' By this revision application applicant Asif Ali Zardari has challenged order, dated 6-12-1997 of the learned Special Judge, Central II (Anti-Corruption), Karachi, passed in Criminal Case No,4 of 1997 (The State v. Asif Ali Zardari and others), whereby an application under section 540, Cr.P.C. Filed on behalf of the State was allowed.
2. The facts leading to the filing of the above application are that on 16-2-1997, F.I.A.-SIU-Islamabad, registered F.I.R. No,2 of 1997 against the applicant and others under sections 409/420/109, P.P.C.
Sections 156(1) and (8) and 14 of the Customs Act, 1969 read with section 5(2) of Prevention of Corruption Act, 1947. Precisely the facts of the said F.I.R. Are that during the course of inquiry No,45 of 1996, conducted by F.I.A., State Bank Circle, Karachi, it was established that the applicant, an exM.N.A./Federal Minister for Environment and Foreign Investment and spouse of ex-Prime Minister, Pakistan, by abusing his official position as holder of public office in collusion with the Managing Director, P.I.A., Air Vice Marshal (Retd.) Farooq Umar, the then Deputy Collector Customs, Airport, Karachi, Nazeer Shah and others, by using their official positions as public servants, intentionally deviated from the settled procedure/rules relating to the export/air lifting of huge consignment comprising of 8 wooden packages without paying/releasing the prescribed duty/taxes and freight charges 'leviable thereon. It was further transpired that the above consignment was cleared by one Mr. Paul John Keting, 15-Crove Road, Lutol Budford Shire at London, illegally authorised by accused Wajid Shamsul Hassan, ex-High Commissioner of Pakistan at London, vide his authority letter., dated 2-5-1996, being personal belongings of the applicant and thereby he misused his official position as High Commissioner at London and thereby caused wrongful loss to the Government exchequer by deriving corresponding wrongful gains to himself and other concerns and thus, the applicant and the abovenamed accused committed offences of cheating, criminal breach of trust, abuse of official position, smuggling, evasion of tax, customs duty, etc. Punishable under sections 409/420/109, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
3. The facts further reveal that after usual investigation by Mr. Basharat Mahmood Shahzad, Assistant Director, F.I.A./S.I.U., an interim charge-sheet was submitted on 4-3-1997 before the trial Court which was treated as final challan by orders, dated 27-5-1997, on prosecution's failure to file the same. On 12-9-1997, the learned trial Court framed charge against the applicant and others for the offences under sections 420/109, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
4. Thereafter, the prosecution examined P.W.1 Nisarullah, Deputy Chief of Protocol, Camp Office, Karachi and P.W.2 Abdul Rasheed Balouch, Customs Officer from Customs Department, Karachi.
5. On 8-10-1997, the prosecution by way of supplementary interim charge-sheet No,28 of 1997 filed an additional report of an earlier interim charge-sheet alongwith a list of 25 witnesses including the names of 8 witnesses earlier mentioned. Objecting to the entertainment of the above fresh list an application for disallowing and discarding the list of witnesses was preferred by the applicant.
On 22-10-1997, the learned trial Court after hearing the parties at length allowed the application and discarded the list of 25 prosecution witnesses attached with the abovementioned supplementary challan. Again on 11-11-1997, the prosecution, moved an application under section 540, Cr.P.C. Before the learned trial Court for summoning 9 witnesses as Court-witnesses which was allowed on 6-12-1997, which resulted in the filing of the present application.
6. I have heard Mr. Azizullah K. Shaikh, the learned counsel for the applicant and Mr. Mubarak Hussain Siddiqui, the learned Deputy Attorney-General, for the State at length and have gone through the R & Ps as well as the orders referred above.
