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Petitioner: Mohtarma BENAZIR BHUTTO and another VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Irshad Hasan Khan, Muhammad Bashir Jehangiri, Raja Afrasiab Khan Title: Mohtarma BENAZIR BHUTTO and another vs THE STATE Case No.:Criminal Petitions Nos. 46 and 47 of 1999Criminal Miscellaneous No,17 o
1998, in Ehtesab Reference No,30 of 1998 Date of Judgment:1999-03-12 Reported As: 1999 SCMR 2726 Result: Leave to appeal granted Judgment ORDER ' IRSHAD HASAN KHAN, J.---Through this common order we propose to dispose of Criminal Petitions Nos.46 and 47 of 1999 alongwith with Criminal Miscellaneous Nos.55 and 56 of 1999 respectively, having been directed against the common order, dated 1-3-1999, passed by the learned Ehtesab Bench, Lahore High Court, Rawalpindi Bench, Rawalpindi, issuing commission to Mr. Moazzam Hayat, Registrar, Lahore High Court, Lahore to visit Switzerland, to compare the certified copies, produced in evidence by the prosecution with the documents in the original record, collected by Judge, Daniel Davaud and also to verify the authentication of certified copies. 2. The prosecution story, as stated in the petitions, is that the learned Chief Ehtesab Commissioner filed Reference No,30 of 1998 before the learned Ehtesab Bench, Lahore High Court under section 15(1) of the Ehtesab Act, 1997 (hereinafter referred to as the Act), on 14-3-1998 against the petitioner and 12 others alleging therein that the petitioner, ex-Prime Minister of Pakistan, Mr. Asif Ali Zardari, ex-Federal Minister and spouse of the petitioner and Mr. A.R. Siddiqui, ex-Chairman, C.B.R. By abusing their authority as holder of public office, in collusion with each other and in collaboration with Messrs Societe Generals De Surveillance S.A. (SGA), awarded contract of Pre-Shipment Inspection (PSI) to Messrs SGS in consideration for illegal gratification and undue pecuniary advantages in the form of kickbacics/commissions and bestowed upon the said company other favours/concessions resulting in colossal loss to the public exchequer. 3. It was also alleged in the Reference that on 11-3-1994, Messrs Societe Generale De Surveilance S.A. (SGS) a firm dealing in Pre-Shipment Inspection of imports/exports, gave a written undertaking to Jens Schelegelmilch, sole Director/President of Bomer Finance Inc., duly owned by Asif Ali Zardari,
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stating therein inter alia that in consideration for his active support and assistance in connection with the promotion and negotiation by Messrs SGC of an import verification programme with the Government of Pakistan, they shall pay him a consultancy fee corresponding to 6% (six per cent) of the total amounts paid to, and received by them from the Government of Pakistan in accordance with the terms of the contract. Jens Schelegelmilch on behalf of Bomar Finance Inc., agreed and signed the letter which shows that the consultancy fee referred to in the letter was, in fact, commission/kickbacks in return for getting the Pre-Shipment Inspection contract from Government of Pakistan. 4. It was also alleged that Mr. Asif Ali Zardari showed unprecedented concern regarding the affairs of P.S.I. Companies and intervened to secure maximum facilities for them and also, without any legal authority, used to chair meetings to resolve the so-called issues of P.S.I. Companies. 5. It was further alleged that Pre-Shipment Inspection contract, was awarded to Messrs SGS in consideration for 6% (six per cent) commission/kickbacks of total amount received by Messrs SGS from Government of Pakistan. The Commission/kickback was offered/paid to offshore company, namely, Bomer Finance Inc. Owned by Mr. Asif Ali Zardari, his fiduciary agent Jens Schelegelmilch, and sole Director/President of the said company. The ultimate beneficiaries of these commissions/kickbacks were the petitioner and her husband Asif Ali Zardari and Jens Schelegelmilch worked as fiduciary agent of the petitioner and Mr. Asif Ali Zardari, in establishing a network for receiving/collecting the kickbacks and commissions in this case offered by Messrs SGS Inspection S.A. Thus, Jens Schelegelmilch and the accused Directors of Messrs SGS besides being beneficiaries facilitated and aided the commission of the offence. 6. After filing of the Ehtesab Reference by the Chief Ehtesab Commissioner against the petitioners and other, charge was framed and evidence led by the prosecution in this behalf. After the close of the prosecution evidence the petitioner's statement was recorded under section 342 of the Code of Criminal Procedure Code 1898 (V of 1898), (hereinafter referred to as the Code) and the defence evidence was to be led by the petitioners. 