1992 PLP 383 (MLD)

Art. 4

Reference

Evidence

Name could be included in the lists, to be given up at the time of evidence if the witness, for any reason, could not be produced. (g) Parliament and Provincial Assemblies (Disqualification for Membership) Order (17 of 1977)

Art. 4

Reference

Evidence

Examination of witness, limited to the documents to which he has subscribed, is not to be detrimental to a just and fair dispensation. (h) Contempt of Court

Not merely a matter between the parties even if it relates to them but is one between the Court and the alleged contemner

Court, at the same time is expected to bring a totally impersonal approach to every judicial act and cannot take sides nor can it be personally irked. (i) Contempt of Court

Comment on pending proceedings is a serious matter but even more so would be cirticism of Courts, specifically or generally

Administration of justice still requires complete impartiality and total disinterestedness. (j) Contempt of Court

Gravest act of contempt can be ignored and, where necessary, purged by tendering due apology. (k) Administration of justice

Dealing with those who are in power and out of power. Those who are in power have to be strictly dealt with when in power for otherwise the. independence and impartiality of judiciary, envisioned in the Constitution, cannot be suitably safeguarded nor the maxim, justice should not only be done but also seen to have been done, adequately addressed. The rule does not apply to those who are out of power. They have to be treated like other citizens, enjoying no privileges and, therefore, obliged to no extraordinary circumstances. Kamal Mustafa Bokhari, Senior Counsel, Aftab Akhund, A.-G., Sindh and Qurban Ali Gilani for the Referring Authority.. Abdul Hafeez Lakho and Raza Rabbani for Respondent. In these references under the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 17 of 1977 (hereinafter referred to as the Order), evidence of all the non-controversial witnesses from the side of the Referring Authority, six (6) in Reference No.l of 1990 and seven (7) in Reference No.2 of 1990 have, been recorded. It is time now to take up the several miscellaneous applications pending in the References, including those for summoning/examining additional witnesses from the side of the Referring Authority and Court-witnesses, at the instance of the respondent. Such applications in Reference No.1 of 1990 are Miscellaneous Application No.8 of 1990 for summoning Mr. Rafi Raza and Begum Abida Hussain, the then members of the Caretaker Cabinet, as Court-witnesses on the grounds, inter alia, that whereas the Referring Authority has maintained that the references have been made on the advice of the Caretaker Prime Minister the above said erstwhile Ministers have made public statements, giving the. impression that accountability has been initiated and conducted by the President personally with the assistance of the Caretaker Minister Without Portfolio; Miscellaneous Application No.13 of 1990 seeking to place on record letter dated October 3, 1990 addressed by the Chairman WAPDA to Mr. Sardar Farooq Ahmed Khan Leghari, Minister for Water and Power in the then P.P.P. Government; Miscellaneous Application No.14 of 1990 for examination of Zahid Ali Akbar Khan, Chairman WAPDA, for deposing on the facts of the case and proving documents; Miscellaneous Application No.15 of 1990 for examination of R.A. Akhund, Secretary, Economic Affairs Division, Ministry of Finance, Government of Pakistan, who at the time of submission of list of witnesses for the Referring Authority was abroad but has since become available. In Reference No.2 of 1990 the miscellaneous applications are: Miscellaneous Application No.l of 1990 from the side of the respondent seeking the examination of the aforementioned Caretaker Ministers on identical grounds; Miscellaneous Application No.16 of 1990, again from the respondent, praying that the then Caretaker Prime Minister, Mr. Ghulam Mustafa Jatoi, be proceeded against for contempt for having made some public statements commenting on facts in the Reference, Miscellaneous Application No.17 of 1990 for the examination of RA. Akhund, Secretary, Economic Affairs Division, Ministry of Finance, Government of Pakistan, on the same ground and for the same reasons as abovementioned; Miscellaneous Application No.l of 1991, at the instance of the Referring Authority, for action due to delay allegedly occasioned in the proceedings of the References; Miscellaneous Application No.2 of 1991 on behalf of the Referring Authority for substitution of Turab Haider Zaidi, the then Deputy Secretary, Ministry of Commerce, by Naseem Ahmed Qureshi, Joint Secretary in the same Ministry to appear as witness and to produce the relevant record. In relation to the consideration of the cited applications the questions, which arose and which were touched upon, involve the scope of jurisdiction of this Court and also