ISLAMABAD: A nine-member larger bench of the Supreme Court on Monday heard a long-pending presidential reference, seeking to revisit the 1979 ‘controversial’ death sentence awarded to former prime minister Zulfikar Ali Bhutto, ARY News reported.
The larger bench – headed by Chief Justice of Pakistan Qazi Faez Isa heard the case. The bench was also comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin Ud Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, and Justice Musarrat Hilali.
Bilawal Bhutto and Aseefa Bhutto Zardari, Raza Rabbani, Farooq H Naek and Attorney General Mansoor Awan were also present in the courtroom.
“I have received an envelope from a private television channel, it seems a hard disk,” Chief Justice Qazi Faez Isa said. “We have also submitted transcripts and videos,” Farooq Naek told the court. “We will watch the video and transcript from the private tv first,” Justice Isa said.
Raza Rabbani came to rostrum. “Are you amicus curiae,” CJP asked. “I am not amicus curiae, I am lawyer of Sanam, Bakhtawar and Aseefa Bhutto,” Rabbani replied. “I have submitted petition to be a party in the case,” he added.
Barrister Salahuddin, an amicus curiae in case came to rostrum. “My wife has been granddaughter of Nawab Ahmed Qasuri, ask the sides if they have any objection to my assistance to court,” Barrister Salahuddin said.
“It is serious matter if the spouse has raised objection,” CJP said. “Zulfikar Ali Bhutto’s heirs have no objection,” Naek replied.
“My father was lawyer of DG FSF and approver in the case Masood Mehmood in Bhutto case. If someone have any objection over me,” Khawaja Haris said.
“Four questions have been asked in this presidential reference,” Makhdoom Ali Khan, an amicus curia in the case said.
“Read Article 186 of the constitution first under which this reference sent to court,” chief justice said.
“If we have any option, not to hear the reference,” CJP questioned. “Constitutionally, this court have no option except to give its opinion on the reference,” Makhdoom Ali Khan said.
“There will be another option if the question asked in presidential reference is ambiguous,” the lawyer said.
“Still the court have option to give its opinion if it deems the question is ambiguous,” Justice Mansoor Ali Shah remarked. “There is a unique case before the court,” Makhdoom Ali Khan said.
“The Chief Justice has summoned transcript of the interview in this case,” Makhdoom Ali said.
“Basically, the reference is based on the interview of former judge Naseem Hassan Shah,” Justice Muhammad Ali Mazhar said.
Makhdoom Ali Khan read the letter of Sharifuddin Pirzada. “Zulfikar Ali Bhutto’s sister had submitted a mercy appeal to the president, Bhutto himself didn’t file any mercy plea,” Makhdoom Ali Khan said.
Ahmad Raza Kasuri reached to rostrum. “You sit on the seat,” chief justice told Kasuri. “Allow the amicus curia to complete,” CJP said. “If you have any objection, write it,” CJP added.
“Zulfikar Ali Bhutto was awarded death sentence with split verdict of 4-3,” Makhdoom Ali Khan said. “A judge, in an interview later said that he had given decision under duress,” the lawyer said.
“Zulfikar Ali Bhutto was handed death sentence, and the decision was implemented, he could not return. We can only give our opinion over the presidential reference,” chief justice said.
“What is legal question before us,” Justice Mansoor Ali Shah asked. “If we give opinion to revisit the supreme court judgment on the basis of the interview,” he further said. “The interview was one of the judges of the bench, there were other judges in it,” Justice Shah said.
“If we summon the people concerned with the interview to initiate inquiry. Only watching interview, we could not say, this happened. The court, under Article 186 could give its opinion over legal questions,” he added.
“What legal question has been asked in the Bhutto reference,” Justice Muhammad Ali Mazhar asked.
The video of Justice (retd) Naseem Hassan Shah was shown in courtroom on the instruction of the chief justice.
“When this interview was recorded,” CJP asked. “The interview taken on December 03, 2003,” Farooq Naek replied.
“What I realize, is that Zulfikar Ali Bhutto case’s decision was wrong,” Justice Mansoor Ali Shah said.
“The court should revisit every criminal case, where justice not served and politics involved,” chief justice said.
“You said it is a unique case, different from others, the court should treat it separately,” Chief Justice addressed to Makhdoom Ali Khan.
Chief Justice Qazi Faez Isa said that the court seeing over restoration of the honour of a person and correction of the history.
“The sole point is this the judiciary was not independent,” Justice Mansoor said. “How can we entangle in an exercise that the bench was not independent,” he asked.
“In this case opinion of a judge could not be ignored. The ratio of the bench in Bhutto case points out that the opinion of a single judge is important,” chief justice said. “With single vote of a judge a man was hanged,” he added.
“This decision is an excess with justice,” Makhdoom Ali Khan said. “If the supreme court is responsible for it? Or the prosecution and the Martial Law Administrator of that time,” chief justice questioned.
“In my opinion, we should correct our history. The stigma is not over a family only but also over institutions,” Justice Musarrat Hilali remarked.
Chief Justice at the end of the hearing of the day in written order of the Zulfikar Ali Bhutto presidential reference said:
“Raza Rabbani told the court that he was representing Sanam, Aseefa and Bakhtawar Bhutto”. “Zahid Ibrahim representing Fatima Bhutto and Zulfiqar Junior”.
“Khawaja Haris’s father was lawyer of approver Masood Mehmood in the case. Raza Rabbani objected over Khawaja Haris’s being amicus curia. Khawaja Haris separated him from the case as amicus curia,” according to the court order.
The bench adjourned further hearing of the reference until third week of February.
Former President Asif Ali Zardari had approached the Supreme Court in 2011 through a Presidential Reference under Article 186 of the Constitution, seeking to revisiting the trial of the PPP founder and former prime minister of Pakistan Zulfikar Ali Bhutto.