7. The matter came up for hearing on 1-3-1999 and the learned Ehtesab Bench passed an order for production of defence evidence by the petitioner and adjourned the case for 8-3-1999 for this purpose. During the proceedings of the case the Special Public Prosecutor pressed the plea taken in the written reply on behalf of Hasan Wasim Afzal, P.W.14, for issue of commission to verify the genuineness of the authentication of certified copies of documents tendered in evidence by the prosecution. It is alleged that no order was passed when the case was adjourned in presence of both the parties. At about 4.00 p.m. It was communicated by the Additional Registrar of the Lahore. High at Rawalpindi to Mr. Farooq H. Naek, Advocate, on telephone, that the impugned order has been passed by the learned Ehtesab Bench and despite request, copy of the order was not provided. 8. Mr. Iftikhar Gillani, submits that the application under section 476 of the Code was moved on 22- 2-1999, statement of the petitioner under section 342 of the Code was recorded on the same day and the case was later adjourned to 23-2-1999 for filing the list of defence witnesses. The statement of Senator Asif Ali Zardari was recorded on 23-2-1999 and the case (Ehtesab Reference No,30 of 1998) was adjourned to 1-3-1999 for recording defence evidence. 9. The impugned order is ought to be quashed, inter alia, on the following grounds taken in the petitions for leave to appeal:-- (a) The impugned order has been passed without jurisdiction and lawful authority. No commission could be issued under the law to verify the genuineness of the authentication of certified copies of documents tendered in evidence by the prosecution. (b) That the impugned order amounts to fill up the lacuna of the prosecution. Even otherwise the order passed by the learned Ehteasab Bench at the back of the petitioner is totally illegal. No
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formal request in writing by the Special Public Prosecutor has been made to the learned Ehtesab Bench therefore, the impugned order has been passed without application of judicial mind. This rather gives as impression that the learned Ehtesab Bench has by itself taken the duty of the prosecution as the impugned order has been passed a' ter adjourning the matter in presence of both the parties. (c) The impugned order has been passed in an arbitrary manner which is in violation of principle of natural justice as well as fundamental rights of the petitioner guaranteed under the Constitution. (d) By the impugned order there is an abuse of process of law and against the ends of justice. ' However, during the course of arguments, Mr. Iftikhar Gillani, learned counsel for the petitioner (Mohtarma Benazir Bhutto), elaborated his contentions as follows:-- (a) There is no provision in the Code for issue of commission to examine documents; (b) The impugned order was passed without hearing the petitioner and after the Court hours, when the case had already been adjourned to 8-3-1999; (c) Notice to the petitioner for appearance in Geneva did not permit time enough to the petitioner to be personally present there or through a representative; (d) According to Swiss Law (Code of Criminal Procedure, Republic and Canton of Geneva), applicable to the proceedings before the Investigating Magistrate are secret, and the request of the Government of Pakistan has already been declined for association with the proceedings by the Chamber of Appeals of Geneva vide order, dated 2-10-1998 and also by the Swiss Federal (Supreme) Court vide order, dated 13th January, 1999. (e) No reciprocal arrangement exists between the Government of Pakistan and the Federal Republic of Switzerland regarding issuance of commission; 10. Mr. Farooq H. Naek, learned counsel for Senator Asif Ali Zardari, in Criminal Petition No,47 of 1999, raised the following pleas:-- (a) The impugned order has been passed without hearing the petitioner; (b) It has been passed to fill up the lacunae of the prosecution; (c) The petitioner's statement under section 342 of the Code was recorded on 23-9-1999, after the prosecution had closed and rested their case; (d) Section 503(2-B) of the Code does not stipulate the issuance of the commission in the manner it has been done by the learned Ehtesab Bench; (e) It is not the function of the Court to collect evidence for the parties; (f) The Court cannot acquire power, which has not been conferred on it by the statute because it amounts to circumvention and clearly defeating the intention and purpose of the law maker; (g) Without prejudice to the above pleas, issuance of commission in the absence of the parties is most unsatisfactory. (h) The petition is competent and the petitioner has locus standi to approach this Court, inasmuch as, the impugned order was passed not only for comparison by the commission, of the certified copies tendered in evidence, by the prosecution, with the original but also fur the purpose of deciding the main case, which will cause prejudice to the petitioners. 