whether the pending proceedings were civil or criminal in nature. Arguments were heard at length on these aspects. Before dilating upon each of the above said applications, it appears proper that the questions of law be approached straightaway. In so far as the powers of this Court, including those for summoning witnesses are concerned. Article 6 of Presidential Order No.17 of 1977 is explicit and provides that a Special Court shall have powers of a Civil Court trying a suit under the Code of Civil Procedure in respect of summoning and attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavits, issuing commissions for the examination of the witnesses or documents and requisitioning any public record or copies thereof from any Court or office. Under the same Article a Special Court also has power to require any person, subject to any privilege which may be claimed by that person under any law, to furnish such information as in the opinion of the Special Court be of assistance to it in carrying out an inquiry under the Order. The proceedings before a Special Court are deemed to be judicial proceedings for the purposes of Chapter XI of the Pakistan Penal Code. Clause (4) of the same Article envisions that notwithstanding anything contained in any other law for the time being in force a Special Court has power to conduct its proceedings and regulate its procedure, in all respects, as it deems fit including, in particular, the power to refuse to examine any witness or summon any document. A Special Court, pursuant to Article 6(6), also has power of a High Court to punish its own contempt. In the background of the legislation there are well defined parameters within which this Court has to operate. It is clear that it has the powers of a Civil Court to summon witnesses and records and to obtain information even from persons who are endowed with any privilege conferred by law. Because a Special Court is competent to regulate its own procedure in all respects, as it deems fit, the implication is that while the Court has the relevant power of a Civil Court it does not suffer from any detriment for the lack of it, which may attach to a Civil Court. At the same time, in the conduct of proceedings before it while regulating its own procedure in the way it deems fit the Special Court is not provided with any licence to act in any manner which is unjust or oppressive or opposed to the norms observable in judicial proceedings. Coming to the nature of proceedings in this Court, the statutory invocation of powers of a Civil Court does not appear to control the character of the jurisdiction vested here. Such seems to be a conferment of convenience, specific to facilitation for the recording of evidence, without any implications of affecting the nature of the jurisdiction. Clearly the attributes of the statute under which this Court functions and the serious action of a penal nature, if invocable and warranted, the legislation contemplates, have few elements of a civil proceeding. The rules which have been framed under the enactment, corresponding to Article 4(3) in the Order, even contemplate the communication of a charge to the respondent at the outset of the LIS. Obviously therefore, the jurisdiction has to be of the criminal genus though it seems to be untrammelled by any rules in the Code of Criminal Procedure, leaving it open to the Special Court to regulate its proceedings in a just, fair and lawful manner and observing due canons as to burden of proof which must lie on the authority bringing the charge, occasioning proof, beyond reasonable doubt, the benefit of doubt, if any, falling within the entitlement of the person proceeded against. The last would be an obvious departure from proceedings of a civil nature, which with varying rules as to burden of proof, are usually to be decided on preponderance of evidence. For the very reason, not unlike all penal measures, law in the order has to be strictly construed. If authority; as to the nature and scope of such-like proceedings, is to be sought that is readily available In the matter of: Khan Iftikhar Hussain Khan Mamdot P L D 1950 Lah. 12, a Division Bench of High Court of Lahore, comprising Muhammad Sharif and Cornelius, JJ., interpreting the Public and Representative Offices (Disqualification) Act, 1949, (PARODA), in somewhat similar legislative circumstances, opined that the inquiry under the Act, in view of the penalties provided, was of a criminal nature and because the powers, subject to some limitations, were being exercised in the Criminal Jurisdiction of the High Court procedure for trial of summons cases was more convenient. At the level of the Federal Court in Hameedul Haq Chaudhry v. H.E. The G.G. of Pakistan P L D 1953 FC 279, when the ambit of jurisdiction under the same legislation came up for consideration it was concluded that while the inquiry was a judicial one, involving substantially the applicability of the Code