1. ' This order will dispose of the application under section 265-K, Cr.P.C. Submitted by the applicant Ms. Naheed Khan who is one of the accused in this Ehtesab Reference. The applicant has alleged that the Deputy Director, F.I.A. In his first complaint, dated 11-5-1997 did not cite her as an accused, whereas the learned Chief Ehtesab Commissioner on his own included her name in the Ehtesab Reference. It is further alleged by the applicant that in the original reference 9 witnesses were cited as prosecution witnesses, while in the supplementary reference 19 witnesses have been cited. The first 9 witnesses are common to both the references. It is further alleged that the statements tendered by these 19 witnesses before the F.I.A. Do not mention her name but the Deputy Director, F.I.A. Attached to the Ehtesab Cell in his supplementary complaint, dated 20-3-1998 (vide para. 10) has wrongly and on his own accord stated as follows:-- "That during the course of investigation it also reveals that Ms. Naheed Khan, former Political Secretary to ex-Prime Minister of Pakistan in conspiracy with other accused and abusing her official position, with ulterior motives and without any lawful authority issued letters to the Managing Director, P.I.A.C. For illegal appointments of three officers namely Mir Muhammad Abbasi, in Group V, Umer Razzak in Group IX/X and Manzoor Ahmed in Group-Ill under her own signatures."
2. ' According to the applicant there is no evidence to connect her with the alleged offences in view whereof she should be acquitted at this stage.
3. ' The learned counsel for the applicant/accused mainly urged that there were only three letters on which the whole case of the prosecution hinged against the applicant; neither these letters nor any other evidence recorded during the investigation revealed that the applicant/accused in any manner indulged in corruption or corrupt practices as defined under section 3 of the Ehtesab Act.
4. He has further submitted that in spite of the fact that Ch. Abdul Qadeer, the Deputy Director, F.I.A., in his first complaint, dated 11-5-1997 did not cite her as an accused, the learned Chief Ehtesab Commissioner included the applicant's name for mala fide reasons upon the directions of the Government of the day.
5. ' The learned Special Prosecutor while opposing the listed application contended that the three letters are sufficient to establish the applicant's guilt since the same have been admitted.
6. Furthermore, he stated that at this stage the application is premature since the evidence is yet to be unravelled to substantiate the charges of abetment leveled against the applicant in collusion with the other accused.
7. ' The crux of the matter lies in scrutinizing the contents of the three letters in issue, which for the sake of convenience are reproduced as follows:--
(a) First letter No,1/6/Pol.Secy/PM/94.
8. 17-5-1994.
9. ' The case of Mir Muhammad Abbasi son of Muhammad Hassan Abbasi is being recommended for transfer/deputation from P.I.A. Duty Free Shops to P.I.A. In an equivalent post according to his performance and qualifications. He has worked eight years as an Inspector Airport Security Force and cleared vigilance courses. At present he is working in P.I.A. Duty Free Shops as a Security Inspector for the last four years. He is a graduate (sic) Division and appeared in LL.B. Examination.
10. ' Kindly look into the case on priority basis and help (sic) accommodation of Mir Muhammad Abbasi in Pakistan International Airline.
11. (Sd.) Naheed Khan, Political Secretary to the Prime Minister.
12. ' Managing Director, ' P.I.A., Head Office, ' Karachi Airport, Karachi.
(b) Second letter "Subject Request for Mr. Omar Razzaq for appointment in P.I.A. In Group X or IX and in ODDC Group VIII.
13. ' Reference is invited to this Secretariat's original Communication No,54/S/Pol.Secy./PM/94, dated 18-1-1994 and subsequent letter, dated 26-11-1994 on the subject noted above.
14. ' The case of the appointment of Mr. Omar Razzaq was approved by the Prime Minister on 16-1-1994 and has been delayed for a very long time. It is requested that the matter may kindly be looked into personally and appointment of Mr. Omar Razzaq expedited.
15. ' Action taken in the matter be intimated to undersigned.
16. (Sd.) Naheed Khan, Political Secretary to the Prime Minister 12-12-1994.
17. ' P.S.O. To P.M."
(c) Third letter Prime Minister's Secretariat (Public), Islamabad No,1/G/Pol./Secy/PM/94 6-12-1994 ' Subject Application for the post of time-keeper P/G III or Flight steward P.G.IV.
18. ' Copy of enclosed application from Mr. Manzoor Ahmed (resident of Khairpur Mirs bearing recommendations of Mr. Asif Ali Zardari, M.N.A. And Provincial Minister for Communications and Works refers.
19. ' Progress of the case may please be intimated to this office.
20. (Sd.) Naheed Khan, Political Secretary to the Prime Minister Director (Admn.) P.I.A., Karachi.
21. ' In the first letter the applicant has recommended one Mir Muhammad Abbasi working in the P.I.A.
22. Duty Free Shop to'be transferred from there to the P.I.A. In equivalent post according to his performance and qualification. There is a suggestion in such letter that he may be also taken on deputation in the P.I.A. Furthermore, such letter categorically directs the Managing Director to look into this recommendation on priority basis. The applicant admits the writing of this letter. The employments in the P.I.A. Duty Free Shop and the P.I.A. Are distinct. It is not a case where an inter- departmental transfer was recommended. Even had it been so, the Political Secretary of the Prime Minister had no lawful authority to recommend, order or direct inter-departmental transfers, let alone transfers or appointments on deputation or otherwise from one employment scheme to another. Prima facie, a bare reading of this letter alone does not leave the impression that the applicant had not been instrumental in finding placement for Mir Muhammad Abbasi in the P.I.A.
23. ' The second letter is an internal correspondence between the applicant and the Personal Staff Officer of the then Prime Minister. The Personal Staff Officer has in turn forwarded this letter to the P.I.A. Or took up the matter with .The P.I.A., as the case may be. In this letter although the applicant has under scored the fact that the appointment of one Omar Razzaq in P.I.A.. Has been approved by the then Prime Minister, however, she on her own accord has requested the matter to be expedited and looked into personally. Prima facie it cannot be said that the applicant in writing this letter has only communicated the orders of a superior authority for which she cannot be blamed (see State v. Abdullah Shah 1998 M LD 216 for this principle of law). It is personal Staff Officer who could have taken this plea had he been charged.
24. ' The third letter, however, gives an impression that the orders of the Prime Minister have only been communicated for which the applicant cannot be blamed.
25. ' At this Onstage it cannot be said that even if the entire case as pitched by. The prosecution against the applicant were believed, no case shall be made out against her. Prima facie, the first two letters as discussed above do not leave the impression as invited by the counsel for the applicant. At this stage these letters, admitted to have been written by the applicant, are still to be brought in evidence and the key prosecution witnesses, in particular, Ghazanfar Mashkoor and Lieutenant Colonel Basit Ali are yet to be examined and cross-examined. These witnesses in their statements before the Investigation Officer have also implicated the applicant for abetting the illegal appointments with other accused persons, at least on the basis of the two letters discussed above.
26. ' In light of the above discussion the listed application is dismissed as premature.
27. ' Before parting, it is needless to point out that the discussion as above only reflects a tentative view and shall have no bearing on the trial or subsequent applications, if any.