11. Reliance was placed on various provisions of the Federal Act on International Mutual Assistance in Criminal Matters, known as (IMAC), of 20th March, 1981, (as amended on the 4th of October, 1996), with particular reference to Articles 8,.63, 65, 90 and repealed Articles 82 and 84, to contend that no reciprocal arrangement exists between the two countries regarding issuance of commission. Reliance was also placed on Ratilal Bhanji Mithani v. The State of Mashrashtra (AIR 1972 SC 1567), to highligh the pre-requisites for issue of foreign commission. Reference was also made to the case of Habibullah Majumder v. Nikhil Poddar (AIR 1970 Tripura 93), to contend that a party has no right to issue of commission where no reciprocal arrangement exists between the countries. Case of Sardul Singh v. Emperor (AIR 1926 Lah. 567), was also quoted to contend that
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examination of a witness in the absence of the complainant or accused, is most unsatisfactory in criminal cases. Reference was also made to "Rules and Orders of the Lahore High Court, Lahore" Volume-I, regarding the commission and letters of request and for the examination of the witnesses in foreign countries. 12. Criminal Miscellaneous Application No,55 of 1999 in Criminal Petition No,46 of 1999, came up for hearing in Chambers before my learned brother Saiduzzaman Siddiqui, J., on 4-3-1999, who was pleased to pass the following order:-- "The learned counsel contend that the order, dated 1-3-1999 was passed by the learned Ehtesab Bench after the case was adjourned and the counsel was notified at 0400 p.m. On 1-3-1999 regarding the order passed by the learned Ehtesab Bench without hearing counsel of the parties. It is further contended that through another notice received from the Registrar of Lahore High Court petitioner Ms. Benazir Bhutto has been directed to be present in Switzerland on 5-3-1999 while no such notice was addressed to the counsel for Asif Ali Zardari, the other petitioner in the case. This notice was received through fax by the counsel on 3-3-1999 and as such in these circumstances, it is contended by the learned counsel, it was humanly impossible either for the parties or their counsel to be present in Switzerland, as directed in the notice. "Let notice of these applications be issued to the Ehtesab Commissioner as well as Attorney- General for 8-3-1999 and till then the commission should not be executed." 13. The matter again came up for hearing in Criminal Miscellaneous Applications Nos.55 and 56 of 1999 in Criminal Petitions Nos.46 and 47 of 1999 on 8-3-1999, whereupon my learned brother Saiduzzaman Siddiqui, after hearing the learned Attorney-General for Pakistan and Mr. Iftikhar Gillani, Advocate Supreme Court and Mr. Farooq H. Naek, Advocate Supreme Court, passed the following order:-- "According to the statement of learned Attorney-General, the commission appointed in the cases left Pakistan on 3-3-1999 before passing the order staying execution of the commission. In these circumstances, I am not inclined to extend the stay granted in the cases. The petitions, alongwith stay applications, may be fixed in Court tomorrow, the 9th of March, 1999." ' In consequence of the above order, these petitions alongwith the stay applications have been listed for hearing before this Bench. 14. Mr. Iftikhar Gillani, learned counsel for the petitioner in Criminal Petition No,46 of 1999 has alleged that Mohtarma Benazir Bhutto, had been directed to be present in Switzerland on 5-3-1999 through an ex parte order and behind her back. The precise submission of the learned counsel for the petitioner is that the learned Ehtesab Bench, passed orders of issuance of commission behind the back of the petitioners in violation of the principle of audi altram partem, therefore, any proceedings taken and acts done by any authority, Court or Judge in Switzerland and/or in Pakistan, pursuant to the impugned order, are wholly without jurisdiction, coram non judice and non existence in the eye of law. 15. Ch. Muhammad Farooq, learned Attorney-General, for Pakistan, appearing on behalf of the respondents, has made the following submissions:-- (1) Written reply to the Criminal Miscellaneous No,17 of 1999 was filed before the learned Ehtesab Bench, Lahore High Court, Rawalpindi Bench, on 1-3-1999, in which it was, inter alia, contended that all the documents produced in the prosecution evidence were genuine documents, bulk of which are part of judicial record received from Switzerland through official channel. In the said written reply, it was further suggested in good faith and for advancement of justice that despite the fact that the record was genuine and certified in accordance with law, it might be in the interest of justice and expedient in the circumstances of the case that the learned Ehtesab Bench was pleased to issue commission to Mr. Moazzam Hayat, who is visiting Switzerland, to examine the