of Criminal Procedure, such was still advisory in character because punishment, if, any, rested only with the Governor-General. No appeal, therefore, was found to lie in the Federal Court. A Special Court, under the present dispensation being invested with powers also to levy punishment, its orders open to appeal in the Supreme Court, there are stronger reasons to deduce that the inquiry under the Presidential Order is of a criminal; genus and, subject to discretion purely of a judicial nature, all principles, specially or generally, applicable in that behalf may, if relevant, be appropriately drawn upon in this Court. Reverting to the examination of further witnesses from the side of the Referring Authority and production of additional documents, Mr. Kamal Mustafa Bukhari, Senior Counsel for the Referring Authority, has urged that while this Court can exercise powers of a Civil Court for summoning of witnesses and production of documents it is not subject to any restrictions attaching to a Civil Court, having been empowered to conduct these proceedings and regulate its procedure as it deems fit. Even otherwise, according to the learned counsel, the restriction as to submission of lists of witnesses within seven days of the framing of issues in the terms of Order XVI, Rule, 1, C.P.C. is not attracted to these proceedings and besides Order XVIII, Rule 4 of the Code allowing the Court to examine the witnesses in attendance, remains uncontrolled by anything which the Law Reforms Ordinance, XII of 1972, has introduced in the concept of Order XVI, Rule 1 of the Code of Civil Procedure. In support are cited Crescent Films v. Shah Noor Films Ltd. PLD 1978 Lah. 721 and Abdul Hameed v. Muhammad Fayyaz NLR 1980 UC 323, both decided by M, Afzal Zullah J., as he then was, observing that the Court has wide discretion to examine witnesses outside the list and even without a list contemplated in Order XVI, Rule 1 of the Code of Civil Procedure but reasons for so doing are to be recorded and the Full Bench case of the Lahore High Court reported as Ghulam Murtaza v. Muhammad Ilyas, PLD 1980 Lah. 495, opining that the restriction as to witnesses imposed through Order XVI, Rule 1, of the Code, applies only to those as are sought to be summoned, beyond time, under the authority of the Court but others, who are not named in the list furnished under that provision, may be examined if produced in Court and made available for due examination without necessitating delay for summoning them. Learned counsel is right on both counts but, in this Court, subject to a very pertinent rider: While the rigours attached to proceedings governed by the Code of Civil Procedure do not apply in this jurisdiction no laxity in procedure, unless conducive to and in the interest of justice is to be countenanced either. Thus Mr. Abdul Hafeez Lakho has correctly pointed that, at the commencement of proceedings, when a reference is received from the President, the Special Court under Article 4 of P.O. 17 of 1977 is required to scrutinise the necessary records relating to the charge mentioned in the reference and if no charge can thereby be established the reference is to be returned whereas in other cases notice is to go for showing cause as to why: the Court should not proceed against the respondent in relation to the acts complained of. In case the reference is returned any subsequent submission on the same questions (charge) is barred except so far as the subsequent reference, if any, be in respect of matters (charge) on which no opinion has previously been rendered by the Special Court. It is thus manifest that the proceedings in a reference are to be confined to the charge levelled thereunder and at the initial stage the Special Court can resort to the record placed before it pertaining to the reference or any other connected record which may not have been so placed but is found to be otherwise relevant. In other words, a Special Court is essentially confined to the averments in the reference and the cognate record, which may be augmented and corroborated by oral testimony, more so following upon the notice, as an overall reading of the statute would suggest. The conclusion is fortified on the language in Rule 4 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990, which envisages that a reference shall consist of a concise statement of the material facts on which the Referring Authority is satisfied that there are reasonable grounds for believing that an act of misconduct has been committed, by the respondent; subject to the Referring Authority submitting, at any stage of the proceedings, such further material as may subsequently become available in support of the act of misconduct to which the reference relates or making a reference with regard to any other act of misconduct on which the Special Court has not expressed an opinion, if another reference has been returned under paragraph (a) of clause (3) of Article

