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Petitioner: Mohtarama BENAZIR BHUTTO, M.N.A. and anothers VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Saeeduzzaman Siddiqui Title: Mohtarama BENAZIR BHUTTO, M.N.A. and anothers vs THE STATE Case No.: Criminal Petitions Nbs.65 and 66 of 1999 Date of Judgment:1999-03-18 Reported As: PLD 2000 Supreme Court 795 Result: Order accordingly
JUDGMENT
JUDGMENT SAIDUZZAMAN SIDDIQUI, J.---The above petitions, after converting into appeals, were disposed of by the following short order on 18-3-1999: "We have heard the learned counsel for the petitioners, the learned counsel for the State and learned Deputy Attorney-Generai at length in the above petitions and for reasons to follow separately, these petitions are converted into appeals and are disposed of as under:-- (1) The order dated 1573-1999, passed by the learned Ehtesab Bench, closing the evidence of the petitioners is set aside subject to the following: (i) That the petitioner in Criminal Petition No,65 of 1999, who wishes to appear as her own witness under section 340(2), Cr.P.C. Will appear, before the learned Ehtesab Bench hearing Reference No,30 on Monday, the 22nd of March, 1999 and on that day, the learned Ehtesab Bench shall record her statement under that section. (ii) The learned counsel for the petitioner in Criminal Petition No,66 of 1999 has made a categorical statement before us that the petitioner in that case does not wish to appear before the Court and record his statement under section 340(2), Cr.P.C., and therefore, in his case no such statement needs to be recorded by the learned Ehtesab Bench. (iii) In Criminal Petition No,65 of 1999 the petitioner has filed a copy of the miscellaneous application filed before the learned Ehtesab Bench on 1-3-1999 in which she had made the prayer for issuing summons in respect of as many as 39 witnesses, who are proposed to be examined in the case in her defence. Similarly in Criminal Petition No,66 of 1999 the petitioner's counsel states that his client wishes to examine the following 3 witnesses as defence witness, namely:-- (1) Mr. Abu Bakar Zardari, Advocate.
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(2) Superintendent Jail, Landhi, Karachi. (3) Mr. Salvator Aversano, Advocate (Geneva). The request for summoning these witnesses may be taken up by the learned Ehtesab Bench on 22-3-1999 after completion of the evidence of Ms. Benazir Bhutto under section 340(2), Cr.P.C. Or on such other date as is convenient to the learned Ehtesab Bench, and shall be disposed of in accordance with law keeping in view the provisions of section 265-F and specially clause (7) thereof. After the statement of petitioner and her witnesses have been recorded in the manner indicated above, the learned Ehtesab Bench will fix the case for arguments both on the application under section 265-K, Cr.P.C. Moved by the petitioner as well as on merits of the case but in doing that the Court will first address to the question of admissibility of the documents produced in the case before the learned Ehtesab Bench. The learned Ehtesab Bench will allow reasonable time to the petitioners for production of the witnesses which the Court ultimately may finally allow them to be summoned in the case. The learned counsel for the petitioners have stated that some of the witnesses are not residents of Pakistan and to summon them visa facilities will be required. The learned Ehtesab Bench if allows summoning of these witnesses, the order summoning the witnesses may be given to the petitioners to enable them to obtain visa for these witnesses but responsibility of producing these witnesses will be that of the petitioners. It has been brought to our notice that some unpleasant incidents took place during the hearing of the reference before the learned Ehtesab Bench. We sincerely hope that the learned counsel for the petitioner as well as learned prosecutor will show utmost restraint during the pendency of the case and will do everything within their power to maintain a congenial atmosphere in the Court befitting the dignity of the Court. The learned counsel for the petitioners are, however, told that if some persons come along with the petitioners, the responsibility to ensure that they do not cause any obstruction to the hearing of the case will be that of the petitioners and their counsel. The appeals stand disposed of accordingly." These are the reasons for the above short order. The appellants are facing trial in Ehtesab Reference (E.R.) No,30 of 1998 before Ehtesab Bench (E.B.) of Lahore High Court on the allegations that as holders of public offices, the petitioners in league with others, awarded contract