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documents collected by Judge Mr. Denial Devaud and compare the certified copies produced in evidence before the learned Ehtesab Bench with the said original documents. (2) The learned Ehtesab Bench in a most just and equitable manner exercised its judicial discretion and, after hearing both the parties, passed a detailed order, dated 1-3-1999 wherein it was held that it shall be in the interest of justice, to issue commission for comparing the copies with the original record at State expense. The learned Ehtesab Bench, in exercise of such discretion, issued commission appointing Mr. Moazzam Hayat, Registrar, Lahore High Court, to visit Switzerland, to compare the certified copies produced in evidence by the prosecution with the documents in original record, collected by Judge Mr. Denial Devaud and also to verify the authentication of certified copies. The Applicant or her representative and Respondent in Criminal Miscellaneous No,17 of 1999 were also entitled to associate in the proceedings conducted under the commission, if they so desire. Not only the learned counsel Dr. Z. Babar Awan, Advocate, but, also the Petitioner hereself addressed the Ehtesab Bench on the said application on 1-3-1999. (3) Subsequently, Mr. Moazzam Hayat, Registrar, Lahore High Court, to whom the commission was issued notice, dated 3-3-1999 to the petitioner giving intimation that the examination of the documents for authentication shall be made by him in the Chambers of Judge Denial Devaud, High Court of Justice, Geneva on 5-3-1999 on 11.30 a.m. Local time to enable the petitioner or her representative to associate in the said proceedings, if they so desire. Mr. Moazzam Hayat, accordingly left for Switzerland on 3-3-1999 to complete the assignment before the issuance of the stay order, dated 4-3-1999. It is further submitted that the said stay order was recalled on 8-3-1999 vide order passed by Mr. Justice Saeeduzzaman Siddiqui, J. In Chambers. (4) No application of the nature of Criminal Miscellaneous No, 17 of 1999 was moved by Mr. Asif Ali Zardari (Petitioner in Crl.P.L.A. No,47 of 1999), and, thus, he has no locus standi to file Criminal Petition for Leave to Appeal No,47 of 1999. (5) The order, dated 1-3-1999 is a lawful and valid which has been passed by the learned Ehtesab Bench in its judicial discretion to advance the cause of justice and to arrive at a just and conclusive finding in the matter. (6) Under section 5(2), of the Code all offences tried under any law other than Pakistan Penal Code are to be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiry into, trying or otherwise dealing with such offences. The trial of the petitioner is being conducted under the Act and according to section 12(3), (ibid), the Court (the Ehtesab Bench), notwithstanding anything contained in subsection (1) or subsection (2) of section 12 or any law for the time being in force, may for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case. (7) The issuance of the commission to examine and compare the documents produced before it with the original documents in Switzerland is in the best interest of justice and is not prohibited under any provision of law. It may also be submitted that, under section 561-A of the Code, the Courts are vested with inherent powers to pass orders to secure the ends of justice. (8) The order dated 1-3-1999 was passed, after hearing both the parties in the matter, and is fully supported by law. By adopting the procedure of on the spot inspection and comparison of the documents, the learned Ehtesab Bench has only advanced the cause of justice which is in the interest of both the parties. There is no provision of law which prohibits or precludes a Court from adopting a procedure not prohibited by law'for securing the ends of justice In fact, the present petition has been filed only to defeat, delay and thwart the proceedings before the Ehtesab Bench, The petitioner Mr. Asif All Zardari, who had not even filed any Criminal Miscellaneous Application of the nature of Criminal Miscellaneous No,17 of 1999, has no locus standi to file the Crl.P.L.A.
