 and 11 of the report of Inquiry Officer (Investigating Officer) that it was his own finding as was clear from the text of the report.
5. The arguments in these petitions continued for days. Ch. Aitzaz Ahsan, Advocate on 12-10-1998 submitted that he would be introducing totally a new argument to the effect that there was no mention whatsoever either in the reference by the learned Chi Ehtesab Commissioner or in the report of the Investigating Officer that the reference was made on the complaint, therefore, it would be presumed that it was on the move of the Government and has to be through appropriate Government. It was argued that the order dated 20-8-1998 of this Bench in Criminal Miscellaneous No,43 of 1998 in Ehtesab Reference No,26 of 1998 was without fully hearing the petitioner. It was added that the judgments referred to in the said order are in civil cases and reported as Bashir Ahmad and others v. The Collector, Multan PLD 1962 (W.P.) Lah. 292, Government of West Pakistan (now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jhan and others PLD 1981 SC 516, S. Attar Singh R.S. Sardar Hira Singh v. Secretary of State AIR 1940 Pesh. 35 and Sri Venkateswa r aswa mi Varu, Bezwada by Trustees Rampilla Appalaswami and another v.
Sub-Collector Pezwada and another AIR 1943 Mad.
327. These were the land acquisition matters while case reported as Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan and others PLD 1969 Lah. 602 was an election matter, therefore, the same were not relevant to the points raised in a criminal case. It was argued that the civil and criminal matter are two different species as in the criminal case the matter is between the State aid accused while in civil two sides litigate; the end result of criminal trial was punishment or acquittal while in civil suit it was merely an adjudication of rights of a person or a property and the other main distinction was that in criminal case standard of proof was very strict while in the civil case it was balance of probabilities. It was maintained that principles of C.P.C. Were not applicable to the criminal trials at any stage. In this behalf, reliance was placed on Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 and for that reason the judgments in civil matters were not relevant and applicable to the present application. It was, therefore, maintained that the Court could go behind the reference. It was argued that the copies of all the documents mentioned in section 265-C of Cr.P.C. Is the right of the accused to be supplied to her. There was no F.I.R. On record and the same is to be placed on record and copy supplied thereof, therefore, the charge cannot be framed. It was argued that the accused was not made to joint investigation, therefore, there was no proper investigation. It was alleged that the case against the petitioner was mala fide.
6. Mian Abdus Sattar Najam, Advocate, argued that there was no material on record to prove the allegations and no evidence except documents sent by the learned Chief Ehtesab Commissioner. It was added that the jurisdiction to initiate proceedings was conferred on the learned Chief Ehtesab Commissioner under section 15(3) of the Act of 1997. It was added that it was subject to his opinion.
The Ehtesab Cell was simply to investigate an offence alleged to have been committed and submit a report to the learned Chief Ehtesab Commissioner and could not go beyond it. It was argued that the report was to be submitted within one month as per provisions of section 15(5) of the Act of 1997. It was added that after the lapse of Ordinance II of 1998, section 16 was revived as it was, therefore, the report of the Investigating Officer was to be treated as First Information Report. There was no investigation, whatsoever, after the report was submitted to the learned Chief Ehtesab Commissioner. It was argued that in the report the word throughout used was Ehtesab Cell and not Ehtesab Bureau. This way the provisions of Ordinance II of 1998 were ignored altogether. The report of Investigating Officer was F.I.R. And could not be treated as challah (report under section 173, Cr.P.C., therefore, reference to this Court was without jurisdiction. It was argued that the supplementary challah was prepared on 26-6-1998 and it was not possible to conceive that same reached this Court on 29-6-1998, although 28-6-1998 was Sunday. The documents appended with the same could not be looked into. It was added that the same was not sent by the learned Chief Ehtesab Commissioner, therefore, it was to be treated as nullity and non-existent. It was argued that sections 10, 13, 15(1), 16 and 20 of the Act of 1997 were to be read together and in harmony. It was added that the cumulative result of these provisions would be that the learned Chief Ehtesab Commissioner had to hold inquiry. The calling of the report was only an internal matter and of no legal consequence. It was added that Article 12 of the Constitution of 1973 could not be ignored.
