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Petitioner: Ms. BENAZIR BHUTTO VS Respondent: THE PRESIDENT OF PAKISTAN and another
Court Name: Supreme Court of Pakistan Judge(s):Sajjad Ali Shah, Nasim Hasan Shah, Ajmal Mian, Abdul Qadeer Chaudhry,
Shafi-ur-Rehman Title: Ms. BENAZIR BHUTTO vs THE PRESIDENT OF PAKISTAN and another Case No.: Civil Miscellaneous Petition No, 138 of 1991 Date of Judgment:1991-10-16 Reported As: 1992 SCMR 140 Result: Application dismissed Judgment ORDER ' AJMAL MIAN, J.---This is an application under Article 6 of the President's Order 17 of 1977, hereinafter referred to as the Order, for the transfer of the References filed by the Referring Authority against the petitioner pending in the Special Court comprising of Mr. Justice Rashid Aziz Khan, a Judge of the Lahore High Court, hereinafter referred to as the learned Judge. 2. The brief facts are that the petitioner is a member of the National Assembly of Pakistan, hereinafter referred to as the Assembly, representing district of Larkana. She is also a former Prime Minister of Pakistan and at present the Leader of the Opposition in the Assembly. The Referring Authority had filed seven References in three Special Courts under the Order; two of them have been filed in the Special Court comprising a Judge of the Sindh High Court, whereas remaining five References have been filed before the Special Courts comprising the Judges of the Lahore High Court. Out of the above five References, three References, namely, References Nos. 4, 5 and 13 of 1990 relating to Lake View Hotel Project in Islamabad, allocation of L.P.G. (Liquid Petroleum Gas) and alleged irregular appointments, respectively, are pending before the learned Judge. References Nos. 4 and 5 of 1990 were filed in September, 1990, whereas Reference No,13 of 1990 was instituted on 22-10-1990. It seems that the petitioner filed C. M. No,1 of 1990 dated 3-11-1990 for getting exempted from personal appearance in Reference No,5 of 1990, which was granted by an order dated 18-11-1990. The petitioner filed C.M. No,7 of 1990 dated 16-10-1990 in above Reference No,4 of 1990, challenging the jurisdiction of the Special Court. Similar applications were filed in the other two References. The above applications were rejected by a common order dated 14-11-1990.
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3. That it appears that thereafter in the first week of December, 1990, the petitioner filed C.M.P. No,574 of 1990 before this Court under Article 6-A of the Order for the transfer of inter alia above References from Lahore to the Special Courts functioning at Karachi inter alia on the grounds, that the President himself initially selected the available forum at Karachi by filing the first two References, the petitioner had been elected from a Constituency in Sindh and that for attending the proceedings at Lahore, she had to incur an expenditure of about Rs,20,000 on each visit etc. However, the above C.M.P. Was dismissed by an order dated 9-2-1991, in which inter alia it was held that the References filed at Lahore were on account of genuine nexus of the subjects with the forums in territorial sense and that the selection in this behalf was due to considerations providing tangible connection between the subject matters and the forums. As regards the convenience of the parties or witnesses as a ground of transfer, it was observed that all such points having been met by the amendment introduced in Article 3 (3) of the Order, there was no justification left for transfer of cases from Lahore to Karachi. At this juncture, it may be observed that proviso to sub- Article (3) of Article 3 of the Order was added by an amendment gazetted on 15-1-1991 providing as follows:-- "Provided that a Special Court may, either of its own motion or at the request of any party, sit at such other place as it may decide in the interest of justice, having regard to the general convenience of the parties and the production of evidence." ' In the above order on the question of bias, the following observation was recorded on the basis of the statement of the learned counsel for the petitioner:- "He also candidly stated that there is no question of any grounds of bias, being involved." 4. It appears that after the above dismissal of the miscellaneous petition for the transfer of the References from Lahore to Karachi, the petitioner filed C.M. No,19 of 1991 dated 23-2-1991 under above Article 3 (3) of the Order in Reference No,4 of 1990 for hearing of the Reference at Karachi. Identical applications were filed in the other two References. But the above applications did not find favour with the learned Judge, who after hearing the parties by a detailed common order dated 3-3-1991, dismissed the same. After that, the matter proceeded before the learned Judge. Various miscellaneous applications were filed, which were heard and disposed of. The evidence of the prosecution was concluded in Reference No,5 of 1990 on 30-7-1991 and the case was fixed for 13-8-1991 for recording of the