4. Accordingly, while relevant record can be produced or can be directed to be produced at every level, yet `further material as may subsequently become available in support of the act of misconduct to which the reference relates' alone, as distinguished from that which existed prior to the making of the reference can be adduced. In essentials, therefore, the inquiry has to be focussed on the act of misconduct on the facts spelled out in the reference and, subject as above, nothing beyond such facts and such act can be looked into and pre-existing material, if not relied upon or produced at the time of making the reference, can be produced only if it is part of the record of the Referring Authority and not otherwise. Confronted with these propositions, Mr. Kamal Mustafa Bukhari has contended that the object of additional witnesses is not to introduce any fresh material,-but only to, support and prove that which has always subsisted and already been produced and besides such material does not travel beyond the framework of the reference. Learned counsel for the Referring Authority has further maintained that he would be satisfied if only the relevant documents, for proving which the witnesses are sought to be examined, are accepted in evidence because such witnesses are cited as Law requires leading of primary evidence which, in the context of the author of a document, implies the examination of its author, if otherwise available. The legal requirement is correctly emphasised. Now, while the Special Court, notwithstanding anything contained in any other law for the time being in force, is competent to conduct its proceedings and regulate its procedure in all respects as it deems fit, the Qanun-e-Shahadat, 1984, is a subsequent legislation and has followed, in the wake of the Presidential Order, in 1984 and applies to all judicial proceedings in or before any Court, including a Court Martial, a tribunal or other authority, exercising judicial or quasi judicial powers or jurisdiction, excepting arbitrations and also contains a non obstante clause in its Article 165, ordaining that the provisions of such Order shall have effect notwithstanding anything contained in any other law for the time being in force. In the presence of two distinct non-obstante clauses in either legislation, it must be assumed that the Legislature has not acted in oblivion of the earlier Legislation on the' subject, namely, P.O.17 of 1977, and by inserting the non obstante clause in the Qanun-e-Shahadat, 1984,: intended an overriding operation of Article 165 1 supra, irrespective of what was contained in any other law. Where two statutes; cover a common field, either containing mandates, conflicting with each other, the mandates in the enactment, later in time, unless a contrary intention appears, are to prevail. The provisions of Qanun-e-Shahadat, 1984, thus would apply with all force to the proceedings under President's Order 17 of 1977 and this Court, irrespective of its wide powers, is bound to observe the rules of evidence as enshrined in the Order of 1984. In the foregoing situation, Mr. Abdul Hafeez Lakho has elaborated that the intent behind the objections is not to seek shutting out of facts but only to prevent a twist and, foreclose any motivated or partisan evidence. He has correspondingly conceded that while the documents, which are sought to be? produced now, subject to their relevancy, may be entertained in evidence and may also be admitted for being exhibited such should be confined only to the authorship thereof and the bare contents therein thus making the formality of production of their executants unnecessary. This could have served the purpose but upon such production in this manner Mr: Abdul Hafeez Lakho makes an important reservation. He says that even this exercise would not amount to accepting the correctness of that which is contained in these documents and besides no implications may be inferred following cognate admission in evidence. This is not acceptable to Mr. Kamal Mustafa Bukhari. It, therefore, becomes necessary to see as to what is the effect of the production and exhibition of a document and whether that should suffice for the purposes presently being mooted. It is by now well-settle: that even where a document is admitted in evidence and duly exhibited, that incident, in itself, does not constitute the proof of truth or veracity of the contents, though contents themselves simpliciter would thereby be proved and that may be all which is needed in a given case, for instance, where the document contain recitals or stipulations or conditions applicable to parties