Chief Justice of Pakistan (CJP) Justice Iftikhar Muhammad Chaudhry said on Tuesday that in order for the death sentence of former prime minister Zulfikar Ali Bhutto to be revisited, the case would have to be sent to the trial court.
The CJP was heading an 11-member larger bench of the Supreme Court hearing the presidential reference to revisit Bhutto’s death sentence. Resuming his arguments, government’s counsel Dr Babar Awan stated that the SC had given a wrongful death sentence to Bhutto, thus it had the responsibility to undo the injustice and correct the error in judicial history.
He said the government did not want to exceed the purview of Article 186 of the constitution in the presidential reference, and keeping in view the purview of Article 186, the president had raised the questions of fundamental rights, due process of law, and independent and unbiased judicial proceedings in his reference. To a court query, Awan said Anwarul Haq, the CJP at the time of Bhutto’s trial, in contradiction of admitted facts wrote in his order that in both cases of the state as well as the prosecution, only Bhutto was accused.
He said in fact, two accused were presented by the prosecution, one was Rao Rasheed Ahmed, the inspector general of Punjab Police at the time, and the other was Saeed Ahmed, special assistant to the prime minister at the time. He said Haq gave the benefit of doubt to LHC Justice Maulvi Mushtaq Ahmed, setting aside the global legal principle that the slightest benefit of doubt should go in favour of the accused.
He said when Maulvi Mushtaq was hearing the murder case against Bhutto, he had filed a complaint with the police that he was afraid Bhutto would kill him, and that Bhutto would be responsible if anything happened to him. Awan questioned how a judge who had become a complainant against Bhutto could give him justice. To a court query, Awan said except the murder case, not a single case could proceed against Bhutto. He said the evidence was ignored and the case of prosecution against Bhutto was started. He said the due process of law was not observed against Bhutto.
AWAN CITES: Awan cited 10 verdicts from various countries where the courts, legislature and the executive acquitted various accused/convicts posthumously. To a court query, Awan said most of these cases were decided by the courts of ultimate jurisdiction and not the trial courts, since when a case was heard by a court of ultimate jurisdiction, the decisions of the trial courts were merged into it. He said when the Supreme Court upheld the death sentence of Bhutto, the decisions of the trial and high courts were merged into it.
NEW EVIDENCE: Justice Javed Iqbal told Awan that the cases he had cited were reopened on the basis of new evidence coming to light, whereas no new evidence had been produced in the Bhutto’s case. Justice Jawwad S Khawaja told Awan that the cases he had cited were related to pardon, and Awan clarified that Bhutto had never asked for pardon, even when he was in prison, and he had also not permitted his family to file a mercy petition for his life.
He said Justice Durab Patel, one of the three judges who had written dissenting notes in the Bhutto case verdict, had said that there was no case against Bhutto. Earlier, Justice Sarmad Jalal Osmany asked the attorney general whether Justice Shafiur Rehman’s report was made public or not. The attorney general said that the federal government would make the report public after getting a certified copy from the Supreme Court.
Concluding his arguments, Awan stated that injustice was done to Bhutto and the judges who awarded him death sentence were biased, thus the case deserved to be revisited. Attorney General Anwarul Haq will begin his arguments today (Wednesday).
