After six weeks, the Supreme Court of Pakistan is set to resume hearing of the presidential reference on Monday. The president had requested the apex court to revisit the judicial murder of PPP’s founding chairman and former premier Zulfiqar Ali Bhutto in 1979, the first time in Pakistan’s history that a 32-year-old case has come up for a review.
President Asif Ali Zardari had forwarded the reference to Chief Justice Iftikhar Muhammad Chaudhry after cabinet approval on May 2 who returned it on technical grounds and asked the president to frame specific questions of law since the Supreme Court has only advisory jurisdiction according to Article 186 of the Constitution. The federation’s lawyer, former law minister Dr Babar Awan had to resign from the cabinet to plead the reference and he presented five questions to the bench.
The first question related to Bhutto’s execution and inquired whether the death sentence was justified in the peculiar circumstances of this case or would it amount to deliberate murder, keeping in view the bias against him? The president has also inquired whether the verdict against Bhutto fullfills the requirements of Islamic laws as codified in the Holy Quran and Sunnah and finally, whether on the basis of conclusions arrived at and inferences drawn from the evidence in the case, an order for the death sentence could have been passed?
The chief justice constituted an eleven-member bench headed by him comprising Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasir Malik, Justice Sair Ali, Justice Jawad S Khwaja, Justice Shahid Siddiqui, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Sarmad Jalal Usmani and Justice Ghulam Rabbani to take up the reference. In view of the importance of the reference, senior jurists including Ali Ahmed Kurd, Tariq Mahmood, Abdul Hafeez Pirzada, Fakhruddin G Ebrahim, Khalid Anwar, Makhdoom Ali Khan, SM Zafar, Aitezaz Ahsan, Zahoorul Haq and Abdul Latif Afridi were appointed as amicus curiae (court assistants). The chief justice also directed Asma Jahangir, President Supreme Court Bar Association, Attorney General of Pakistan Maulvi Anwarul Haq and advocates general of all the provinces to appear before the court in the reference.
On the last hearing of the reference on May 12, the court asked for the record related to the resurrection of the murder case and Bhutto’s arrest on July 5, 1977 after the imposition of martial law and the subsequent retirement of chief justice Muhammad Yaqub Ali on July 22, 1977. The court observed that Justice Shafiur Rehman’s investigation report on Ahmed Kasuri’s murder should also be presented and adjourned the hearing till the third week of June subject to availability of the bench.
The court directed the Attorney General and amicus curiae to assist the court on the definition and scope of Article 186 on next date of hearing. Father-in-law of Justice (retd) Khalilur Rehman Ramday, Justice Muhammad Yaqub Ali was elevated to the Supreme Court in 1965 and assumed the office of the chief justice on November 1, 1975.
He was avowedly pro democracy and had declared the martial law regime of General Yahya Khan ultra vires to the Constitution.
General Ziaul Haq rightly fearing that he might invalidate the martial law imposed by him, appointed Justice Anwarul Haq as the new chief justice of the Supreme Court who upheld the ruling of the Lahore High Court against ZA Bhutto in Ahmed Kasuri’s murder case.
Published in The Express Tribune, June 25th, 2011.
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