statement of the petitioner. It seems that while the References were proceeded with, upon the request of the learned counsel for the petitioner and with the consent of the learned counsel for the Referring Authority, the petitioner's counsel were given inspection of the official record relating to the References, which generated controversy about tampering of the record, withholding of the relevant record by the Department etc. As observed hereinabove, Reference No,5 of 1990 was fixed for 13-8-1991 for recording of the petitioner's statement. However, on the latter date, the learned counsel for the petitioner submitted that some files were not made available for inspection and that in a file, pages from 127 to 310 were missing. Thereupon, the learned Judge adjourned the case to 18-8-1991 for recording of the petitioner's statement and also ordered that the inspection of the record would be made on 15-8-1991 in the office of the Registrar of the Court. After that, a number of miscellaneous applications were filed in the above Reference referred to hereinbelow. When the above case came up for hearing on 18-8-1991, the petitioner's counsel filed C.M. No, 19 of 1991 pointing out that the pages referred to in the above application were missing from the file mentioned shown to him by the Referring Authority. It was also pointed out that the Referring Authority withheld the documents/records referred to in the above application. It was prayed that the files already inspected be sealed, while those to be inspected be retained in the custody of the Registrar of the Court. It was further prayed that further proceedings including the recording of the statement of the petitioner be deferred until a reasonable time after:--
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(a) an inquiry has been held into the reasons and motives for withholding/omission to supply the entire record furnished for inspection despite an undertaking to that effect made by the learned counsel for the Referring Authority, (b) Counsel for the petitioner have been allowed the opportunity to fully inspect the entire record as ordered including all the material documents. ' On the above application, the learned Judge inter alia ordered on 18-8-1991 as follows:- (i) That the petitioner's counsel shall give on 21-8-1991 a list of files containing details of the files which he wish to examine; (ii) The petitioner's counsel shall file any other application which he wish to move by 21-8-1991; (iii) No further adjournments shall be allowed on the above ground. 5. It appears that on or before 21-8-1991, the petitioner filed C.M. No,20 of 1991 dated 20-8-1991 for the inspection of the record mentioned therein which inter alia included the following record:- "(a) All the files relating to the appointment of retired or retiring Senior Officers of the Armed Forces in various Wings of the State machinery. (b) All allotments of lands and plots. (c) All contracts or loans granted to them or through such officers to their children, relatives and friends." ' It was also prayed that the above files may be summoned from the Establishment and Cabinet Divisions, Ministry of Finance, Defence, Production, Prime Minister's Secretariat and Wapda relating to the period of July, 1977 to December, 1988. It seems that at the time of filing of above C.M. No,20 of 1991 or immediately thereafter, the petitioner's counsel filed C.M. Nos. 21 and 22 of 1991; by the former application, the petitioner's counsel sought summoning of the following persons as the Court's witnesses with the record mentioned therein:- (i) The President of Pakistan; (ii) The Prime Minister of Pakistan; (iii) Roedad Khan, Chief of the Accountability Cell; (iv) Mr. Fazalur Rehman, Principal Secretary to the President; (v) Secretaries of the then Chief Minister of Punjab (presently the Prime Minister); (vi) Secretaries of Lahore Development Authority and the Public Service Commission; (vii) Secretaries of the Federal Ministries of Finance, Industries, Production and Commerce; ' whereas through C.M. No, 22 of 1991, it was prayed that the petitioner be allowed to make her statement at an appropriate stage of her choosing. 6. Reference No,5 of 1990 came up for hearing on 21-8-1991 when the learned Judge disposed of the above C.M. Nos. 19 and 20 of 1991, by an order dated 21-8-1991 allowing the inspection of the following record:- (i) 18 files relating to allotment/allocation of L.P.G. Which were already shown; (ii) The files mentioned in the list annexed to C.M. No,20 of 1991; (iii) Files relating to Wak Gas, Cap Gas, Sun Line and Lub Gas. ' The inspection was to be completed by 26-8-1991. However, the learned Judge declined the petitioner's counsel's request for the following records:- "(a) All the files relating to the appointments of retired or retiring Senior Officers of the Armed Forces in various Wings of the State machinery. (b) All contracts or loans granted to them or through such officers to their children, relatives and friends. (c) All allotments of lands and plots." ' While declining the above request, the learned Judge observed that "It is apparent that this request has been made only with a view to drag the proceedings". It was also ordered that the
