ISLAMABAD: A nine-member bench of the Supreme Court on December 12 will take up a presidential reference, seeking a declaration by the court that the hanging of former Prime Minister Zulfikar Ali Bhutto (ZAB) was a “judicial murder”.
The bench headed by Justice Qazi Faez Isa, and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, and Justice Musarrat Hilali, will hear the reference.
The bench was constituted by an order of the apex court committee, set up under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023.
PPP government on April 02, 2011, had filed a reference in the apex court to reopen the case of former prime minister and founder of Pakistan People’s Party (PPP) Zulfikar Ali Bhutto, who was hanged on April 4, 1979, in Rawalpindi.
This case was heard initially by a three-judge bench headed by former Chief Justice Iftikhar Muhammad Chaudhry on various dates. However, on 21.04.2011 the then CJP constituted an 11-member SC bench for the hearing of the reference. The last hearing of the reference was held on 11th November 2012.
Ali Ahmed Kurd, Tariq Mehmood, Abdul Hafeez Pirzada, Fakhruddin G Ebrahim, Khalid Anwar, Makhdoom Ali Khan, SM Zafar, Aitzaz Ahsan, Zahoorul Haq, and Abdul Latif Afridi were appointed as amicus curiae. However, Khalid Anwar expressed his inability to assist the court as amicus curiae and in his place Qazi Muhammad Ashraf was appointed as amicus curiae.
Former president Asif Ali Zardari had forwarded the reference to the Supreme Court under clause 1 and 2 of Article 186 of the Constitution for revisiting the case of Zulfikar Ali Bhutto. Babar Awan, who later joined Pakistan Tehreek-e-Insaf, had argued the reference on behalf of the PPP government. However, on January 17, 2012, Awan’s law practice licence was suspended for criticising the court’s order in the Memo gate case.
Pakistan People Party has always termed the hanging of former Prime Minister Zulfikar Ali Bhutto as judicial murder. A five-member of the Lahore High Court had awarded death sentence to Bhutto, which was upheld by the Supreme Court.
Chairman of Pakistan People’s Party Bilawal Bhutto Zardari in October 2018 had filed an application to implead party in the presidential reference of ZAB, but it was not fixed in the last five years.
Ahmed Raza Kasuri, who had registered a murder case against Zulfikar Ali Bhutto, in pursuant of the court notice at that time had filed a 72-page reply. He contended that the court had no jurisdiction to reopen the ZAB case under Article 186 of the constitution; therefore, presidential reference should be dismissed.
He also mentioned that SC full court had already rejected the review petitions, unanimously regarding ZAB murder case; therefore, the case could not be reopened. Involving question of law and facts do not fall within the ambit of Article 186 of the Constitution.
Kasuri contended that if in this case the court gives its opinion that the judgment of the Supreme Court was a result of a bad trial, in that case the brother judges of this Court would be stigmatised in the eye of public at large. Therefore, “Would it not be a requirement of justice and fair play that notice should be given to them if they are alive or to their legal representatives if they are dead, to defend their dignity, honour, judgment, trial and their judicial conduct,” he said.
“That instant case falls within the purview of settled principle of Law, i.e., Closed and Past transaction. Since the administration of justice heavily leans in favour of “Finality”; hence, a litigation, which is closed and past, cannot be reopened, indirectly through article 186, of the constitution. Besides word “Revisit” is unknown both to Law and Constitution. One does not find any mention of the word, Revisit, in any legal dictionary”, Kasuri said in his statement.
Copyright Business Recorder, 2023