Pakistan

Review plea: Petition seeks dismissal of Bhutto reference

Supreme Court's jurisdiction to comment on issue questioned.

Express April 29, 2011

LAHORE:

An application has been filed in the Supreme Court Lahore registry seeking dismissal of presidential reference for reopening of Zulfikar Ali Bhutto case.

Petitioner Allah Baksh Gondal filed the application with the SC in pending presidential reference, through his counsel AK Dogar.

The petitioner submitted that the reference filed by the President under Article 186 of the Constitution was not maintainable and the SC has no jurisdiction to deliver an opinion on the issue.

He submitted that the judgment in the Zulfikar Ali Bhutto case was a judicial verdict handed down in exercise of the adjudicatory power of this court. He said any opinion rendered by the Supreme Court in exercise of its advisory jurisdiction cannot over-ride the judgment. He said any opinion given by the SC would not be binding.

He pointed out that five questions of law referred by president to apex court could have been taken up in review petition but Bhutto had filed a review petition which was dismissed on March 24, 1979. And a second review is not permitted under the law, the said.

He said President Asif Ali Zardari is also holder of office of head of Pakistan People Party. So, the reference is a reference by party chief and not by president of Pakistan.

He submitted that historically Zulfikar Ali Bhutto was a highly controversial figure and his sentence was welcomed by a large cross-section of society in Pakistan and even Babar Awan, the counsel for the president’s reference, distributed sweets among lawyers in Rawalpindi.

Published in The Express Tribune, April 29^th, 2011.

COMMENTS (6)

K.H. Khattak | 13 years ago | Reply @Munir Saami: I think the issue is whether an already disposed of review can be re-opened. A review was already denied as of March 24, 1979. A second review is not permitted as of law. Apart from this, as a student of political science, on would argue that any case law can be overturned by an act of the legislature. Why not pass an Act of Parliament instead? An act of Parliament has in the past, as it should in this case, pre-empt any common law decision. The motives behind making the Supreme Judaical Council to review a decision, not maintained by law seems to be a calculated political ploy. The petition cannot be maintained as of law. If the SC denies dismisses the petition, the Party in power can fall back and play the victim (as they always do). In my humble opinion, of course. They should gather some 'sand', and move to pass an Act of Parliament overturning the decision.

Shaikh Muhammad Saleem | 13 years ago | Reply @Fayyaz Haider: i agree with you

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Fayyaz Haider | 13 years ago | Reply Another tectics of delaying case. PPP can make fool of their own voters cuz they already are much but not other citizens of Pakistan. Where is ZABs PPP. Where are his principles and political ethics. NOw PPP is friend with America, India and all those who set ZAB an example by assessinating him. I think PPP has exactly understood this example. Now they are also friend with PML(Q). Where are murderers of BB. Mushurraf is free, and Pervaiz Elahi now friend of Zardari. Only to complete 5 years. Fitay mon.

Mirza | 13 years ago | Reply Let us try to keep the truth hidden and do everything so it does not come out. By answering five simple questions, SC would save a lot of time and clear its name and bleak history. It is all the more important for SC's own creditability after M. Mai's case. However, the enemies of ZAB and the collaborators who aided and abated the fanatic Zia, are creating all kinds of hurdles and foot dragging. Once the enemies of Pakistani people are exposed there cannot be a future Zia. However, the right wing mullah military alliance helped by the "independent" judiciary are hard at work. In most countries of the world the high courts let alone SC, do not even accept these kinds of applications. But Pakistani SC has too many judges who are not paying attention to decades old cases and they are too happy to pounce on the executive appointments, judge's extension and appointments, and every step of the democratic parliament to completely paralyze it. It is about time the SC should show some professionalism and take up the cases which suit its high position. Mirza, USA

John | 13 years ago | Reply The argument presented by this challenge is correct and was also noted in my comments a few weeks earlier. However, I think the court have no jurisdiction to entertain this plea since the reference was directed by the president under his presidential authority provided to his office by the constitution and the SC has to oblige on his reference. Having said that, this review of the case by the SC at the request of the government against its own prosecution and reevaluation by the SC of its own judgment is a jurisprudence, ethical, and legal nightmare. Except the question whether the verdict is in accordance with the Islamic law, all other questions of the reference were addressed during ZAB trial and dismissed by the court. The Islamic question is a brilliant move and gives a way out for all. I know how the court is going to rule on that but I'll reserve my opinion. Obviously this case is important to many in PAK. Yet, history cannot be changed.

Munir Saami | 13 years ago | Reply If only the petition and his lawyer knew the article 188 of Pakistani Constitution, it reads: "188. Review of Judgments or Orders by the Supreme Court. The Supreme Court shall have power, subject to the provisions of any Act of [169] [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it." This article gives explicit authority to SC to review its own judgements. It is better and different on case of Indian Supreme court which had to strive to get the same jurisdiction through various cases.

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