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learned counsel for the petitioner shall move application on 27-8-1991, if any, to point out that any of the files allowed to be examined was not made available. 7. After that, the petitioner's counsel filed following miscellaneous applications:- (i) C.M. No, 23 of 1991: ' Through this application, the petitioner prayed that if the Court was not going to postpone the hearing for recording of her statement on account of the two applications referred to therein, 15-9- 1991 be fixed in place of 17-9-1991 for recording of her statement. (ii) C.M. No, 24 of 1991: ' In this application, again request for production of the record mentioned therein and holding of an inquiry was made. (iii) C.M.No, 25 of 1991: ' By this application, it was prayed that no further proceedings in the Reference be held during the vacation of the Lahore High Court. (iv) C.M. No,26 of 1991: ' Through this application, it was prayed that no further proceedings in the Reference be held during such period of vacation of the Lahore High Court in which the learned Judge was not sitting and working as a Judge of the High Court at the principal seat of the Court. 8. It may be stated that C.M. No,25 of 1991 was dismissed by an order dated 28-8-1991, whereas C.M. Nos. 21, 22,23, 24 and 26 were taken up by the learned Judge on 1-9-1991. Upon C.M. No, 23 of 1991, 15-9-1991 in place of 17-9-1991 was substituted as was prayed for, whereas pursuant to C.M. No,26 of 1991, the Reference was adjourned to 14-9-1991. Hearing of C.M. Nos. 21,22 and 24 of 1991 was adjourned to 14-9-1991. 9. It may be observed that C.M. No,24 of 1991 referred to hereinabove was dismissed by a detailed order dated 14-9-1991 inter alia on the ground that similar request was made through C.M. No,19 of 1991, which was disposed of by an order dated 21-8-1991. The question of withholding of certain record and mala fide was also touched upon in the above order. 10. After that, the petitioner's counsel filed C.M. No,27 of 1991 on 14-9-1991, praying therein that Mr. Munir Ahmed and Mr. Sherwani, who were earlier examined as P.Ws. 1 and 3 and who filed their affidavits in support of the Referring Authority's reply to the petitioner's C.M. No,24 of 1991, be allowed to be cross-examined by the petitioner's counsel as to the contents of the affidavits. It seems that after hearing the learned counsel for the Referring Authority, the learned counsel for the petitioner did not press the same as per order dated 14-9-1991 at page 106 of the above C.M.P. No, 138 of 1991 (Also at page 97 of Vol. II). 11. Thereafter, C.M. No, 28 of 1991 dated 14-9-1991 was filed by the petitioner's counsel on 15-9-1991 praying therein that further proceedings in the Reference No,5 of 1990 be postponed as the petitioner wanted to file an appeal against the order passed upon C.M. No,24 of 1991, which was declined by an order dated 15-9-1991. Aforesaid C.M. No,21 of 1991 for summoning of the above personnel including the President and the Prime Minister, was dismissed by a separate order dated 15-9-1991. By the same order, it was held that above C.M. No, 21 of 1991 had become infructuous and was accordingly disposed of. 12. As regards the recording of the petitioner's statement, it seems that on 15-9-1991 a medical certificate was produced before the learned Judge stating therein, that the petitioner was not well. It was prayed by the learned counsel for the petitioner that the Reference be adjourned and her statement be recorded when the petitioner would return from America, which request was opposed by the learned counsel for the Referring Authority. The learned Judge, after hearing the parties, adjourned the case to 21-9-1991 with the direction that the learned counsel for the petitioner after obtaining answers to the questions which were handed over to him on 14-9-1991 in typed form at his request be obtained and be filed on 21-9-1991. It was observed that the above
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special procedure had been adopted by the Court to avoid delay which would occasion otherwise. It was also observed that earlier Reference was adjourned four times for recording of the petitioner's statement and the case was fixed for 15-9-1991 at her request for the above purpose. It was also ordered that in case the petitioner choses to produce defence evidence, a list of the witnesses should be given on the same date i.e, 21-9-1991. However, subsequently it transpired that on the above date early in the morning, the petitioner had already left Pakistan for U.SA. Which was not known even to her counsel, when they appeared in the Court on the above date. The petitioner, who was present in this Court on 12-10-1991, informed the Court through her counsel Raja Muhammad Anwar that she had kept the date of departure secret as she apprehended that she might not be allowed to leave the country as an Ordinance was being issued. 