SC questions maintainability of ZAB reference

ISLAMABAD/GUJRANWALA: Supreme Court senior judge Justice Syed Masoor Ali Shah Tuesday observed that matter pertaining to trial of Pakistan Peoples Party (PPP) founder and former prime minister Zulfikar Ali Bhutto (ZAB) had attained finality as a review petition had been dismissed earlier, so how can the apex court re-open the case that has already been concluded.

A nine-member bench of the apex court headed by Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa heard the presidential reference seeking revisiting the ZAB murder case. Other members of the bench are: 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.

The apex court heard the attorney general and PPP counsel Farooq H Naek, and adjourned the hearing till second week of January, 2024. The court also appointed amicus curiae (friends of court) having expertise on criminal and constitutional fields for its assistance in the presidential reference. During the proceeding, former president Asif Ali Zardari, PPP Chairman Bilawal Bhutto Zardari, Sherry Rehman, former prime minister Raja Pervaiz Asharf and other PPP leaders were present in the Courtroom No 1. The proceedings were broadcasted live at the Supreme Court website. Bilawal, through his counsel Farooq H Naek, the other day filed an application with the apex court seeking live broadcast of the proceedings on national as well as other TV channels. The CJP, while dictating the order of the court proceedings, noted that the application of Naek had become infructuous as the SC committee has already decided in that regard.

At the outset of hearing, Justice Mansoor questioned the PPP counsel over the maintainability of the presidential reference. The senior judge observed that matter pertaining to trial of ZAB had already attained finality as a review petition had also been dismissed; therefore, the apex court had no jurisdiction to hear a second review petition. “How can we re-open the case that has been concluded and under what law this court can re-open the case”, Justice Syed Mansoor asked the PPP counsel, adding that there is no concept of second review available in the Constitution.

The judge asked Naek as to what decision the court could give, and asked him to assist the court on the question of maintainability. Meanwhile, the court after the hearing the matter, dictating its order and noted that Attorney General Mansoor Usman Awan read out the presidential reference as well as the order of the court given on April 21, 2011, containing the questions to be addressed. The court noted down in its order that the reference was filed in 2011 and the last hearing was held in 2012.

It noted that in the same order a number of amicus curies who were appointed among them some have passed away while some are alive. Ali Ahmed Kurd advocate, who was also among those amicus curies has consented to assist the court, while Makhdom Ali Khan is also willing to do so as well, the order noted, adding that the court consider to appoint constitutional experts, particularly on the scope of Article 186 whereby the presidential reference was filed, and the question of maintainability of the reference. The order noted that it needed wisdom of criminal experts, so name of Justice (retd) Manzoor Ahmed Malik was proposed, and the parties supported it.

Accordingly, subject to his assent, he is appointed as amicus curiae and he may submit a concise statement in this regard, the court noted and also appointed Khwaja Haris as amicus curiae. Haris was the Punjab advocate general when the case was earlier heard by the Supreme Court. The court also appointed Salman Safdar as amicus curiae on criminal side as well as Faisal Siddiqui advocate on constitutional side to assist it. Farooq Naek raised objections on the two lawyers.

The court, however, turned down the objections and held that it was its prerogative to appoint amicus curiae. The court also appointed Raza Rabani as amicus curiae on constitutional side besides appointing also former attorney general Khalid Javed Khan, Salahuddin Ahmed advocate, Barrister Zahid Ibrahim and Yasir Qurashi as amicus curiae on constitutional side.

Barrister Aitzaz Ahsan, however, refused to assist the court as amicus curiae. The court asked his associate at which he said that Aitzaz didn’t want to become amicus curiae in the matter The court directed to all the amici curiae to submit their concise statements before the next date of hearing.

The court further noted down in its order that the reference has also referred to former chief justice of Pakistan Nasim Hassan Shah in the case Zulfikar Ali Bhutto versus the state, the review decision in ZAB case -- PLD 1979-SC 741 -- and the interview of the Justice Nasim with a Geo TV anchor Iftikhar Ahmed. The court issued notice to Geo TV for providing the transcript of whole interview.

Earlier, during the course of hearing Farooq H Naek told the court that Justice Nasim in the interview had admitted that they were under pressure. The court also accepted the plea of Supreme Court Bar Association (SCBA) to be pleaded as party in the reference

SCBA Secretary Ali Imran appeared before the court and requested for being the party. The court directed the lawyers’ association to engage its counsel. The court directed its office to send copies of the reference to all the appointed amicus curiae along with the order earlier passed by the apex court in 2011 with record of criminal appeal.

“With regard to criminal appeal we need assistance of cope of criminal trial of high court, the trial was concluded by high court and if there was any objection whether objections were attended to,” the court noted down in its order The court further noted that Naek informed that ZAB has eight grandchildren. The court directed that legal heir of the deceased may engage counsel if they want to.

Later the court adjourned the hearing until second week of January, 2024. Earlier, during the course of hearing Ahmed Raza Kasuri, who had lodged the FIR against ZAB, pleaded the court to adjourn the hearing until after general elections as he pleaded that the PPP will exploit the verdict of the apex court for its election campaign.

This case should not be used for elections, Kasuri submitted. The CJP, however, told Kasuri that many references were filed in the apex court after the present, adding that at that time there were also some election matters but the references were heard.

During the hearing, Justice Isa asked the attorney general about the stance of the caretaker federal government on the presidential reference. The AG replied that he had not received any instruction for withdrawing the reference, so he would pursue it. After the hearing, addressing the media outside the Supreme Court, PPP Chairman Bilawal Bhutto Zardari said that the presidential reference was a challenge for the judiciary as the case is also an opportunity to correct the mistakes of the past.

On elections date, Bilawal said that as far as the election date is concerned, the CJP himself said that it is written on the wall that it will happen on February 8. “Hence, it should not be questioned whether elections will take place on the exact date,” he said. Referring to Asif Zardari’s statement given in a recent interview, the PPP chairman said that he had stated that the elections will be held on time and his response upon being pressed further is being taken out of context. “The PPP reposes hundred percent trust in Justice Qazi Faez Isa, and he himself has dismissed any uncertainty regarding the elections,” he said.

He further said that he would be the first person to speak out if there is any concern over a delay in this regard. Bilawal said that it is the PPP’s long-standing stance that the institutions and politicians both should operate within their constitutional domains, and it is only after this is achieved that we can progress into a modern state. He said it is unfortunate that our old politicians are still adamant on doing the same traditional politics that has brought nothing but harm to the country in the past, through creating a hyper-partisan and hyper-polarised atmosphere. “We can only serve the people after burying the politics of hate and division, and then work collectively for the sake of the nation,” he said. Addressing a worker’s convention in Gujranwala, Bilawal held General Zia-ul-Haq and some judges responsible for a wrongful convicting of Zulifqar Ali Bhutto. Bilawal Bhutto Zardari said that all those who were part Zia’s dictatorship should be exposed, adding that no one could get justice until justice was served to the Quaid-e-Awam. He said that Bhutto gave the slogan of bread, clothes and houses to the people of Pakistan, adding even today, the solution to all the problems lies in the slogan. He said there is no politics of hate, division and abuse in his political training, adding many political parties were launched, and vanished but PPP still exists today. He asked the politicians to find a solution to the challenges faced by the country through joint efforts and added that there was a need to introduce a politics free from hatred and division. “My political training was done by Benazir Bhutto who taught me to serve the poor people of the country,” said Bilawal. He directed the party workers to reach out to every house to explain the manifesto of Pakistan People’s Party. PPP has a history of providing employment opportunities to youth, he said and added youth is walking around with degrees in their hands, but they are not getting jobs.