ISLAMABAD – The Supreme Court on Thursday pointed out that no question of law to meet the requirement of Article 186 was framed in the presidential reference for revisiting the death sentence of former prime minister Zulfikar Ali Bhutto, directing Babar Awan, the federation’s lawyer, to assist the court over relevant questions of law to revisit the ZAB case.
A three-member bench of Chief Justice Iftikhar Muhammad Chaudhry, Justice Muhammad Sair Ali and Justice Ghulam Rabbani directed Awan to look into the questions raised by the court about relevant question of law on which the court had to give its opinion under Article 186. Awan was told that the court wanted clarity of certain aspects of the reference, especially raising of a specific question of law, so that it could proceed ahead for giving its opinion on the reference.
The chief justice told Awan that all judges were keen on the issue, so he should assist them on the question of law involved in the matter. To a court query, Awan said the reference was sent after due approval by the prime minister and the whole federal cabinet under relevant rules.During the hearing, the chief justice observed that if the Bhutto case was revisited, it would set a precedent and the same thing would be demanded in the cases of death sentences.
“We don’t say you erred. You did the right thing by sending a reference, but remember you being at the helm of affairs have double responsibility so that no wrong message can be sent to the public,” the chief justice asked Awan. “If you wanted the court to revisit the verdict, you had to challenge all the three judgements in the Bhutto case,” the chief justice noted.
The court asked Awan to read out the reference. While he was reading the reference, the court interrupted him and corrected his mispronunciation of words at least on three occasions. The chief justice asked him to have a long breath as there was no haste and the court was in no hurry. “Under Article 186, the question is no doubt about issue of public importance, but our concern is about the relevant law, you know our limitations as we are trying to identify that question of law,” he further noted.
He said the Supreme Court had been giving its opinion on the references since 1954. He said in the reference of Yousaf Patel in 1954, specific questions of law were raised. He also objected to the language of the draft of reference, saying that may be the draftsman had erred. He, however, said the court would try to correct the errors. He said in 2005, a reference was sent seeking opinion against certain provisions of the Hasba Bill passed by the then NWFP Assembly.
Awan said three sentences were passed against Bhutto, which included capital punishment for abetment, attempted murder under then section 207 and section 554 of CrPC about compensation. He said earlier, no accused was sentenced to death on the testimony of an approver. Awan said Justice Moulvi Mustaq, a judge of Lahore High Court, had a bias against Bhutto and it was a fact which was not hidden from anyone at that time.
He said the LHC could not directly announce the death sentence without a trial in the lower court. He said the judgment against Bhutto was a split judgment and the former judges minced no words by saying that it was a verdict given under duress from the then era of a military dictator. He said that the unholy haste shown in the judgment also manifested bias. The lawyer said on the other hand, the PPP governments never indulged in political vengeance.
The court asked Awan whether the issue of bias could be a reason for revisiting the judgment. He said it could be, as its scope was widened under Article 186. The chief justice said that the appreciation of evidences at this stage would not be covered under Article 186. Referring to various co-incidences, Awan said November 3 had significance in the history of the country as on that date, the provider of the 1973 Constitution was arrested by a dictator and on the same date another dictator held the constitution in abeyance by detaining the judges and making the judiciary dysfunctional.
He said it was July 1978 when a judiciary functioning under the Legal Framework Order announced sentence against Zulfikar Ali Bhutto (ZAB). He said on July 31, 2009, the Supreme Court declared the extra constitutional steps of another dictator unconstitutional. He read out some extracts of a book “Memories and Reflection” written by former chief justice Dr Naseem Hassan Shah, in which he admitted that being an ad hoc judge, he was compelled by Moulvi Mushtaq, a former judge of the Lahore High Court and Syed Sharifuddin Pirzada to sit on the bench, which announced sentence against Bhutto.
He said Justice (r) Shah also admitted that such proceedings before an ad hoc judge were not a general practice. Reading an extract from the book, “If I am Assassinated” written by ZA Bhutto in central jail, Rawalpindi, he said Bhutto had noted that a former judge made a profound verdict by saying that they only wanted his (Bhutto) trial.
The chief justice then told Awan that he should also read books like “Leopards and Fox and Moneca Monax” about such history. Later the court adjourned proceedings until 11:30am on April 18.