7. The learned counsel for the applicant attacked the impugned order and stated that the said order is premature in nature and has been passed in clear violation of law. According to him the learned trial Court had already dealt with the same subject-matter and disallowed the list of 25 witnesses, attached with supplementary challan, including the 9 witnesses mentioned in the impugned order, as such it cannot reopen as the same had attained finality by having not challenged the same before any higher forum. He next contended that the trial Court had become functus officio, hence had no jurisdiction to recall its own order, dated 22-10-1997. According to him there was absolutely no fresh ground for allowing the 9 witnesses to be examined as prosecution witnesses as P. Ws. Nasirullah and Abdul Rasheed Balouch examined at trial had said nothing about them in their respective statements and calling them only on consideration of ,their 161, Cr.P.C. Statements .Was never justified. He lastly submitted that the trial Court has failed to appreciate that by allowing the application under section 540, Cr.P.C. Not only character of the witnesses has been changed from Court-witnesses to that of prosecution witnesses, but the gaps and lacunas left by prosecution have also been filled, thus, has caused grave miscarriage of justice. In support of his contentions he placed reliance on 1987 SCM R 886.
8. On the other side, the learned Deputy Attorney-General controverted the contentions of the applicant's counsel and argued that an order passed on the application under section 540, Cr.P.C.
Has nothing to do with the earlier order, dated 22-10-1997 as the same was passed merely on technical grounds. According to him the earlier application was miscellaneous in nature and was not moved under any provision of law, whereas the application in question was moved under particular and legal provisions of law, whereunder the learned trial Court was competent enough to call any person as witness. He, however, admitted that P. Ws. Nisarullah and Abdul Rasheed Balouch examined at trial had not disclosed anything about 9 witnesses called as Court-witnesses, but the perusal of their 161. Cr.P.C. Statements lead towards ascertainment of truth for the just decision of case. In support he relied upon case-law reported in 1995 PCr.LJ 730, 1992 M LD 930 and 1993 M LD 1401.
9. Admittedly the learned trial Court had discarded and disallowed the list of 25 witnesses presented alongwith the supplementary interim challan, dated 8-10-1997 vide order dated 22-10- 1997, passed on the application moved by Mr. Kh. Adeel Ahmed, the learned defence counsel of the applicant. It is pertinent to note that the 9 witnesses subsequently allowed to be examined as prosecution witnesses by order, dated 6-12-1997, passed by the said trial Court on the application of prosecution under section 540, Cr.P.C. Were included in the earlier discarded list. It is also a recorded fact that the earlier order, dated 22-10-1997 was not challenged before this Court or any other Court, as such had attained finality. The subsequent order passed on application under section 540, Cr.P.C. On the same subject-matter already adjudicated upon would amount to review which is not permissible in law as the scope of review has not been laid down in the Criminal Procedure Code. By doing so, the trial Court has sat over its own order and thus, acted as Court of appeal and committed an illegality not curable under law and calls for interference of this Court.
Thus, the contention of the applicant's counsel that the trial Court had become functus officio and hence had' no jurisdiction to reverse/recall its own order has sufficient force. The Honourable Supreme Court in the case of Painda Gul v. The State and another 1987 SCM R 886, referred above, in paragraph 10 at page 890 has observed that though this Court in the case of Amiruddin v. The State and another PLD 1977 SC 602, has expressed the view that although an order on a bail application does not amount to a judgment under section 369, Cr.P.C., yet the general principle of finality of judgment would attach to the decisions or orders of the High Court passed in criminal cases and it is only in rare and exceptional cases that the High Court has inherent power to revoke, review or alter its own decisions.
10. On the question of jurisdiction. It has been held by the Honourable Supreme Court in the same paragraph that in cases where matter stood already concluded no fresh application for reopening the same would be entertainable and thus, the Court passing subsequent order would be without any legal authority.
11. In the case in hand the learned trial Court has first rejected the request of prosecution to allow a list of 25 witnesses including those 9 witnesses, by detailed order. Simply reversing its own order by mentioning that the earlier order was passed on legal and technical grounds and the Court under section 540. Cr.P.C. Is competent to call the above-referred 9 witnesses as prosecution witnesses, is absolutely an invalid ground. The said order is passed only on the perusal of their 161, Cr.P.C.
Statements which A are not admissible in evidence.