There could not be multiple legislation on a point and liability enhanced. It was argued that the Ordinance was a temporary legislation and it ipso facto terminated. In this behalf, reference was made to Government of Punjab v. Zia Ullah Khan and 2 others 1992 SCMR 602, Muhammad Arif and another v. The State and another 1993 SCMR 1589 and Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738. It was argued that the original reference dated 25-2-1998 was not made by the learned Chief Ehtesab Commissioner and forwarding of documents did not amount to making of reference. It was added that section 15(1) was couched in negative imperative. 'It was maintained that the documents sent on 26-6-1998 could not be treated as supplementary challan.
It was argued that the F.I.R. Was not enclosed with the challan and supplied to the petitioner. The report of the Investigating Officer could be termed as report under section 173, Cr.P.C. It was maintained that there was no time at the disposal of the learned Chief Ehtesab Commissioner to investigate the matter after receipt of the report dated 26-6-1998, therefore, whole proceedings were illegal. It was argued that the charge could not be framed without first examining the evidence. In this behalf, reliance was placed on The State v. Aftab Ahmad Khan Sherpao and another 1998 MLD 209. It was argued that it was a case of double jeopardy, therefore, action was illegal. In this behalf, .Reference was made to Article 13 of the Constitution of 1973, section 26 of the General Clauses Act, section 403 of Cr.P.C. The reliance was placed on State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
7. We have also heard the petitioner (Asif Ali Zardari) who preferred to argue the petition himself.
He also submitted a written statement (pages 1 to 13) with supporting documents to show that the properties mentioned therein were acquired by him through lawful means and were reflected in the relevant Income Tax and Wealth Tax Returns and as such could not validly form part of the charge. He further submitted that the properties mentioned in the written statement by no means were disproportionate to his lawful means. He alleged that he was cited as accused in these references as well as in many criminal cases only to tarnish his political image. He alleged that the whole exercise is illegal and mala fide. It was added that there could be no criminal prosecution for the FEBCs. It was added that he has already been prosecuted as far as the Duty Free business was concerned. He was acquitted by the learned Special Judge (Offence in Banks), Karachi while the revision against the acquittal was dismissed by the learned Division Bench of Sindh High Court, Karachi vide judgment, dated 19-9-1994, therefore, he could not be vexed twice for the same offence on the principle of double jeopardy. It was argued with reference to the properties mentioned in the written statement that if it was shown that the allegations of the prosecution were incorrect in respect of these properties then charge should be thrown out as a whole in respect of all the properties. It was added that the law is oppressive as he cannot move for change of investigation from Ehtesab Cell to any other Agency like any other criminal case.
8. On the other hand, Sh. Zia Ullah, learned Special Prosecutor in Ehtesab Reference No,29 of 1998 argued that the proceedings in reference were initiated on the basis of the complaint received by the learned Chief Ehtesab Commissioner. The copy of the same has been placed on record on 6- 10-1998 and copy also supplied to Mian Abdus Sattar Najani, Advocate who was appearing that day in the absence of Ch. Aitzaz Ahsan, Advocate but he refused to receive the same. However, this copy was supplied to the learned counsel for the accused on 13-10-1998. It was argued that the Act of 1997 is a special Act and the forum has been provided for trial of Corruption and Corrupt Practices. It was urged that section 15 of the Act of 1997 was to be read with section 2(b)(g) of the said Act. The term appropriate Government was just to make distinction between the Provincial and Federal Government. It was argued with reference to section 15(6) that the Act had provided special procedure and mechanism for the offences covered by it. It was argued that the learned chief Ehtesab Commissioner made the reference correctly after coming to the conclusion that prima facie a case was made out. It was added with reference to section 20 that the scheme of the Act was to keep the learned Chief Ehtesab Commissioner and Ehtesab Cell independent from interference of any Government Department. It was added that the law had been held valid. In this behalf, reference was made to the judgment, dated 26-3-1998 in Writ Petition No,112 of 1997 of the learned Full Bench of this Court. It was argued that the Rules of Business, 1973 cannot override the provisions of a statute. It was added that the Act of 1997 being later in time and special law was to take precedence over other laws covering the field. It was argued that the Ehtesab Bureau was itself a Government Department, therefore, the argument that the Ehtesab Cell could not make the reference to the learned Chief Ehtesab Commissioner was without any merit. In this behalf, reference was also made to section 2(g). It was argued that the F.I.R. Was not indispensable in each and every case because its purpose was to set machinery in motion for punitive action. In this behalf, reference was made to Emperor v. Khawaja Nazir Ahmad AIR (32) 1945 PC 18, Ram Deo Singh and others v. The State AIR 1959 All. 511 and A.W. Khan v. The State AIR 1962 Cal.
