SC questions legal procedure in ZAB case

During the hearing, Justice Sardar Tariq Masood questioned whether the court would reopen all cases during the martial law period

By Sohail Khan
February 29, 2024
A policeman walks past the Supreme Court building in Islamabad Pakistan. — AFP/File

ISLAMABAD: The Supreme Court directed the attorney general on Wednesday to submit, on the next date of hearing, details of Masood Mahmood, the witness in Bhutto’s case who later travelled abroad.


A nine-member bench of the apex court, headed by Chief Justice Qazi Faez Isa, heard the Presidential Reference filed in 2011, seeking revisitation of the execution of former prime minister Zulfikar Ali Bhutto.

Other members of the bench include Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.

After hearing the learned amicus curiae and former judge of the Supreme Court, Manzoor Ahmed Malik, and the counsel for Bhutto’s family, the court adjourned the hearing until March 4.

During the hearing, Justice Sardar Tariq Masood questioned whether the court would reopen all cases during the martial law period, adding that if the door is opened, there will be a flood of cases. Justice Syed Mansoor Ali Shah observed that the court has no qualms about correcting its mistakes, but one has to specify the procedure in this regard.

Chief Justice Qazi Faez Isa questioned whether the investigation could have been closed and reopened and whether the trial could have been directly transferred to the high court. “The question why the conscience of witness awakened only after three years has to be examined,” remarked the CJP.

Justice (retired) Manzoor Ahmed Malik, the amicus curiae, while assisting the court, submitted that Bhutto’s case was not the trial of murder but rather the murder of the trial, adding that it is for the court to determine whether to correct history or not.

He further submitted that a witness claimed that his faith in Allah Ta’ala is unshakable, and such a significant claim can only be made by someone very close to Allah. He also submitted that a witness said, “I told Bhutto Sahib that I would not obey such orders anymore.”

“Can an officer say such things in front of the prime minister? Can the registrar of this Supreme Court dare say such things in front of the chief justice?” the amicus curiae submitted.

Chief Justice Qazi Faez Isa, however, disagreed with the amicus curiae and said that he was encouraged by the registrar’s disagreement on many things. “I did not talk about you; do not take it upon yourself,” the amicus curiae replied, adding that the court has to decide whether to base its decision on the record, technical issues or exercise the power of full justice. He further submitted that in Bhutto’s execution, there are also political implications but he will not discuss them.

The amicus curiae submitted that even today, the people of Sindh have not forgotten the execution of Bhutto.

During the hearing, Zahid Ibrahim, the lawyer of Fatima Bhutto and Zulfikar Bhutto Junior, while arguing before the court, submitted that Justice Naseem Hasan Shah had expressed his helplessness during martial law. Justice Yahya Afridi, however, observed that Naseem Hasan Shah’s statement is general and questioned whether it would apply to all his decisions.

The chief justice said: “Has it been said in the interview that the decision was taken under pressure?”

Farooq H. Naek said that there was no such sentence in this interview; review the rest of the interview also and then the situation will be clear.

Justice Yahya Afridi asked Naek to read out the relevant portion of the transcript. Naek said that Justice Naseem Hasan Shah had said that ‘when the army comes, it says the court cannot interfere in our affairs’.

Farooq Naek said that Naseem Hassan Shah had also said that ‘in martial law, the judiciary is subordinate to the generals.’ Naek, while arguing about the admissibility of the presidential reference, said the Constitution nowhere states what the legal question would be.

The chief justice said that it can be determined whether the question is legal or not.

“Sometimes the president also sends such questions as what a secret ballot is; sometimes simple English questions also come up,” the CJP added.

Naek. said that the first question is whether the decision in the Bhutto case is under the Constitution and the law. The chief justice, however, said that the president himself should answer this question. Justice Syed Mansoor Ali Shah observed that the court has no qualms about correcting its mistake but specify the procedure.

“I still do not understand what legal question has been raised in the reference,” Justice Mansoor Ali Shah added.

The Chief Justice said whether the investigation could have been closed and reopened or not, whether the high court could have transferred the trial directly or not — these are the questions that need to be addressed.

Farooq H Naek submitted that the rights were suspended, and the oath of judges was also changed. The chief justice said that ‘we know these things; tell us something new’.

When Naek’s arguments were completed, the chief justice inquired as to whom Raza Rabbani would represent. Raza Rabbani said that he would represent Sanam Bhutto.

Barrister Aitzaz Ahsan, while arguing as amicus curiae, said that he would not answer the question on the Islamic side of the matter; he is afraid of this question.

Meanwhile, the court took a short break while the chief justice observed that he would complete the hearing today.

When the hearing resumed, Justice Jamal Khan Mandokhel inquired whether the Supreme Court could declare that the decision in the Bhutto case was wrong, adding that there was a Jirga system in Balochistan and that there were wrong decisions. “Can’t they also be called wrong? Whether the decision is right or wrong, nine comments can also be written.”

Aitzaz Ahsan submitted that the Supreme Court is required to answer the Presidential Reference but added that the court didn’t need to declare that the decision in the Bhutto case was right or wrong. The court can also say “no comment,” Ahsan submitted. He also referred to foreign court decisions and said that the court in Canada reopened the case after the death of the applicant.

Justice Sardar Tariq Masood, however, observed that the Canadian court had upheld the old decision and rejected the appeal. When Aitzaz Ahsan spoke about the bias of judges, Justice Yahya Afridi said to give a written answer to the aspect related to bias.

Aitzaz Ahsan submitted that during the martial law era, the entire judiciary was under the control of the army chief. Justice Yahya Afridi, however, told Ahsan not to say this, adding that three judges of the Supreme Court had ruled in favour of Bhutto. Later, the court adjourned the hearing until March 4.