to a dispute, such as, an agreement, a deed inter parties or other bilateral arrangement. When a document is produced through its author or in any other permissible mode and exhibited in due course, the author or the witness producing it is open to cross-examination and the correctness of the contents may be questioned or denied through cross-examination or other evidence, failing which even that could be - deemed established. Likewise, the mere fact that a document has been duly proved and exhibited will not establish its relevancy, for relevancy is a concept of law arising in given facts: Similarly, relevancy and proof of a document while such in themselves are different in character,? they, at the same time, usually, do not' involve any implication that either of them constitutes proof of correctness or veracity of a document, which must be separately established through oral evidence in an appropriate manner. Even where a document is admitted in evidence by consent, in any permissible mode, that' circumstance constitute only a waiver as to the admissibility thereof though admission in evidence without reservations, may also imply acceptance of correctness of contents. Relevancy, however, is always subject to the facts of a case and conditionalities of law. In the context of the foregoing analysis, some case-law, largely cited by the learned counsel, may now be referred. Thus in Judah v. Isolyne Bose AIR 1945 Privy Council 174, the Judicial Committee considered the effect of two telegrams and a letter. Regarding the first of these they expressed surprise as to how the telegrams were admitted in evidence for such were not produced by the addressee but by a party to the proceedings, who gave no particulars as to how she came by them nor was it proved as to who was the sender, the assumed sender, in evidence, denying having despatched them. As 'to the intrinsic value of such telegrams and letter, the last of which was apparently duly exhibited, it was said that neither the letter nor the contents of the telegrams were evidence of the facts stated therein and the only use to which the letter could be put would be to discredit the writer, who was examined in evidence herself, if what she had written there was inconsistent with her evidence. Lionel Edwards Ltd. v. State AIR 1967 Calcutta 191, opines that when a document is marked on admission, without reservation, the contents are not only evidence but are taken as admitted, the result being that the contents cannot be challenged either by way of cross-examination or otherwise. However, in respect of documents, marked on admission, only dispensing with formal proof, the contents are evidence, though the party admitting does not thereby accept the truth thereof and is free to challenge the contents by way of cross-examination or otherwise. The Supreme Court of Pakistan in Bengal Friends & Company v. Gour Benode Shah & Company PLD 1969 SC 477, examined the effect of entries in Books of Account, kept in regular course of business, which are made relevant under Article 48 of the Qanun-e-Shahadat, 1984 (section 34 of the Evidence Act, 1872, then applying) and comparing the same with the effect of certified copies of enters under the Bankers' Books Evidence Act, came to the conclusion that mere production of the Accounts Book does not constitute evidence of the transaction and accounts therein recorded. For so doing it was necessary that the enters were in the handwriting of the relevant witness and "he swore to the correctness of the transactions mentioned therein". Haji M. Zakaria v. Province of Sindh 1981 CLC 605 is a Division Bench case from Sindh, where it was held that in terms of section 60 of the Evidence Act (Article 71 in the Qanun-e-Shahadat) a telegram and a newspaper, respectively, could not be admitted in evidence and contents thereof could not be proved unless the sender or appropriate witness was examined in support. In Abdul Razzak v. Fatima Bai 1981 CLC 1083, Zaffar Hussain Mirza, J., in the context of absence of objection to the admissibility of an acknowledgement receipt, observed that the respondent at the time of its admission did not assert that the appellant had signed it and the service of notice, covered by the acknowledgement, being an issue, mere absence of objection to reception in evidence did not constitute estoppel against the appellant because by raising issue of non-service of notice necessary objection, as to not signing the acknowledgement always subsisted on record. In other words, in such circumstances effect of the document could always be challenged on the state of record. In Agro