641. It was argued with reference to section 537, Cr.P.C. That alleged irregularities in the investigation did not vitiate the trial by a competent Court of law. In this behalf, reliance was placed on Salah-ud-Din v. The Crown PLD 1956 Lah. 87, H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196 and The Crown v. Nur Alam PLD 1955 Lah.
667. It was argued that the purpose of the investigation was simply to collect evidence while guilt or innocence of the accused was to be decided by the Co it on the basis of the evidence on record.
It was added that the investigation was conducted by Ehtesab Cell and not by the learned Chief Ehtesab Commissioner. In this behalf, reference was made to section 156, Cr.P.C. It was argued that in case of inconsistency between the provisions contained in Cr.P.C. As well as with any other law and the Act of 1997, the provisions of the Act shall prevail in view of section 12 of the Act. It was added in this behalf that even otherwise the Cr.P.C. Applies mutatis mutandis to the proceedings under the Act of 1997. Neither there was any procedure prescribed for making reference nor any particular forum was prescribed by the Act. The reference was made by the learned Chief Ehtesab Commissioner and that was sufficient compliance of the section 15(1) of the Act of 1997. It was argued that Ordinance II of 1998 was a valid legislation and all acts done, steps taken, orders passed during the time it remained in force, would be valid. In this behalf, reference was made to Articles 89 and 264 of the Constitution of 1973 and reliance was placed on Zia Ullah Khan and 2 others (supra) and Muhammad Arif and another (supra). It was argued that the anxiety of the accused seemed to be only to prolong the trial otherwise as far Act was concerned that remained in force throughout, therefore, it was absolutely legal and perfect reference. It was urged that copy of the F.I.R. i,e, reference made on complaint by the learned Chief Ehtesab Commissioner had been supplied. The same was sufficient compliance of the provisions of section 265-C of Cr.P.C.
9. Mr. Ali Sibtain Fazli, learned Special Prosecutor in Ehtesab Reference No,26 of 1998 and Ehtesab Reference No,27 of 1998 argued that the learned Chief Ehtesab Commissioner on receipt of complaint referred the matter for investigation to Ehtesab Cell which after thorough inquiry submitted the report to the learned Chief Ehtesab Commissioner, who after applying mind to the report and perusal of the documents proceeded to make the present reference is required under section 15(1) of the Act of 1997. The reference was strictly in accordance with the Act of 1997. The repeal of Ordinance II of 1998 had no effect or legal consequence in view of the provistons of Article 264(e) of the Constitution of 1973. It was argued that the "immunity" is not available to the criminal acts. The mala fide acts are also not protected. In this behalf, reliance was placed on Aman Ullah Khan and others v. The Federal Government of Pakistan and others PLD 1990 SC 1092, Syed Masroor Ahsan and others (supra), Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfiqar Ali Bhutto and 2 others PLD 1975 SC 383, Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. And others PLD 1993 Pesh.
207, Aftab Ahmad Khan Sherpao v. Sardar Farooq Ahmad Khan Leghari and others PLD 1997 Pesh.
93, Pakistan v. Nawabzada Muhammad Umar Khan (deceased) and others 1992 SCMR 2450 and Mrs. Benazir Bhutto v. The Federation of Pakistan and others 1991 MLD 2622. It was added that this was not a legal point. It was a factual controversy and could not be decided until the prosecution evidence was recorded. It was submitted that the same points were raised before the other learned Ehtesab Bench of this Court. The same were decided vide orders dated 28-9-1998 and 2- 10-1998. It was argued that the learned Chief Ehtesab Commissioner had sent a copy of all the relevant documents. The same bore signatures and seal of the Investigating Officer This was sufficient compliance of the relevant provision. In this behalf, reliance was placed on Ganga Ram v.