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16. The learned Attorney-General further reiterated that the petitioners are adopting dilatory tactics to prolong the proceedings before the Ehtesab Bench, inasmuch as, they have so far moved nearly one hundred applications on one pretext or another. The instant petitions had not been move bona fide but with the sole purpose to delay the proceedings. The petitioners have wrongly asserted that in the reply of the respondent no formal request, in writing, by the Special Prosecutor, had been made to the learned Ehtesab Bench, inasmuch as, such a prayer was clearly made in reply on behalf of Hasan Wasim Afzal in Criminal Miscellaneous No,17 of 1999. The leaned Attorney-General, however, frankly concedes that no reciprocal arrangement exists between the Pakistan and Switzerland for issuance of commission and no notification under section 503(2-B) of the Code has been issued in this behalf. ' Learned Attorney-General further urges that the impugned order is well reasoned and has been passed by proper application of judicial mind. He explained that in response to "Pakistan Mutual Assistance in Criminal Matters", the Judge of Swiss Authority, allowed the request. In consequence, the documents in dispute, were collected by the Government of Pakistan. Those documents were duly certified by the Magistrate/Judge at Geneva, duly authenticated by the Embassy of Pakistan as required under Article 89(5) of the Qanune-e-Shahadat Order, 1984. The documents, in question, were delivered by the Swiss Authorities to the Government of Pakistan through the Ambassador of Pakistan at Switzerland and the latter transmitted them to the foreign office and ultimately received by the Attorney-General for Pakistan and the same were passed on to the Special Prosecutor, somewhere in September, 1998, for the purpose of Reference No,30 of 1998 and Reference No,26 of 1998, etc. He asserts that .The above documents as originally received from Switzerland were produced before the Ehtesab Bench, seized of Ehtesab References Nos.26 of 1998 and 30 of 1998. The latter is pending before the Ehtesab Bench, comprising Mr. Justice Malik Muhammad Qayyum and Mr. Justice Najamul Hassan Kazmi. The impugned order in this petition arises out of Ehtesab Reference No,30 of 1998. He further submits that examination-in-chief of P.W.14 was fixed in November, 1998 and continued up to middle of February, 1999. He was subjected to lengthy cross-examination. On every documents, a question was put to him that he had fabricated the documents to which the witnesses replied in the negative. The witness asserted that it was a genuine document. However, on 18-2-1999, when prosecution evidence stood closed and all suggestions as to fabrication of the said documents were denied, an application was moved, under section 476 of the Code, which resulted in the passing of the impugned order. ' Mr, Attorney-General submits that the above background of the case may be taken into consideration for determination of bona fide or otherwise of the petitioners in approaching this Court. He further submits that, in the facts and circumstances of the case, section 503(2-8), was not attracted, therefore, resort was rightly made by the learned Ehtesab Bench to the provisions of section 561-A of the Code, read with section 5 thereof, and sections 12, 18 and 28 of the Act. Reading all the provisions together, the learned Attorney-General reiterates that, in the interest of justice, the learned Ehtesab Bench, in a most just and equitable manner, exercised its judicial discretion, to which no exception can be taken. He vehemently reiterates that the impugned order was interim in nature. The petitioner will be at liberty to raise whatever objections available to them under the law on the report of the Commissioner before the learned Ehtesab Bench. They shall also be at liberty to raise all these pleas in appeal, if the reference is decided against them. It is urged that the petitions, being premature, merit dismissal by declining leave to appeal. He emphasises that Senator Asif Ali Zardari has no locus standi to move the petition. ' In rebuttal, Mr. Iftikhar Gillani, made a statement at the Bar that the impugned order was passed without hearing the petitioner. He further submits that although Mohtarma Benazir Bhutto made a brief submission before the Court but no arguments took place on the issuance of the commission. Mr. Farooq H. Naek placed reliance on Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275)
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and Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) to contend that the powers under section 561-A of the Code cannot be exercised mechanically or in every case, where there is allegation of false implication or of the evidence being false and that in any case, the power under the aforesaid section is not normally to be invoked where another remedy is available. 17. We have heard the learned counsel for the petitioners and Ch. Muhammad Farooq,. Learned Attorney-General for Pakistan. Admittedly, Mr. Moazzam Hayat, Registrar Lahore High Court, to whom commission was issued, left Pakistan on 3-3-1999 and the order staying the execution of the commission was not extended by order dated 8-3-1999 (supra). Be that as it may, the legality of issuance of the commission, in the facts and circumstances of the case, is yet to be examined. The mere fact that the person who has been named in the commission has already left for Switzerland would not affect the right of the petitioners to seek leave to appeal against the impugned order and to show whether or not the learned Ehtesab Bench has acted justly, fairly and in accordance with law while passing the impugned order of issuing commission. 18. The basic dispute in this case relates to authenticity and genuineness of certain copies of various foreign documents, alleged to be certified, bulk of which were allegedly part of judicial record, received from Switzerland allegedly through official channel. 19.…
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