' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this application under sections 435/439, Cr.P.C.
The applicant has assailed the propriety of orders, dated 2-6-2001 and 11-7-2001 passed by the learned Judge Accountability Court No,IV, Sindh, Karachi.
2. The relevant facts giving rise to this revision application are that the applicant is facing trial before the Accountability Court alongwith other accused persons for the offences punishable under sections 468, 471 and 34, P.P.C. Read with section 5(2) of Act, H of 1947 and sections 3/4 of the Ehtesab Act, 1997. The prosecution was initiated on the Reference dated 15-5-1997, under section 14(1) of the Ehtesab Ordinance, 1997 made to the Ehtesab Bench of this Court. Charge was framed on 20-10-1998 in the absence of applicant Ms. Benazir Bhutto, who was exempted from her personal appearance. The applicant was represented by Mr. Abdul Hafeez Lakho, Advocate. Mr. Abdul Hafeez Lakho, Advocate, pleaded not guilty to the charge on behalf of the applicant Ms. Benazir Bhutto. The applicant challenged the framing of charge in the Hon'ble Supreme Court where the matter is still pending. During the pendency of trial National Accountability' Bureau Ordinance, 1999 (hereinafter referred to as the NAB Ordinance) was promulgated, which repealed the Ehtesab'Act, 1997. Under section 33 of the NAB Ordinance the case was transferred to the Accountability Court No,IV, Sindh, Karachi.
3. Evidence was partly recorded by the Ehtesab Bench of this Court under the earlier law and the entire remaining evidence has been recorded by the Accountability Court No,IV, Karachi, in the absence of applicant as she was granted exemption by the Hon'ble Supreme Court of Pakistan in C.M.A. 140 of 1999 (reported as 1999 SCM R 1710). The matter was ripe for recording of statement of the accused persons, including the applicant under section 342, Cr.P.C. On 12-5-2001, Mr. Abdul Hafeez Lakho, Advocate, representing the applicant, submitted an application requesting that he may be permitted to make a statement under, section 342, Cr.P.C. On behalf of the applicant. The learned trial Court put off the hearing of application to 19-5-2001. On the said date, Mr. Abdul Hafeez Lakho, submitted an application seeking permission to withdraw the earlier application for the reason that the applicant wanted to appear herself statement under section 342, Cr.P.C. It was prayed through the said application that recording of her statement may be postponed till she returns to Pakistan. The learned trial Court allowed the request for withdrawal of the earlier application of the learned counsel for the applicant but rejected the request for adjournment sine die. However, recording of statements under section 342, Cr.P.C. Was deferred as the learned trial Court intended to amend/alter the charge and the matter was adjourned to 2-6-2001 for the said purpose. It has been stated in the application by the learned counsel for the applicant that he sought permission from the learned Judge to leave the Chamber which was granted and no order was dictated in his presence while granting the adjournment. Subsequently, it transpired that the learned trial Court directed the applicant/accused to be present in person at the time of alteration/amendment of the charge on the next date i,e, 2-6-2001. On 2-6-2001, Mr. Abdul Hafeez Lakho, was busy in High Court and the hearing was adjourned to 30-6-2001 when the charge was to be amended/altered and the applicant was required to be present. On 14-6-2001 the learned counsel for the applicant submitted an application praying to recall/modify the order, dated 2-6-2001 to the limited extent, requiring the attendance of applicant in Court for the purposes of amending/altering the charge. The said application was dismissed on 11-7-2001.
4. The applicant is aggrieved with the order, dated 2-6-2001 directing personal attendance of the applicant for the purpose of explaining the amended charge to her and to record her plea and the order dated 11-7-2001 rejecting the prayer for recalling/modifying the said order.
5. It is stated in the grounds contained in the revision application that the learned trial Judge has erred in considering extraneous matter such as recording ' of statement of accused under section 342, Cr.P.C., while disposing of the request limited only to the extent, to allow the applicant, to be represented by her counsel at the time of reading over and explaining the amended/altered charge. It is next pleaded that the learned trial Court has misdirected in not applying the principles of law enunciated by this Court in the case of State Bank of Pakistan v. Syed Nasir Hussain Zaidi PLD 1988 Karachi 379. It is further contended that ' merely because the trial Court has the power to withdraw exemption, the exemption already granted should not be withdrawn without any sufficient ground/reason. It is submitted that the Ehtesab Bench of this Court recorded the plea of applicant through her Advocate on 20-10-1998 and, therefore, there was no impediment in law in recording the plea of applicant through her counsel after the amendment/modification of the charge.