Baby chin Rai and others AIR 1953 Pat. 295, Azmat Ullah Khan v. The State 1993 PCr.LJ 1220 and K.L.
Gauba v. Emperor AIR 1937 Lah.
411. It was argued that the question of retrospectively and double jeopardy had been decided by a Full Bench of this Court in Riffat Askari v. The State PLD 1997 Lah.
285. It was argued that the application (Criminal Miscellaneous No,80 of 1998 in Ehtesab Reference No,26 of 1998) for production of the record and proceedings of the investigation was liable to be dismissed in view of the provisions of section 172, Cr.P.C. It was argued that the reference to appropriate Government was irrelevant in the present case as the Ehtesab Cell was directed to investigate the complaint received by the learned Ehtesab Commissioner. It was urged that section 15(2) just specified three modes for taking cognizance of any allegation, which were independent of each other and not dependent in any manner.
10. Mian Abdus Sattar Najam, Advocate, while summing up the arguments submitted that there could be situation where the copy of the F.I.R. Was not on record which was quite different from the situation where the F.I.R. Was not in existence at all. It was argued that in the case where the F.I.R.
Was lacking altogether, the trial could proceed because the purpose was to let the accused know of the accusations against him, therefore, the provisions of law referred to and case-law relied upon did not advance the case of the prosecution.
' It was argued that the learned Chief Ehtesab Commissioner being the ultimate and final authority was to pass a speaking order. It was added that copy of the complaint produced in Ehtesab Reference No,29 of 1998 has no nexus with Ehtesab Reference No,26 of 1998 where there was no complaint. It was argued that the prosecution might be directed to produce the record of the investigation before proceeding. Any further. It was added that the immunity from prosecution was not time related but action related. It was argued that the word "making" means "physical structuring, composing, physical shaping". In this behalf, reference was made to Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823.
11. We have given our anxious consideration to the arguments, gone through the record, relevant provisions of the Constitution of 1973 and other laws as well as precedent cases. We first take up the petitions under sections 265-K and 561-A of Cr.P.C. It was argued that the reference had not been made by the learned Chief Ehtesab Commissioner as required under section 15(1) of the Act of 1997 The perusal of the record shows that the) reference had been made by the learned Chief Ehtesab Commissioner after considering the report of the Investigating Officer This fact was 'clear from para.4 of the letter, dated 25th of February, 1998 whereby the Ehtesab References Nos.26 of 1998 and 27 of 1998 were made to the Lahore High Court while. Ehtesab Reference No,29 of 1998 was made to the Lahore High Court on 9th of March, 1998. The other limb of the argument was that the supplementary challah received in this Court on 29-6-1998 was a separate reference and not made by the learned Chief Ehtesab Commissioner. The ' prosecution had moved Criminal Miscellaneous No,30 of 1998 in Ehtesab Reference No,27 of 1998 for proceeding against the accused in terms of supplementary reference. The same was allowed vide order dated 30-7-1998. It was held therein that the supplementary reference was a part and in continuation of the interim reference originally received from the learned Chief Ehtesab Commissioner.
