Chief Justice observes nation has not accepted ZAB case's verdict

Chief Justice Iftikhar Muhammad Chaudhry has said that verdict on Zulfiqar Ali Bhutto case has not been accepted by the nation and the same is not being quoted by the lawyers in cases of similar nature. Justice Chaudhry while addressing Babar Awan, government lawyer in the case, said that even the apex court had not relied upon this judgement in different cases, as there was split judgement.
An eleven-judge special bench headed by Chief Justice Iftikhar Muhammad Chaudhry was hearing a presidential reference, sent by President Zardari, seeking its opinion regarding revisiting Bhutto case, here on Tuesday. The CJP asked the lead lawyer in the case that the President had used the word 'revisit' in his reference but the impression was not clear what the president really wanted. He asked the lawyer to guide the bench over the issue of 'revisiting or reopening' of all the three verdicts.
The lawyer was advised by CJP to assist the bench so that it could be in a position to decide the case according to Article 186 of the constitution as this huge responsibility rested upon his shoulders alone being the lead lawyer in the case.
"If we reopen the case, it would become a precedent and a number of condemned prisoners or even relatives of those who had been hanged during martial law regimes will start approaching the President with requests to send their references to the apex court," he observed. On this, the lawyer said the word {revisit} was intentionally used in specific perspective. The phrase is chosen as review/reopening has the constitutional remedy, he explained, but subject to limitations.
Rules are hereby made by the Supreme Court, he said, adding that though they are by-product of the constitution and if the word reopening was used instead of 'revisit,' it would be subject to limitations. Justice Chaudhry asked the counsel that what should be end result of the reference over the issue, as in countries like Turkey and South Africa, legislation was done and decided cases were reopened.
The lawyer, in his arguments, told the court that the reference was filed, seeking the opinion of the apex court under its advisory jurisdiction 'if any'. He contended that there was no constitutional bar on the court to 'revisit' any reference or case while on the other hand, the issue of 'review' had stringent laws in its support.
This prompted Justice Nasir-ul-Mulk, a member of the special bench that to reach some logical conclusion, "could the president ask the apex court for a review under Article 188 of the constitution." The lawyer quickly replied that the president knew that repercussions of all these provisions hence he had carefully chosen this phrase {revisit}. Justice Jawwad S Khawaja, another member of the 11-judge bench, said that there were certain things in the verdict where norms of justice might not have been followed but why the government lawyer was eluding things instead of directly coming to the point he wants to raise.
"By reopening, the unending litigation will swoop us. The questions will be how to address the issue. Bill of attender has limitations but our parliament has no limitations as far as law making is concerned," he remarked. The Chief Justice told the counsel that after thoroughly going through all the record, provided by the government, he and his colleagues came to the conclusion that case against late ZAB was closed in 1975 due to lack of evidence and was revived again when military dictator took over.
Awan argued that ZAB case was negation of international human rights conventions/laws, as he was not given a chance of fair trial. In this connection, he cited example of Chilean General Augusto Pinochet trial, in which the verdict was put aside due to presence of bias. Justice Chaudhry told him that the best judgement in Pakistan was Asif Ali Zardari and late Benazir Bhutto case of PLD 2001 in which their prayer was not only accepted and the the conviction was set aside due to issue of bias. He said two author judges of the Lahore High Court including Justice Malik Abdul Qayyum had to quit due to apex court ruling.
Awan said that three kind of bias including the actual one was involved in ZAB case which was evident from the fact that acting Chief Justice Molvi Mushtaq who rejected Bhutto's plea for transfer of his case, was made full fledged Chief Justice of Lahore High Court after two days on January 11, 1977.
He said the case was not fixed before the original division bench instead Molvi Mushtaq picked a five-member bench of his own choice. He said during proceedings, four private complaints were also received by the bench which were not decided. The Chief Justice observed that in terms of law that was in place at that time and laid down in Noor Elahi's case of 1966, the bench should have decided the private complaints first before proceeding with the state.
The bench was also apprised by Attorney General Molvi Anwarul Haq and Advocate General Punjab Khawja Haris that the federal and provincial governments had decided to make former judge Shafi-ur-Rehman report public over the criminal case in which ZAB was involved in 1975. The Chief Justice also instructed Attorney General that he should ask the police personnel to prepare hand written copies of the record pertaining to the case as photocopies were not readable. The hearing was adjourned till Wednesday.