Summary: (a) Ehtesab Act, 1997—Ss. 3(1)(a), 3(1)(d), 4(2), 15(1)—Corruption and corrupt practices—Award of contract in exchange for kickbacks—Prime Minister and spouse implicated—Proof through foreign and local evidence - Reference filed under S.15(1) of the Ehtesab Act, 1997 against Mohtarama Benazir Bhutto, Ex-Prime Minister of Pakistan, Senator Asif Ali Zardari, and others alleged that a pre-shipment inspection (P.S.I.) contract was awarded to M/s. SGS S.A. in exchange for illegal gratification in the form of kickbacks at 6% of contract value. Evidence included: (i) financial documents from Swiss authorities, (ii) remittances from SGS to Bomer Finance Inc.—an offshore company controlled by Asif Ali Zardari through Jens Schlegelmilch, (iii) hand-written ledgers, (iv) hotel bookings paid by Prime Minister House, and (v) presentations manipulated to justify the scheme. It was established that the accused abused their public offices to facilitate the award, concealing SGS's past failures and bypassing objections of Law Division and Customs. Held, sufficient material existed to charge both accused with offences under S.3(1)(a), 3(1)(d) and 4(2) of the Act. (b) Constitution of Pakistan, 1973—Arts. 4, 9, 12 & 175—Protection against retrospective punishment—Due process and fair trial—Jurisdiction of Ehtesab Courts - It was contended that the trial violated constitutional guarantees including Art.12(1) (retrospective penal legislation), and Arts. 4 & 9 (due process and liberty). Held, no violation occurred; the acts of awarding contracts in return for pecuniary advantage were punishable under prior anti-corruption laws (P.O. Nos. 16 & 17 of 1977). Trial under the 1997 Act, therefore, did not infringe Art.12. Further, the Ehtesab Court was validly established under law and followed due process. (c) Criminal Procedure Code, 1898—Ss. 265(F), 265(K), 340(2)—Qanun-e-Shahadat Order, 1984—Arts. 72, 74, 75, 76, 78, 85, 88–90—Admissibility of foreign documents—Certified copies from Swiss judicial authorities—Presumption of authenticity - Swiss judicial proceedings under mutual legal assistance yielded key documents: contracts, correspondence, bank transactions, and fiduciary instructions proving the kickback trail. Objections were raised to their admissibility on the ground that proceedings before the Swiss Judge were investigative and not judicial. Held, Swiss examining magistrate functioned in a judicial capacity; certified copies obtained from him were admissible under Articles 85, 87, 88, 89 & 90 of the QSO, 1984. The Court also relied on the presumption of genuineness under Art. 90. Commission was rightly issued to verify the signatures and certification of foreign records. (d) Burden of Proof—Failure of defence to rebut prosecution evidence—Adverse inference under Art.129(g), QSO—Defence witnesses not produced—Foreign witness absent - Accused failed to produce any defence evidence despite being given multiple opportunities as directed by the Supreme Court. Mohtarama Benazir Bhutto did not record her statement under S.340(2), Cr.P.C. as scheduled, nor led any witnesses. Asif Ali Zardari’s nominated foreign witness failed to obtain a visa despite Court facilitation. Held, adverse inference under Art.129(g) QSO was drawn. Prosecution’s circumstantial and documentary evidence remained unrebutted. (e) Role of fiduciary agents—Money laundering—Offshore companies—Indirect benefit to public officeholders—Foreign remittances traced - Mr. Jens Schlegelmilch, acting as fiduciary agent, used offshore entities (Bomer Finance Inc., Mariston Securities, Nassam Overseas) to receive and distribute kickbacks. Accounts were jointly operated for benefit of Mr. Zardari and Ms. Bhutto. Ledger entries and remittance documents confirmed receipt of funds from SGS. Swiss magistrate found prima facie damage to Pakistan due to corruption of the accused. Held, fiduciary structure was deliberately used to conceal bribe proceeds. (f) Accountability—Executive acts vs. personal liability—Collective decision of Cabinet not shield for criminal acts—Ministerial discretion misused - It was argued that