12. The other argument was that there is no F.I.R. In this case. The Act of 1997 was promulgated on 31-5-1997 while the Ordinance II of 1998 came in force on 4-2-1998. It was clear from the' record of these references that the learned Chief Ehtesab Commissioner had already referred these matters to Ehtesab Cell for the investigation under the Act of 1997, therefore, the procedure laid down in the Ordinance could not have been applied. The Act provided that the learned Chief Ehtesab Commissioner may initiate a reference when he was of the opinion that it was necessary to initiate proceedings on a reference, complaint or of his own accord. The matter might be referred to the Ehtesab Cell for inquiry and investigation, which had exclusive jurisdiction. The Ehtesab Cell after completing the inquiry/investigation preferably within one month was to communicate the result to the learned Chief Ehtesab Commissioner for appraisal of the material and evidence in form of a reference while according to section 16(1), the reference under subsection (6) of section 15 shall be deemed tc be information recorded under section 154 of Cr.P.C. The Ordinance II of 1998, besides other provisions substituted subsections (4) and (6) of section 15 and subsections (1) and (2) of section 16 while added subsections (8) and (9) to section 15 of the Act of 1997. We at the moment are only concerned with section 15(6) of the Ordinance, according to which the material and evidence sent to the learned Chief Ehtesab Commissioner by the Ehtesab Bureau was to be deemed as report under section 173 of Cr.P.C. While reference by the learned Chief Ehtesab Commissioner under section 15(4) of the Ordinance of 1998 was deemed to be information under section 154 of Cr.P.C. It was clear from all the references that the proceedings were initiated in the year 1997 much before the promulgation of the Ordinance on 4-2-1998 while reports were submitted by the Ehtesab Bureau after the promulgation of the Ordinance, therefore, the question of reference by the learned Chief Ehtesab Commissioner to the Ehtesab Cell could not be treated as report under section 154, Cr.P.C. It is not possible to reverse the clock. Similarly, the report by the Ehtesab Bureau submitted after the promulgation of the Ordinance in all these cases could not be treated as F.I.R. The same would be treated as report under section 173, Cr.P.C. The amendments we have discussed above, were all procedural in nature and could not be given retrospective effect.
The learned Chief Ehtesab Commissioner while making the reference to the High Court under section 15(1) of the Act of 1997, had enclosed the report of the Investigating Officer and the evidence collected by him. This was prima facie sufficient compliance of law.
13. The other objection in the same line was that the Ordinance expired on 3-6-1998, therefore, the actions taken under the same also lapsed with it. The learned Special Prosecutor rightly referred to Article 264(e) of the Constitution of 1973, which provided that where a law was repealed or deemed to have been repealed under or by virtue of the Constitution, the repeal shall not affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
' The next argument as to the competency of reference was again with reference to section 15(2) of the Act of 1997. The argument was that since there was no complaint on record in Ehtesab References Nos.26 of 1998 and 27 of 1998, therefore, it would be deemed to have been made by the appropriate Government. It was argued that in these references the appropriate Government would be Interior Division and Law and Justice Division as per provisions of Rules of Business, 1973.
On the other hand, learned Special Prosecutor argued that these proceedings were initiated on the basis of complaint. This was all factual controversy which could not be considered without recording prosecution evidence. The other facet of the argument was that the learned Chief Ehtesab Commissioner could not have made reference directly. The same should have been routed through the Interior Division which was entrusted with the Anti-Corruption Laws and Law and Justice Division which was the custodian of all litigation of the Federal Government. The argument in nutshell was that the Rules of Business, 1973 held the field. The argument was misconceived. The Rules of Business, 1973 though framed under the Article 99 of the Constitution of 1973 yet could not be preferred to word of statute. This is not all. The Rules of Business were framed in 1973 while the office of the learned Chief Ehtesab Commissioner came into existence with the promulgation of Ordinance of 1996. The same was not covered by the Rules of Business. This argument otherwise run counter not only to the spirit of the Act of 1997 but also to its positive word.
The whole scheme of the Act was to keep the proceeding, officials and offices out of the influence on the one hand of Members of Parliament and Assemblies while on the other hand, from the influence of the bureaucracy. In this behalf, reference could be made to section 13 and to the preamble of the Act, which reads as under:-- "Whereas it is expedient to provide for eradication of corruption and corrupt practices from the public offices and to provide for effective measures for prosecution and speedy disposal of cases involving corruption and corrupt practices and for matters connected therewith and incidental thereto."
The Act had provided special and comprehensive procedure for processing the cases right from the stage of cognizance by the learned Chief Ehtesab Commissioner, investigation, inquiry and reference to the Court, therefore, there was no scope for applying Rules of Business, 1973 to the proceedings under the Act of 1997. Consequently, the reference was made with legal authority by the learned Chief Ehtesab Commissioner. The questions of double jeopardy and retrospectively had already been dealt with in the judgment of Full Bench of this Court in the case of Riffat Askari (supra).