of pre- shipment inspection to M/s. Societe General De Surveillance S.A. (S.G.S.) in consideration of having received illegal gratification and undue pecuniary advantage in the form of Kickbacks/commissions and other favours from them. The appellants' statements under section 342, Cr.P.C. Were recorded in the said E.R. On 23-2-1999, when both the appellants expressed the desire to lead evidence in defence. They were accordingly, directed by the Ehtesab Bench to produce the evidence and the list of witnesses on 1-3-1999. On 1-3-1999 when the matter was taken 143 by Ehtesab Bench, no witnesses were present on behalf of the appellants. However, the counsel for appellant Ms. Benazir Bhutto, submitted a list of witnesses proposed to be examined in the case before the Court and further stated that the list was not complete and was to be supplemented later on by other lists. The counsel for the other appellant Mr. Asif Ali Zardari, however, did not file any list of the witnesses. The case was therefore, adjourned to 8-3-1999 and then to 15-3-1999 for evidence of the appellants. As no witnesses were produced by the appellants on these two dates, the learned Judges of Ehtesab Bench, on the last-mentioned date, closed the evidence of appellants and posted the case for arguments on the main case on 16-3-1999 with direction that the case would proceed from day to day. The learned Deputy Attorney-General and the learned counsel for Chief Ehtesab Commissioner (C.E.C.) stated before us that they have concluded their arguments and the case is now posted for announcement of judgment on 22-3-1999. In this background the appellants approached this Court on 17-3-1999 for stay of the proceedings of E.R. No,30 of 1998 and for setting aside the order of Ehtesab Bench dated 15-3-1999. The petitions were
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placed in chamber before one of us (Saiduzzaman Siddiqui, J.) on 17-3-1999 for interim relief but after hearing the learned counsel for the parties and the learned Deputy Attorney-General it was directed to be fixed in Court today. Accordingly, the petitions have been fixed before us today for hearing. We have heard Mr. Syed Iftikhar Hussain Gillani, Advocate Supreme Court for Ms. Benazir Bhutto, Mr. Farooq H. Naik for Mr. Asif Ali Zardari, Mr. Ali Sibtain Fazli, Advocate Supreme Court for the referring authority (Chief Ehtesab Commissioner) and Mr. Tanvir Bashir Ansari for the Federation, at length, and after hearing them converted these petitions into appeals and they are disposed of as under. Mr. Iftikhar Hussain Gillani, the learned counsel for Ms. Benazir Bhutto firstly, contended that over 1000 documents have been produced before the Ehtesab Bench in E.R. 30 of 1998, which are certified copies of the documents obtained from E.R. No,26 of 1998, pending before another Ehtesab Bench of Lahore High Court. The genuineness and authenticity of these documents, according to Mr. Iftikhar Gillani, are disputed by the appellants and in view of the judgment of this Court in Criminal Petition for Leave to Appeal No,208 of 1998 dated 4-3-1999 arising from E.R. No,26 of 1998 the admissibility of these documents is yet to be determined by the Bench hearing E.R. No,26 of 1998. It is also contended by Mr. Iftikhar Gillani, the learned Advocate Supreme Court for Ms. Benazir Bhutto, that amongst the documents produced before the Hon'ble Ehtesab Bench in E.R. No,30 of 1998 by the prosecution, there are about 150 foreign documents authenticity and genuineness whereof has been challenged by the appellants and the Hon'ble Ehtesab Bench in order to determine their genuineness and authenticity appointed a commission to visit Switzerland. The order of the Ehtesab Bench appointing the Commission to verify the genuineness and authenticity of the documents from Switzerland has been challenged by the appellants before this Court in Criminal Petitions Nos.46 and 47 of 1999 in which leave has been granted on 12-3-1999 and a direction has been given that the report of the Commission, including the documents annexed thereto, shall be kept in a sealed cover by the Registrar, Lahore High Court and shall not be placed before the Ehtesab Bench till the disposal of the appeals by this Court. On these premises, Mr. Iftikhar Gillani, vehemently contended that firstly, the certified copies of the documents obtained from E.R. No,26 of 1998 could not be exhibited in E.R. No,30 of 1998 before the question of their admissibility is determined by the Ehtesab Bench; and secondly, the appellants could not be called upon in these circumstances to enter upon their defence as in the absence of determination of the question of admissibility of these