Marketing Corporation Limited v. Pakistan PLD 1982 Lah. 20, M. Afzal Lone, J., then in the High Court, opined that it was an error to assume that section 67 of the Evidence Act, 1872 (Article 78, Qanun-e-Shahadat) prescribes any particular kind of proof of execution of a document, and a Court, keeping in view circumstances of each case, may allow to adopt any reasonable mode of proof, recognised by the Evidence Act. It was thus not always necessary that for a document to be receivable in evidence its author should enter the witness-box, since the only requirement of section 67 was that writing or signature on a document to be proved should be that of the executant, the mode of proof being left to be governed by the provisions of the Evidence Act, 1872. It was similarly a wrong impression that contents of a document cannot be severed from the signatures appended thereon and that proof of signature fully proves its contents as well. Likewise, evidentiary value of a document does not affect its admissibility or vice versa. As to what weight is to be attached to a document and whether or not contents also stand proved upon proof of signatures are matters, according to this view, which must be decided by the Court in the light of facts and circumstances of each case. Ishwar Das v. Deputy Settlement Commissioner, Mirpurkhas 1985CLC 1385, is again a case from Sindh jurisdiction, where it was held that proving of a. document is one thing but proving execution thereof is quite another. Therefore, if a document by order of the trial Court stands marked as an exhibit and thus proved in evidence such would not automatically mean that the document also stands proved to have been executed by the purported executants. In this state of law the concession of Mr. Abdul Hafeez Lakho as regards admission of authorship and * bare acceptability in evidence of documents will, hardly be enough. The applications for examination of additional witnesses and production of documents, therefore, have to come up for consideration on merits. It has already been found that the restrictions as to submission of lists and time under Order XV1, Rule 1, C.P.C. do not apply to the citation and production of witnesses in references arising under President's Order 17 of 1977. All that has to be seen is whether there is any element of delay within the terms of the Presidential Order; and if so an undue one and further whether there is relevancy in line with the statements of fact appearing' in the reference. To this, if there be delay, may be added another factor, namely whether the acceptance of such evidence, oral or documentary as the case may be, is or is not likely to lead to distortions of facts. As to the element of time, these References were lodged on 10-9-1990, list of witnesses in either 'reference for the Referring Authority was submitted on 10-10-1990, pursuant to an order, dated 7-10-1990, evidence commenced on 16-10-1990 and the National Elections were held on 24-10-1990. In this sequence of events the applications pertaining to the examination of additional evidence are to be viewed. Through Miscellaneous Application 15/90, filed on 22-10-1990 in Reference No.l/1990, RA. Akhund, Secretary, Economic Affairs Division, Ministry of Finance, Government of Pakistan, is projected as a witness. This witness is concerned with Exhibit `X' in Reference No.l/1990, the summary for the E.C.C. meeting dated 8-8-1990, which he signed. Such document was admitted and exhibited, subject to objection, on 22-10-1990 in the evidence of Sultan Ahmed, Reference Witness No.4. Corresponding application in Reference No.2/1990, pertaining to R.A. Akhund, is Miscellaneous 17/90, also submitted on 22-10-1990 and the documents concerning him are Exhs.A?I & H', respectively. Exh. A I, subject to objection, was produced by Reference Witness No.2, Muhammad Hafeez and is a letter, dated 3-9-1990 addressed by RA. Akhund to Fazlur Rehman Khan, Secretary to the President, whereas Exh. `H' is a report dated 29-5-1990 signed by RA. Akhund, Secretary Finance and Saeed Ahmed Qureshi, Secretary Commerce. The report was exhibited through Muhammad Anwar, Reference Witness No.3 in Reference No.2/1990. The reason given for not including the name of R.A. Akhund in the lists of witnesses, pertaining to the two References, is that such witness, at the relevant time, was abroad. This is hardly a reason because the name could be included in the lists, to be given up at the time of evidence if the witness, for any reason, could not be produced. Mr. Abdul Hafeez'Lakho as regards Exh. `H' has also urged that there were two signatories to that