Kasuri urges Supreme Court to dismiss ZAB reference: hearing tomorrow

In pursuance of apex court's direction, Ahmed Raza Kasuri on Saturday submitted reply in Supreme Court (SC) on presidential reference to revisit ZAB case with a plea to dismiss it, arguing that the SC has no jurisdiction to reopen the case.
Kasuri had lodged an FIR against the then premier and Pakistan People's Party (PPP) founder, Zulfiqar Ali Bhutto, in the murder case of his father Nawab Muhammad Ahmed Khan, who was killed on November 11, 1974, in Lahore. In his 72-page reply, Kasuri contended that the court had no jurisdiction to reopen the ZAB case under Article 186 of the Constitution and requested for the dismissal of the reference.
An 11-member larger bench of the Chief Justice Iftikhar Muhammad Chaudhry will resume the hearing of presidential reference from Monday (tomorrow). Kasuri further contended that a full court of Supreme Court had already rejected unanimously review petitions in ZAB murder case. Therefore, there is no justification to reopen the case, according to him.
"That instant case falls within the purview of settled principle of Law ie 'Closed and Past transaction.' Since the administration of Justice heavily lean in favour of 'Finality' hence a litigation, which is closed and past, cannot be reopened, indirectly through Article 186 of the Constitution. Beside word 'revisit' is unknown both to Law and Constitution. One does not find any mention of word 'revisit' in any legal dictionary," Kasuri argued in his concise statement.
As far as advisory jurisdiction of the SC is concerned it has already given its judgement so it is not tenable keeping in view the interpretation of Article 186 of the Constitution, according to him. He cited Supreme Court of India (AIR 1992 SC, 522). He also cited Article 143, of Indian Constitution which, according to him, is identical to Article 186 of Pakistan's Constitution.
Kasuri, who is a senior lawyer, added that the President was constitutionally empowered to seek advice or opinion of the apex court and the SC had to answer the reference but subject to conditions that the matter would be a live issue and not previously decided by this court.
He warned that the exercise of examining the whole record would open a Pandora's box and lift floodgates of futile litigation, which would result in inviting a "Judicial Tsunami" to courts. Kasuri further argued that in case if SC delivered its opinion that the judgement of the SC was a result of a bad trial, the brother judges of this Court would be stigmatised in the eye of public at large.
"Would it not be a requirement of justice and fair play that notice should be given to them (justices) if they are alive or to their legal representatives if they are dead, to defend their dignity, honour, judgement, trial and their judicial conduct," he added.
"Present reference sent by the President of Pakistan to Supreme Court of Pakistan and the question raised there may kindly be answered in the negative, since a 'matter which cannot be decided directly, cannot be decided indirectly', as Mr Bhutto availed the direct jurisdiction of SC under Articles 185 (2 ) (b) and 188 of the constitution against the impugned Judgement of Lahore High Court, Lahore, dated 18-03-1978, in criminal original No 60 of 1977, thus Mr Bhutto's conviction cannot be set aside indirectly under Article 186 of the constitution, as the advise of the SC cannot supersede its own Judgement, on the same matter/subject," he contended.
The SC on December 12 inquired whether it would not be necessary that the complainant whose father Nawab Muhammad Ahmed was killed on November 11, 1974, in Lahore be granted an opportunity to appear before the court in this case. Aitzaz Ahsan, an amicus curiae, informed the court that there was consensus that notice should be issued to complainant Ahmed Raza Kasuri in the interest of justice. Abdul Hafeez Pirzada, another amicus curiae, said Bhutto's trial was vitiated due to bias, adding that a notice to Kasuri was essential. He said that the court should hear the case in exercise of its suo motu jurisdiction and not under Article 186.