documents, the appellants are unaware as to the exact nature of allegations against them. In the alternative, Mr. Iftikhar Gillani urged that the appellants have a right to appear as their own witnesses in terms of the provisions of section 340(2), Cr.P.C. Which opportunity has been denied to them. The learned counsel further contended that in so far the question of summoning of witnesses in the case was concerned, the appellant had filed an application for summoning of witnesses on 1-3-1999 in which a specific prayer was made for issuance of summons to the witnesses mentioned therein but the same was not granted. In these circumstances, it is contended by Mr. Syed Iftikhar Gillani, that it cannot be urged that the appellants failed to produce their evidence in the case. Mr. Farooq H. Naik, the learned Advocate Supreme Court for Asif Ali Zardari appellant in the other appeal, however, categorically stated that his client does not wish to appear as his own witness under section 340(2), Cr.P.C. In E.R. No,30 of 1998 but strenuously argued that in his statement filed before the Ehtesab Bench under section 265-F(5), Cr.P.C. On 8-3-1999, he had specially stated that he wanted to examine the following three witnesses:-- "(1) Superintendent, District Jail, Malir, Karachi to produce all the relevant records of my arrest and detention in District Jail, Malir, Karachi with effect from November, 1990 till March, 1993. (2) Mr. Salvatore Averson, Advocate, Geneva. (3) Mr. Abu Bakar Zardari, Advocate."
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Mr. Naik, therefore, while adopting the arguments of Mr. Iftikhar Gillani, stated that in the alternative, he would pray .That appellant Asif Ali Zardari be allowed to produce the 3 witnesses mentioned above in his defence. Mr. Ali Si Stain Fazli, the learned Advocate Supreme Court for Chief Ehtesab Commissioner. And Mr. Tanvir Bashir Ansari, the learned Deputy Attorney-General on the other hand contended that the appellants have deliberately avoided to produce any evidence in the case and therefore, the learned Ehtesab Bench had no option but to close their evidence. The learned counsel further jointly contended that the application for summoning the witnesses though contained the names of large number of witnesses but it did not disclose the substance of the evidence of these witnesses and therefore, the Court was in no position to determine the relevancy of their evidence in the case. The learned counsel therefore, jointly contended that the only purpose of the present proceedings is to delay the proceedings of E.R. No,30 of 1998 otherwise the appellants could have produced at least some of these witnesses if they were really serious in the proceedings of the case when the case came up for hearing on 1-3-1999, 8-3-1999 and 15-3-1999. After hearing the learned counsel for the appellants, the learned counsel for C.E.C. And the learned D.A.-G. At length, we are of the view A that notwithstanding the facts that the appellants failed to produce any witness when E.R. No,30 of 1998 was taken up for hearing on 1-3-1999, 8-3-1999 and 15-3-1999, we allow appellant Ms. Benazir Bhutto to appear as her own witness in E.R. No,30 of 1998 before the Ehtesab Bench, under section 340(2), Cr.P.C. And the appellant will also be allowed a fair opportunity to examine witnesses in their defence within the bounds of law. The learned counsel for the appellants jointly contended that the appellants may not be asked to enter upon their defence in E.R. No,30 of 1998 until such time the question of admissibility of the documents produced in the Ehtesab Reference is determined by the Bench as in the absence of such determination, the appellants are unaware of the exact nature of the allegations against them. The contention does not appear to be correct. The appellants are being tried for alleged offences of "corruption and corrupt practices" defined in section 3 of Ehtesab Act, 1997 (hereinafter to be referred as "the Act"). Section 12 of the Act which deals with the procedure for trial of cases under the Act reads as follows:-- "12. Provisions of the Code to apply,.Etc.