6. Mr. Abdul Hafeez Lakho, learned counsel for the applicant has reiterated the facts and the legal pleas as contained in the revision application. He has drawn our attention to the observations made in the impugned order, dated 11-7-2001 to the effect that while examining the record for preparation of statement under section 342, Cr.P.C. The learned trial Court found that charge already framed needs some alteration/amendment. He has particularly drawn our attention to the following direction contained in the order, dated 19-5-2001.
"While examining the record for preparation of statement under section 342, Cr.P.C., I have observed that the charge framed in this reference needs some alteration under section 227, Cr.P.C.
The accused persons are, therefore, directed to appear in person on 2-6-2001 for reading over altered charge and recording of their pleas."
7. Mr. Abdul Hafeez Lakho, Advocate, has pointed Out that the law as laid down by this Court in the case of State Bank of Pakistan v. Syed Nasir Hussain Zaidi .(supra) was cited before the learned trial Court.
8. The learned trial Court observed that it is true that it has been held in the case of State Bank of Pakistan v. Syed Nair Hussain Zaidi that the charge can be framed in the presence of Advocate for the accused who has been granted exemption from the personal appearance in Court under section 205, Cr.P.C. But it has further been held that the accused would appear as and when required by the Court as mentioned under sections-205 and 540-A, Cr.P.C. The learned trial Court further observed that Hon'ble Supreme Court of Pakistan while dispensing with personal attendance of applicant vide order, dated 17-5-1999 had authorised the trial Court to direct the applicant to appear in person at any stage and to take appropriate steps to enforce 'her attendance. The learned trial Court further observed that the plea of applicant has been recorded at Exh. 21 but neither the signatures of any person are available on the plea nor in the plea it has been mentioned as to who has pleaded on behalf of the accused and under these circumstances the Court found necessary that the altered charge be read over and explained to the accused Ms. Benazir Bhutto in person and her plea be recorded accordingly. With these observations the application seeking recalling of the order, dated 2-6-2001 was dismissed.
9. Mr. Abdul Hafeez Lakho, learned counsel for the applicant, has vehemently argued that the learned trial Court has not shown any reason for withdrawal of the exemption, except that the altered charge is to be read and explained to applicant and that signature of the applicant does not appear on the earlier plea recorded on 20-10-1998 and that it has not been mentioned as to who pleaded on behalf of the accused, which is contradictory to the material available on record.
He has produced before us the order, dated 20-10-1998 which clearly states as follows:-- "Charge read out to the accused, their plea is recorded as Exhs. 24 to 28. Accused Ms. Benazir Bhutto and Ms. Naheed Khan represented by their Advocates and they replied the charge."
10. He has further contended that it is clearly held by Mr. Naimuddin, C.J., (as his lordship then was) in the case of State Bank of Pakistan (supra) that appearance by a pleader involves the performance of all acts that devolve upon the accused in the course of trial such as pleaded guilty or not guilty, making necessary answer to examination under section 342, Cr.P.C., hearing of deposition of a witness, hearing of a judgment, the sentence being one of fine only or the accused being acquitted under section 366(2), Cr.P.C. He has further contended that the absence of signature on the plea recorded by Ehtesab Bench of this Court was at the request of applicant and, therefore, the applicant has neither pleaded that it has caused any prejudice to her nor such plea is available, and therefore, the learned trial Court has entered into hypertechnicality which is not warranted in law. Mr. Abdul Hafeez Lakho, has submitted that he is not disputing the authority/discretion vested in trial Court in withdrawing the exemption from personal attendance but his contention is that very discretion is to be exercised reasonably and in accordance with the sound principles of the administration of justice and not for subjective consideration or in a whimsical manner. He has, submitted that when the learned trial Court has itself observed that the charge can be framed in the presence of Advocate for accused who has been granted exemption from personal appearance and no other reason has been assigned for withdrawing the exemption, the order suffers form impropriety and the trial Court admittedly being a Court inferior to this Court the impugned orders suffering from impropriety should be set aside and the applicant may be allowed to be represented through her Advocate.
11. Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor General, supported the impugned order.
He has submitted that the applicant is fugitive at law and, therefore, she is not entitled for any indulgence by this Court. He has, whoever, conceded that she is fugitive at law in some other cases and not in this case. We are, therefore, not inclined to agree that the applicant can be deprived of a benefit allowed to her because of some facts and circumstances against her, which is not the subject-matter of this case. The learned Deputy Prosecutor General further submitted that since the applicant applied for her personal appearance for the purpose of recording of her statement under section 342, Cr.P.C., therefore, the learned trial Court was justified in withdrawing the exemption. Again we do not find any substance in the contention because the application is to be read as a whole and not in part. The trial Court rightly rejected the plea for adjournment of the hearing sine die, but it does not mean that it shall result in withdrawal of exemption already granted to her or that the altered charge cannot be read over and explained to her Advocate who has represented her since very inception of the case till today and has intimated the Court that he will appear for recording plea on behalf of the applicant when the altered charge is read over and explained in the same way as it was read over and explained on 20-10-1998 and plea was recorded.
12. We have very carefully considered the material available on record, the impugned orders and the contentions raised by the learned Advocates for the parties before us. The pith and substance of the impugned order is that since trial Court is empowered to direct personal appearance of applicant, therefore, it has given such direction. No other reasons has been assigned for withdrawing the exemption. It is established principle of the administration of justice ,that every judicial order should be a reasoned order failing which it shall not be treated to be a judicial order.
The exercise of jurisdiction vested in any judicial authority should be for objective reasons appearing in the order, failing which it is liable to be assailed as an order 'suffering from impropriety, non-application for mind and suffering from arbitrariness. The principles which have been deduced by the superior Courts from the provisions contained in section 367, Cr.P.C. And other similar provisions such as Order XX, rule 5 and Order 41, rule 31, C.P.C. That every judicial order should contain reasons in the decision. It is imperative that every judicial order should be an order containing the reasons because any order without reasons is liable to be struck off and more particularly after the inclusion of section 24-A, in the General Clauses Act, 1897, no room has been left for any authority, office or person, who has been conferred authority not make any order or give any direction to make the order without assigning reasons. Section 24-A of the General Clauses Act, 1897, reads as follows:-- "24-A. Exercised of Power and enactments.---(1) Where, by as under any enactment, a power to make any order on give any direction is conferred on any authority, office as person such power shall be exercised reasonably, fairly, justify' and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any Order on issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reason for making the Order on, as the case may be, for issuing the direction and shall provide a copy of the Order and, as the case may be the observation to the person affected prejudicially."
13. A perusal of above section clearly shows that any discretion vested in any authority is to be exercised reasonably, fairly, justly and for advancement of the purposes of the enactment. It is specifically provided in subsection (2) of the above section that the authority making the order shall give reasons for making the order for issuing the direction. Since the impugned orders do not contain the' reasons and do not show as to how the withdrawal of exemption is reasonable, fair, justified and for the advancement of the purposes of the enactment i,e, expeditious conclusion of trial under the N.A.B. Ordinance, 1999, therefore, we are of the opinion that the impugned orders suffer from impropriety and do not conform to the mandatory requirement of section 24-A of the General Clauses Act, 1897. The purpose of N.A.B. Ordinance is to dispose of the accountability cases expeditiously and without any delay. It has already been demonstrated that the course adopted by the learned trial Court has not advanced the purposes of the N.A.B. Ordinance, 1999, as unnecessary delay has been caused. If the learned trial Court would have' continued to proceed against the applicant in presence of her Advocate as was done from the stage of recording of plea to the conclusion of recording of prosecution evidence, by now the proceeding would have been concluded.
14. For the foregoing reasons the impugned orders are set aside. The applicant is allowed to avail the exemption granted by the Hon'ble Supreme Court of Pakistan and to be represented through her Advocate, as was being done upto 19-5-2001. The revision application is allowed accordingly.
15. On hearing learned Advocate for the parties on 10-8-2001, the revision application was allowed by a short order and above are the detailed reasons in support thereof.
Revision .