13. After that, the petitioner's counsel filed above C.M.P. No, 138 of 1991 for the transfer of the above three References from the files of the learned Judge and Civil Appeal No,190 of 1991 with the leave of this Court against the above order dated 15-9-1991 on the ground that the order of directing the petitioner to file replies to the questions instead of allowing her to make statement was illegal. 14, In support of the above C.M.P. And Civil Appeal, we heard M/s. Raja Muhammad Anwar and Aitzaz Ahsan for the petitioner, and Mr. Aziz A. Munshi, learned Attorney-General for the respondents. When we enquired from Raja Muhammad Anwar, learned counsel for the petitioner, whether the petitioner would like to make a statement orally before the Special Court or would she like to file a written reply to the questions already furnished to her counsel, he submitted that the petitioner would not like to press her aforesaid Civil Appeal No, 190 of 1991 and would like to withdraw the same, which request was granted. However, we may observe that the learned Attorney-General submitted that the Referring Authority had no objection, if the petitioner would appear in person in the Court for giving replies to the Court's questions. ' In this view of the matter, the only question for consideration before us was, as to whether the above C.M.P. Was to be allowed on the grounds urged. Upon conclusion of the arguments of the learned counsel for the parties on 16-10-1991, we passed the following short order:- "Subject to the observations and clarifications made in our detailed order, which is being recorded separately, this petition stands dismissed." ' These are the reasons with the observations and clarifications pursuant to the above short order. 15. In support of the above Civil Miscellaneous Petition, Raja Muhammad Anwar, has urged as follows:- (i) That from the manner in which the proceedings of the above References have been conducted by the learned Judge, the petitioner can have a reasonable apprehension that he is biased; (ii) That the above apprehension becomes more settled when the above manner of conducting proceedings is seen in the context of the fact that the learned Judge was confirmed without the advice of the Prime Minister by the Referring Authority/President about six months before due date; (iii) That the learned Judge was one of the Judges, who were affected by the Press Note dated 10- 3-1989 issued by the petitioner's Government, when she was the Prime Minister, resulting in discontinuation of judicial work for a week; (iv) That even otherwise, the interest of justice demanded that the References should have been heard at Karachi. ' On the other hand, Mr. Aziz A. Munshi, learned Attorney General, has submitted as under:- (i) That no prejudice or bias can be attributed to the learned Judge on the basis of the manner of conducting the proceedings as he has been fair to both the parties; (ii) That the learned counsel for the petitioner's contentions Nos.(ii) and (iii) are untenable/unfounded and in fact stand settled by the judgment of this Court in the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689);
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(iii) That the petitioner's application for hearing of the case at Karachi was dismissed by the learned Judge by his order dated 3-3-1991 and since no appeal was filed, the above ground cannot be agitated. 16. Adverting to the above first submission of Raja Muhammad Anwar, it may be observed that in support of the same, he has referred to the contents of the Memo of Petition in extenso and the various orders passed by the learned Judge upon the miscellaneous applications, particularly he has referred to para XXV of the memo of petition which summarises the grounds of bias and winch reads as follows:- "XXV. That it is the most elementary principle of justice that it must not only be done, but must be seen to have been done. It is submitted with profound respect that all the several instances submitted above, including: (a) the rejection, on presumed grounds, of the petitioner's application that proceedings be held at Karachi; (b) permitting counsel for the Referring Authority to introduce new witnesses, and material, and recording statements of such witnesses despite objection by the petitioner's counsel and before an application had been moved in that behalf; (c) presuming, against the record, that the petitioner absented herself `four times', and on that presumption adopting, admittedly, a 'special procedure'; (d) requiring the petitioner to make a statement in her defence at a stage of the proceedings not of her choice, having himself first decided that the proceedings were not a formal 'trial', but merely an 'inquiry'; (e) directing her to make her statement before even hearing arguments on the application filed by her 'seeking permission of the learned Court to allow her (the respondent) to make her statement at a time and stage of the