report and one of them, Saeed Ahmed Qureshi, could always be cited and produced as a witness. As to delay, that does not seem to be an inordinate one though the-Rules under the Order contemplate a day-to-day hearing, but that has been found to be directory rather than mandatory. What is mote important is that the documents and the facts to which this witness pertains are relevant. Besides, there does not seem to be any likelihood of the witness twisting facts as, inter alia, during the intervening period his status in the governmental machinery has remained virtually unaltered. Further, he is to produce no new material which is not already on record. I am, therefore, inclined to view that the examination of this witness, limited to the documents to which he had subscribed, should not be detrimental to a just and fair dispensation. Miscellaneous 15/90 in Reference No.l'/1990 and Miscellaneous 17/90 in Reference No.2/1990 are, accordingly, allowed. Next may be considered Miscellaneous 13/90 and Misc. 14/90, each in Reference No. 1/1990, the first for the production of a letter, dated 3-10-1989, written by Zahid Ali Akbar Khan, Chairman WAPDA, to Sardar Farooq Ahmed Khan Leghari, the then Minister for Water and Power, Government of Pakistan and the second for the production and examination of the said Zahid Ali Akbar Khan to depose about facts and prove documents. Both these applications were submitted on 22-10-1990 and were necessitated because neither the letter, dated 3-10-1989 was relied upon in the reference nor the proposed witness was indicated in the list of witnesses. As in relation to witness R.A. Akhund there does not appear to be an undue delay in making the request. However, no reason whatever, except that the witness was unavailable at the time of submission of list is given. That is hardly any reason. On relevancy, the letter dated 3-10-1989, aforementioned, regarding which, apparently, the proposed witness would essentially depose is a pre-emptive caveat against the appointment of Bashir Ahmed Chaudhry as Managing Director of K.E.S.C. in place of S.T.H. Naqvi (appointment itself according to the Reference being dated 6-11-1989) and indicative of a possible tilt of the writer for giving the consultancy contract in dispute in the Reference to M/s. Lehmeyar International as, inter alia, in spite of equivocal language, paragraph 9 of such letter may suggest, a line distinctly taken in cross-examination from the side of the respondent. This is more so as M/s. Fichtner and M/s. Lehmeyar alone are focussed in such letter, the first being thoroughly discredited and the three other short-listed firms not being mentioned at all. In addition, the two Annexures to this letter do not also appear to -have been submitted nor what happened to it at the end of Government is indicated. Even otherwise, Mr. Abdul Hafeez Lakho has pointed out that the writer refers to late Zulfikar Ali Bhutto in the letter as "Shaheed" Zulfikar Ali Bhutto an epithet modelled to please the then People's Party Government in power and allegedly implying a bent of mind disposed to prevarication. The objection stands out when the context is writer's criticism of Bashir Ahmed Choudhry on identical grounds of purportedly feigning student days' acquaintance with Mr. Bhutto and referring to the latter as "Shaheed". These are weighty matters and cannot be ignored. Besides and this is crucial, it is not the case of the Referring Authority here that Bashir Ahmed Chaudhry was mala fide appointed as Managing Director of the K.E.S.C. or that the respondent had anything to do with it; nor the letter in question was addressed to the respondent and nothing has been shown or urged before me to indicate that it was ever brought to her notice. Above all, in the absence of any reason for earlier non-availability of the witness, what makes the projected deposition suspect is the fact that if the witness had been cited in the list and examined before the National Elections on 24-10-1990, when the prospect of People's Party Government being rein ducted into office could not be ruled out, the situation may not have been entirely acceptable to the witness and this may not be a remote premise why the witness was non-available for being included in the list of witnesses. In comparison, mere citation as a witness on 22-10-1990 and no prospect of examination before the National Elections could be more convenient and palatable. For all these reasons, I am not persuaded, at this stage, to allow the examination of Zahid Ali Akbar Khan. However, in view of the concession of Mr. Abdul Hafeez Lakho, the letter, dated 3-10-1989 