the P.S.I. contract was granted by a Cabinet Committee and not unilaterally by the Prime Minister. Held, even if Cabinet was involved, personal misuse of authority for private gain rendered actions criminal. Collective decision-making does not immunize individual culpability when dishonest motives are proven. (g) Evidence—Statements and conduct of co-accused—Inference from official hospitality, records, and repeated visits—Proof of nexus - Visits of Jens Schlegelmilch to Pakistan, payment of hotel bills by PM Secretariat, and documented access to PM House reinforced the nexus between fiduciary agent and the accused. Schlegelmilch’s direct correspondence with SGS, ledger entries detailing 50-50 share of remittances between Bhutto and Zardari, and fiduciary mandates executed in his name corroborated the allegations. Cited Cases: Mohtarama Benazir Bhutto v. State, 1999 SCMR 1447 Safdar Ali v. Crown, PLD 1953 FC 93 S.M. Zaheer v. Syed Fazal Ali Ajmeri, 1974 SCMR 490 E.A. Evans v. Muhammad Ashraf, PLD 1964 SC 536 Karamat Ali v. Muhammad Younis, PLD 1983 SC 191 Sh. Sardar Ali v. State, PLD 1987 Lah. 633 State v. Muzaffar Hussain, 1998 MLD 118 Gustad Maneckji Shekdar v. State, PLD 1959 Dacca 756 Disposition: Prosecution established sufficient grounds for framing of charges against both accused under the Ehtesab Act, 1997. Defence failed to rebut allegations. Documents admissible. Reference allowed to proceed.

Summary: (a) Criminal Procedure Code, 1898 --- Ss. 540, 94 & 265-F(7) --- Power to summon material witness --- Accused’s right to summon witness and documents --- Refusal by trial Court without valid reasons --- Effect Where the accused applied under Sections 540, 94, and 265-F(7) Cr.P.C. for summoning the Control Room Wireless Operator/Moharrar along with the Control Room register containing Rapts made between 9:00 a.m. to 12:00 p.m. on the day of the incident, the trial Court erred in dismissing the application without recording cogent reasons. Under Section 265-F(7), the Court “shall” issue process unless it finds the request vexatious or intended to delay proceedings — refusal is to be an exception, not the rule. Similarly, Section 540 empowers the Court to summon any person whose evidence is essential for a just decision. In the instant case, such evidence could have clarified material facts and possibly affected the outcome; the trial Court's failure to exercise its discretion judiciously amounted to a material irregularity. (b) Evidence --- Qanun-e-Shahadat Order, 1984 --- Art. 24 --- Relevancy of facts not otherwise relevant --- Rescue 15 call logs as inconsistent fact --- Admissibility The requested Rescue 15 call records/Rapts from the Control Room, though not part of the initial prosecution case, were held to be relevant under Article 24 of the Qanun-e-Shahadat Order, 1984. Since they may reveal inconsistencies with the prosecution’s version—such as the absence of the petitioner’s name in initial calls—they could make the existence or non-existence of material facts highly probable or improbable. Thus, their production was necessary for fair adjudication and could not be denied merely on procedural grounds. (c) Criminal trial --- Judicial discretion --- Duty of Court to avoid miscarriage of justice --- Scope of intervention in revision The Court observed that the primary aim of criminal adjudication is the administration of justice. The trial Court’s refusal to summon a potentially material witness and document—without recording any legal basis—amounted to a failure to exercise discretion judiciously. Referring to PLD 1960 SC 387 and 2003 SCMR 1419, the High Court reiterated that the power under Section 540 Cr.P.C. must be used to prevent miscarriage of justice and to obtain the best possible evidence. Revision jurisdiction was rightly invoked to correct the procedural error. Disposition: Revision petition accepted. Impugned order dated 17.05.2025 set aside. Trial Court directed to summon the Control Room Wireless Operator/Moharrar along with the relevant Rapts as Court witness under Section 540 Cr.P.C. and record testimony in accordance with law.