proceedings that she considers most suitable to her defence' (CM 22 of 1991); (f) adopting two different criteria and procedures for the inquiry at two different stages of the trial; (g) allowing the prosecution to 'restructure' the Reference originally sent by the Referring Authority, during the course of the evidence on the basis of witnesses and material not originally referred and against the provisions of Article 4 of P.O. 17; (h) converting the Reference into an 'appeal' against what is alleged to be an order by the petitioner; (i) denying inspection of such record that had been made relevant to the issue involved in the trial by the prosecution itself when it introduced the witnesses, and material, not previously on the list or the record; (j) denying full inspection by not himself examining at least a sampling of the record or at least the sealed files in which grave and serious tampering had been found, and in relation to which the department had submitted contradictory and false affidavits; (k) not allowing the petitioner's counsel to cross-examine the two deponents who had submitted affidavits asserting the correctness and genuineness of the record shown despite insistence on a formal application was moved for the cross-examination; (l) relying upon the mere statements of the learned counsel for the Referring Authority who was not even present during even a minute of the inspection time, in preference to the detailed and written application by the petitioner's counsel based on the notes taken contemporaneously with the inspection (assuming that the aforesaid affidavits were not taken into consideration); (m) thereby failing to take notice of the allegation of severe and criminal tampering of the record, and doctoring of the files, despite repeated requests both in writing and orally; (a) permitting the prosecution adjournments on the same grounds on which the counsel for the petitioner were disallowed adjournments;
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(o) making such observations against the petitioner and her counsel as are not warranted by the record; (p) unlike any other Court constituted under P.O. 17, continuing to proceed with the case during the summer vacations despite information of non-availability by the counsel, and separate requests to that effect by the petitioner; (q) taking no notice of agencies caught in the process of bugging the proceedings of the Court, including the submissions of the counsel, and observations of the learned Court by means of instruments of recording; ' create a reasonable and settled apprehension in her mind that she will not get a fair, unbiased and impartial trial in the Court of Mr. Justice Rashid Aziz Khan, learned Judge, Special Court, Lahore." 17. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has submitted that the period of the proceedings commencing from 16-9-1990 and expiring on 21-9-1991 can be divided into the following four sub-periods:-- (A) The first sub-period covers the period between 16-9-1990 to 9-2-1991 ' when the Transfer Application was dismissed by the Supreme Court. (B) The second sub-period relates to the period from 9-2-1991 to 30-7-1991. (C) The third sub-period pertains to the period from 31-7-1991 to 15-9-1991; and (D) The fourth sub-period covers the period between 15-9-1991 to 21-9-1991, when the present Transfer Application was moved. 18. According to him, the above first period stood merged into the order dated 9-2-1991 passed by this Court upon petitioner's C.M.P. No, 574 of 1990 for the transfer of the case from the file of the learned Judge to the file of any Special Court functioning at Karachi particularly when it was expressly stated by the learned counsel for the petitioner that no question of bias was involved. His further submission was that during the above two sub-periods expiring on 15-9-1991, no bias was alleged and, therefore, it is not open to the petitioner to urge the same as no appeal against any order was filed. As regards the last sub-period, his submission was that from the proceedings and the orders passed during the above period, no bias can be inferred. 19. It may be convenient to take up the above quoted summarized grounds in seriatim. (a) Adverting to the grounds mentioned in sub-para. (a) of para. XXV which is also mentioned in sub-para (iv) of para 15 hereinabove, it may be observed that the learned Judge had dismissed the petitioner's application for taking up the References at Karachi instead of at Lahore by his order dated 3-3-1991 at the stage when the prosecution evidence was not concluded and the witnesses and the record were to come from Islamabad. However, since the prosecution evidence has been concluded in Reference No,5 of 1990 and is about to be concluded in Reference No,4 of 1990, it will be still open to the petitioner after filing her statement to the questions put by the learned Judge and after filing the list of witnesses to file a fresh application, which will be disposed of in…
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