is to be admitted in evidence but only as regards, its execution, despatch to the addressee and contents but subject to relevancy and proof of the truth of recitals therein. Miscellaneous 13/90 and Miscellaneous 14/90 stand disposed of thus. This brings me to Miscellaneous 2/91 in Reference 2/1990 where under witness Turab Hyder Zaidi, Deputy Secretary, Ministry of Commerce, who has apparently discontinued in the meantime is sought to be substituted by Nasim Ahmed Qureshi, Joint Secretary in the same Ministry. This application even though submitted on 1-10-1991 cannot be termed belated because the evidence was on till then and the witness sought to be substituted had become non-available in the meantime. This application also does not involve any question as to relevancy because the witness would produce the record and be confined in evidence to such record. This application is allowed. Miscellaneous 1/91 in the same reference, for action according to law in the context of alleged delay in the proceedings against the respondent, is deferred by mutual consent of the learned counsel. Now may be taken up Miscellaneous 8/90 in Reference No.l/1990 and Miscellaneous 11/90 in Reference No.2/1990, both seeking the summoning of the then Caretaker Ministers M/s. Rafi Raza and Abida Hussain on account of contradictions in their public statements regarding the modalities followed by the Referring Authority in making these References, the Presidential stand being that the references were occasioned on the advice of the then Prime Minister and such Ministers maintaining allegedly that accountability was initiated and conducted by the President personally with the assistance of the Caretaker Minister Without Portfolio. These applications are not pressed from the side of the respondent. Such are dismissed as not pressed. Lastly would arise for consideration Miscellaneous 16/90 in Reference No.2/1990 under Article 6(6) of P.O. 17 of 1977 read with section 3 of the Contempt of Courts Act. This application, moved on 16-10-1990, seeks action in contempt against Mr. Ghulam Mustafa Jatoi, Chairman N.P.P., a candidate of LJ.I. in the National Elections of October 24, 1990, and the then Prime Minister of Pakistan, for having made statements, as reported in the print media on 13-10-1990, more specifically an observation regarding alleged misconduct of the respondent to the effect "that just in one deal of a cotton contract Benazir Bhuto issued orders to accept the tender of a favourite which caused the country a loss of Rs.300 million". Such was a comment on the proceedings pending in this Court and in fact a conclusion pertaining to the same and, therefore, upon the application in question, notice to the then Prime Minister on 16-10-1990 itself was ordered. This application, alongwith others, has been pending since because there was an order that all applications would be taken up together, after the undisputed evidence for the Referring Authority was concluded. On being taken up, the respondent does not want to press the application. Contempt is not merely a matter between the parties even if it relates to them but is one between the Court and, the alleged contemner. At the same time, a Court is expected to bring a totally impersonal approach to every judicial act; it cannot take sides nor can it be personally irked. Comment on pending Court proceedings is a serious matter but even more so would be criticism of Courts, specifically or generally. Still administration of justice requires complete impartiality and total disinterestedness. For these reasons gravest acts of contempt can be ignored and, where necessary, purged by tendering due apology. In this instance, the respondent does not wish to press her application. There is no reason why any further action be contemplated. The important thing is that when action was' claimed and warranted notice was forthwith ordered to the then sitting Prime Minister. A salutary judicial approach has always been that those who are in power have to be strictly dealt with when in power foe otherwise the independence and impartiality of judiciary, envisioned in the Constitution, cannot be suitably safeguarded nor the maxim, justice should not only be done but also seen to have been done, adequately addressed. The rule does not apply to those who are out of power. They have to be treated like other citizens, enjoying no privileges and, therefore, obliged to no extraordinary circumspection. The application, therefore, is dismissed as not pressed. M.B.A./P-224/K????? ??????????????????????????????????????????????????????????????????????Order accordingly.