--(1) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Act. (2) Subject to subsection (1), the provisions of Chapter XXII-A of the Code shall apply to trials under this Act. (3) Notwithstanding anything contained in subsection (1) or subsection (2) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may mean fit in the circumstances of the case." In terms of clause (1) of section 12 of the Act, the procedure prescribed under the Code of Criminal Procedure, 1898 (hereinafter to be referred as the Code") for trial of cases is made applicable to proceedings under the Act except where the provisions of the Code are found in conflict with the provisions of the Act. In the latter case, the provisions in the Act apply. Subject to clause (1) of section 12 ibid, Chapter XXII-A of the Code (sections 265-A to 265-N) which contains provisions relating to the trial of cases before High Court and Court of Session has been specifically made applicable in its totality to the trials under the Act. Section 265-C ibid, specifies the statements and documents which are to be supplied to the accused in the case before the framing of the charge. Section 265-D provides that the Court may frame the charge against the accused after perusal of police report or the complaint, as the case may be, and other documents and statements filed by the prosecution, if the Court is of the opinion that there is sufficient ground for proceedings against
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the accused in the case. After framing of the charge, the Court calls upon the accused under section 265-E whether he pleads guilty to the charge or not. In case he pleads guilty to the charge, he may be convicted by the Court then and there. However, if he denies the charge, he may be asked whether he has any defence. Section 265-F ibid, which deals with the manner of production of evidence by the prosecution and the accused at the trial of the case reads as follows:-- "265-F. Evidence for prosecution.--(1)if the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. (3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. (4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (5) If the accused puts in any written statement, the Court shall file it with the record. (6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. (7) If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing." The above provisions of section 265-F of the Code which apply to the proceedings of trials under the Act, clearly provide that in the event of denial of charge by the accused, the Court shall record evidence offered by the prosecution in support of the charge in the case against the accused. The prosecutor may apply to the Court for summoning the witness and the Court shall summon such witness after ascertaining from the prosecutor the names of the witnesses who are acquainted with the facts of the case. The Court may, however, refuse to summon a prosecution witness if it is of the opinion, which is to be recorded in writing, that the witness is being summoned for the purposes of vexation or to cause delay of the trial or to defeat the ends of justice. On conclusion of the evidence of prosecution the Court shall examine the accused and ask him if he intends to adduce any evidence. If the accused files any written statement, the Court shall keep the same on record and if the accused elects to lead evidence, the Court shall call upon him to enter his defence and produce his evidence. After accused has entered his defence as aforesaid, he may apply to the Court as provided in section 265-F (7) ibid for the issuance of process for compelling the attendance of any witness for examination in the case which the Court shall allow unless for reasons to be recorded in writing, the Court considers that the purpose of making the application is vexatious or to delay the C proceedings or to defeat the ends of the justice. In a case where accused does not adduce evidence in his defence, the Court on close of prosecution case and examination of accused (if any) may ask the prosecutor to sum up his case and then call upon the accused to reply. However, if the accused leads evidence in his defence, the Court shall call upon the accused to sum up his case on the close of defence evidence and then call upon the
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prosecutor to reply. The Court under section 265-H shall either acquit or convict the accused, if after framing of the charge, he is found not guilty or guilty as the case may be. From the above discussion, it is quite clear that the accused is to be asked by the Court to enter on his defence and to produce his evidence, after the prosecution has concluded its evidence, the accused has been examined under section 342, Cr.P.C. And on being asked by the Court the accused expresses his desire to lead evidence in his defence in the case. Although, the statement of appellants recorded under section 342,-Cr.P.C. By the Court in E.R. No,30 of 1998 has not been produced before us but it is not denied that the statement of the appellants under section 342, Cr.P.C. Were recorded by the Court on 23-2-1999 after the prosecution closed his evidence in the case and both the appellants expressed their desire to lead the