What if everyone starts seeking review, asks CJ

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry on Thursday asked Babar Awan, appearing as counsel in a presidential reference, to assist the court on the relevant question of law leading to the reopening of Zulfikar Ali Bhutto’s murder case.

“To appreciate your reference, we would have to appreciate the evidence of the ZAB case. Would it be possible to do so in the present reference, and would it mean revisiting the question of law — you need to assist the court on this issue,” the chief justice asked.

A three-member bench of the apex court, comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Sair Ali and Justice Ghulam Rabbani, was hearing the presidential reference under Article 186 of the Constitution to revisit the ZAB case (reported as PLD 1979 SC 38).

The chief justice asked the former law minister if the evidence recorded in the ZAB case could be revisited; or rather, whether Article 186 of the Constitution allowed the court to revisit evidences in any case. “Since every citizen is the same in the eye of law, wouldn’t it [reopening ZAB case] create a problem in the future if everyone sentenced by the courts would like to revisit evidence against himself?” the CJ asked.
Earlier, Babar Awan told the court that in the light of Wednesday’s court orders that he resign as Federal Minister for Law, Justice and Parliamentary Affairs and revive his license by the Pakistan Bar Council, he had tendered his resignation, which was dully accepted. He also said his licence had been revised, after which he was now appearing as a law officer of the court.
The chief justice observed that the court was calling Hafeez Pirzada, the living history of the case, who had represented Bhutto. The chief justice observed that after the preliminary arguments, he would constitute a larger bench since this was a very important case and no one could deny its importance.
Chief Justice asked Awan whether any specific questions were discussed with the prime minister. Awan replied that a cabinet meeting was held on March 28, 2011, where it was decided that the ZAB reference would be filed “A summary was approved by the coalition government and the prime minister and president were advised to send this reference to the Supreme Court,” Awan added.
Justice Sair Ali asked Awan about the scheme of his arguments and Awan submitted that he had done his preparation in this regard. He submitted that Bhutto was sentenced while there was no Constitution in place. He also pointed out that Justice (retd) Nasim Hassan Shah, had written in his book that he was an ad hoc judge of the Supreme Court at the time of Bhutto’s sentencing, and Sharifuddin Pirzada had asked him to sit on the bench, which was against the rules. Awan submitted that Justice (retd) Shah had publicly admitted that Bhutto was hanged under the influence of Gen Ziaul Haq, which was a negation of his oath.

Awan pointed out that November 3 was very important in the history of Pakistan: ZAB was arrested on November 3, the same date that then General Musharraf imposed emergency on the country. He also pointed to the significance of July, which is the month in which Bhutto was hanged and also when Musharraf read a similar verdict on the fate of the superior judiciary of the country.
Awan read a paragraph from the book ‘If I am Assasinated’ that Bhutto had written in the Adiala Jail. He also read from the book of Col (retd) Rafi, Bhutto’s then security chief and submitted that in his book Rafi had stated that even if the Supreme Court had acquitted Bhutto, he would not have been released by the government of General Ziaul Haq. He also pointed out that Bhutto received the maximum punishment even though he was not the principal accused and had not committed any crime. He was sentenced when three members of the bench were missing from the bench and was hanged even though it was the duty of the court to complete the bench. He also submitted that three members of the Supreme Court bench had not agreed to the death penalty to Mr Bhutto.

Awan compared Bhutto’s case with the case of Bhagat Singh since both were decided by the High Court. He termed Bhutto’s sentence a judicial murder and stated that the PPP government did not believe in the politics of revenge but only wanted to correct the record. He submitted that ‘justice rushed is justice crushed’ and this was evident in the Bhutto case. Awan also said that because of the verdict in the ZAB case, the international community has always shown mistrust in the judgments of the High Court and Supreme Court of Pakistan.
The court observed that Awan has a very important duty and had to assist the court under Article 186. The court then adjourned the hearing till Monday.