15. The arguments of the learned Special Prosecutor had merit that the proceedings of the learned Chief Ehtesab Commissioner, Ehtesab Bureau/Cell could not be made available to the accused in view of the provisions of section 172, Cr.P.C.
16. The provisions of Cr.P.C. Mutatis mutandis applied to the proceedings subject to the provisions of the Act of 1997. The reference under the Ordinance to the Ehtesab Cell, while report of the Ehtesab Bureau to the learned Chief Ehtesab Commissioner were treated as F.I.R. Merely by fiction otherwise there would be neither Police Station nor F.I.R Register nor it would be numbered. This was only for the convenience of identifying different stages before the reference was made to the Court.
17. The argument that these are criminal proceedings and, therefore, there could be no reference to the provisions of C.P.C. The point was emphasized with reference to order in Criminal Miscellaneous No,1 of 1998 in Ehtesab Reference No,27 of 1998, whereby the application of the prosecution under section 6 and the claim/objection against the freezing of assets of the accused, were decided. It was held that the matter was of civil nature, therefore, we had referred to C.P.C. This was done after referring to section 12(3) which permitted the Court to dispense with the procedure prescribed in Cr.P.C. And adopt any procedure as held in Shahzada and 53 others v. Malik Shamas-ud-Din and another 1978 PCr.LJ 431. This was besides the fact that section 6(5) of the Act of 1997 provided that the powers, duties and liabilities of the Receiver appointed under the Act of 1997 shall be the same as under Order XL of C.P.C.
18. We have taken into consideration the arguments of the accused. The claim of Asif Ali Zardari was that the Properties Nos.H, Q, T and V were declared by him in the Income Tax and Wealth Tax Returns, therefore, could not be made basis of the charge in the Reference. The documents are yet to be proved in accordance with law. Moreover, he had only referred to fraction of the properties and not the whole lot.
19. Now coming to the judgment of the learned Special Court (Offences in Banks), Karachi. It was clear from its para. 2 that the petitioner and his co-accused were tried for the allegations that they hatched a plan to defraud Habib Bank Limited, Shaheed-e-Millat Road Branch, Karachi. In pursuance thereof they chalked out a scheme to set up a parallel Duty Free Shop at a total investment of Rs,300 millions while in the present reference he was alleged to be the real owner of Tax Free Plaza, therefore, ex facie the judgment in that case has no nexus with the present set of allegations. The argument of the learned Special Prosecutor had merit that the onus of proving the allegations was on the prosecution, which was yet to be discharged after examining the evidence at trial, therefore, there was no basis to conclude that the charges were groundless. The rule laid down by the superior Courts in this behalf was that on assuming the allegations of the prosecution as correct, still no case was made out, then of course the accused was entitled to quashment, dropping of charges, acquittal or discharge as the case might be, therefore, the argument of the accused that if charges in respect of some properties were not correct then the whole case be thrown out, was legally misconceived. The general rule is that the prosecution is not to be killed, stifled, and guillotined in its inception or incubation. The documents referred to by the accused were yet to be proved in accordance with law. This would be again a factual controversy to be settled at trial.
20. Now coming to the question of immunity and mala fide prosecution, suffice it to observe that these were basically questions of fact which could not be decided at random without recording the prosecution's evidence. Likewise the argument that the prosecution of the petitioners was selective and discriminatory could not be readily answered being a question of fact to be examined at the trial. It was stated by Asif Ali Zardari that the Ehtesab Law is oppressive as he is handicapped to move for transfer of the investigation from Ehtesab Cell like any other criminal case to any other agency. Suffice it to record here that the matter has already passed the investigation stage, therefore, the argument is of no legal consequence at present.
21. We have considered the application (Criminal Miscellaneous No,80 of 1998) for production of complete investigation file in Ehtesab Reference No,26 of 1998. The prayer cannot be granted in view of the clear provisions of section 172 of Cr.P.C., which provides that neither the accused nor his agent shall be entitled to call for such diaries nor he shall be entitled to see the same. As such the petition is not competent.
22. The upshot of this discussion is that we do not find any merits in any of I j these petitions. The same are dismissed.