evidence in defence in their statements under section 342, Cr.P.C. The learned counsel for the appellants have not been able to point out any provision in the Code which requires that where the prosecution has produced documents in its evidence then unless the question of admissibility of the documents so produced, is determined by the Court, the accused cannot be called upon to enter on its defence. The question of admissibility of a document tendered in the evidence, if objected to by an accused, can either be decided by the Court at the time of receiving the document in evidence or it may postpone its consideration at some later stage. The contention of the appellants that unless the question of admissibility of the documents produced in the evidence by the prosecution is determined, they cannot be asked to enter upon their defence, has no merit. As discussed above, the accused are charged in a criminal case on basis of the evidence produced by the prosecution. Similarly, the object of examination of an accused under section 342, Cr.P.C. Is to draw his/her attention to the circumstances and pieces of evidence in the case against him/her which are relied by the prosecution or which are likely to influence the mind of the Court. Therefore, the accused is called upon to enter on his defence not with reference to admissibility or otherwise of any evidence produced by the prosecution but with reference to circumstances and points appearing in the evidence of prosecution against the accused to which his attention is drawn while examined under section 342, Cr.P.C. The question of admissibility of any piece of evidence produced by the prosecution in the case, therefore, has a bearing to the conviction or acquittal of the accused in the case on the basis of such evidence. If the appellants have objected to the admissibility of any documentary or oral evidence against them in the case, they are free to press the objection before the Court at the stage of arguments which will be disposed of in accordance with the law. They are, however, not entitled under any law to ask for the postponement of their defence in the case until determination of the question of admissibility of either documentary or oral evidence in the case produced by the prosecution. The next question which arises for determination in these cases is, whether the evidence of the appellants was rightly closed in the cases by the learned Judges of the Ehtesab Bench. The learned counsel for C.E.C. And the learned D.A.-G. Jointly contended that the appellants were afforded ample opportunity in the cases to adduce their evidence but they deliberately failed to produce their evidence and therefore, the learned Judges of Ehtesab Bench, were fully justified in closing their evidence in the case. The learned counsel for C.E.C. And the learned D.A.-G. Further jointly contended that the appellants never applied for summoning of any particular witness before the Ehtesab Bench and in any case the fact that they have applied for summoning of as many as 39 witnesses without disclosing the substance of their evidence, show that their sole effort is to delay the proceedings and to obstruct the process of Court. The contention does not appear to be correct. We have already- reproduced above section 12 of the Act which makes the provisions of the Code applicable to proceedings under the Act. According to section 12(2) ibid, the provisions contained in Chapter XXII-A of the Code relating to procedure for trial of cases before High Court and Court of
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Session, equally apply to trial under the Act. The learned counsel for C.E.C. And the learned D.A.-G. Are unable to point out any provision in Chapter XXII-A of the Code or any other provision in the Act or the Code which required that an accused while applying to summon a witness in defence must also disclose the substance of his evidence. No doubt, under section 12 (3) of the Act, the Court has been vested with the power to dispense with the procedure prescribed under the Code and to follow any other procedure it may deem fit in the circumstances of the case but to do that the Court has to record his reasons. It is not contended before us that the Ehtesab Bench had either elected not to follow the procedure prescribed under the Code for trial or that it had recorded reasons for following a procedure different from the one prescribed under the Code. Similarly, the contention of the learned counsel for the C.E.C. And D.A.-G. That the fact that appellants have proposed to summon as many as 39 witnesses in defence goes to show that their main aim is to…
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