12. It will he relevant to mention here that the powers under section 540, Cr.P.C. To be exercised by the Court are divided in two parts. The first part is discretionary in nature, whereas the second is mandatory. According to the first part it is discretionary with the Court to summon any person as witness suo motu or on an application, whereas according to the second part the powers to summon, examine, recall or re-examine any person as a witness are to be exercised with due care and great caution. There should be some convincing evidence/material available on the record from which it is to be inferred that the examination of a particular person as a witness is essential for the just decision of the case. The impugned order is passed merely keeping in view the bare statements under section 161, Cr.P.C. Of the witnesses which was available with the trial Court at the tirne of passing of earlier order and no fresh material had either emerged or was available while passing the order in question. Irrespective of above, P.Ws. Nisarullah and Abdul Rasheed Balouch were examined earlier to the passing of initial order of disallowing the list of 25 witnesses. These witnesses in their statements had even not made any disclosures of the evidence to be adduced by the said 9 witnesses, as such their calling at the subsequent stage would be nothing more than tilling in the lacunas left by the prosecution.
13. Adverting to the application under section 540, Cr.P.C., it is mentioned in its first paragraph that copies of 161, Cr.P.C. Statements of P.Ws. Mumtaz Lahori, Afzal Shah and Khalid Shafi have been attached, whereas no request has been made to the trial Court to call them as Court-witnesses. So far its second part is concerned, the request for calling the said 9 witnesses, namely, Fida Muhammad Khan, Kh. Manzoorul Hassan, Ghazanfar Ali Abidi, S. Abbas Ali Rizvi, Muhammad Siddique Kalhoro, Muhammad Uris, Rai Sikandar Ahmed, Abdul Rahman Farooqui and Anwar Ali Khan has been made purely on the basis that they, during the course of inquiry, had made valuable disclosure of relevant facts of the case as such they may be called as Court-witnesses in the larger interest of justice. It was not for the first time that this fact was disclosed to the prosecution but it was all along available to them even at the time of submission of first interim challan dated 4-3-1997 which was subsequently treated as final on 27-5-1997, on failure of filing final challan though directed on many occasions. Not only this, but thereafter charge was framed on 12-9-1997 and subsequently two witnesses Nisarullah and Abdul Rasheed Balouch were examined out of a list of 8 witnesses attached with the above-referred final challan .
14. From the above discussion, it becomes clear that moving an I application under section 540, Cr.P.C. For calling 9 witnesses as Court witnesses is an afterthought. Different observations arrived at by the trial Court on the same subject-matter call for an interference and this Court in exercise of revisional jurisdiction is competent to set aside the order which is not only erroneous but not sustainable in law.
15. The case-law referred by the learned Deputy Attorney-General is on different facts and circumstances of the case and has nothing to do with the case of the respondent.
16. In the case of Mst. Amnah Bibi v. Kashif-ur-Rehman and another, reported in 1995 PCr.IJ 730, the witnesses called to be examined their names were mentioned in the F.I.R. To have seen the incident and that they had also filed their personal affidavits before the Court to that effect. In the case of Muhammad Sadiq v. The State and others 1993 M LD 1401, referred by the respondent's counsel, the Lahore High Court dismissed the revision application and disallowed the request for calling the witnesses under section 540, Cr.P.C. Mainly on the ground that their names were neither mentioned in the F.I.R. Nor appeared in the list of witnesses attached with the report under section 173, Cr.P.C.
This case on the contrary supports the version of the applicant in whose case also the names of witnesses are neither mentioned in the F.I.R. Nor have been included in the first interim challan which was treated as final later on. This Court in the case of Muhammad Iqbal Khetana v. The State 1992 M LD 930, has dealt with another aspect of the case and has remanded the case for fresh trial mainly on the ground that the evidence of witnesses should be recorded in presence of defence counsel and statements under sections 342 and 340(2), Cr.P.C. Of appellant be also recorded in view of fresh evidence.
17. For what has been discussed above. I am of the considered opinion that the impugned order suffers from legal infirmities and is liable to be set aside. Accordingly, this revision is allowed and order, dated 6-12-1997 is set aside.
Revision .