ZAB death sentence: SC told it can decide presidential reference under Article 187

ISLAMABAD: The Supreme Court of Pakistan was told on Tuesday that it could decide under Article 187 of the Constitution the presidential reference seeking to revisit the death sentence of Pakistan Peoples Party (PPP) founder and former prime minister Zulfikar Ali Bhutto.

A nine-member bench of the apex court, headed by Chief Justice of Pakistan Qazi Faez Isa, heard the arguments of Makhdoom Ali Khan, the amicus curiae (friend of court). Other members of the bench were 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.

Former president Asif Ali Zardari on April 2, 2011 had filed the reference under Article 186 of the Constitution, seeking to revisit the death sentence of former prime minister Zulfikar Ali Bhutto.

The court said the legal heirs of Zulfikar Ali Bhutto would be heard on the next date of hearing, adding that Ahmed Raza Kasuri, the complainant in the instant case, would also be heard. The court noted down that after hearing the amicus curiae, Bilawal Bhutto’s counsel Farooq H Naek, Raza Rabbani and Zahid Ibrahim will also be heard. Amicus curiae and former attorney general Khalid Javed submitted his written formulations and will argue before the court on the next date of hearing. Attorney General Mansoor Usman Awan told the court that he would hardly take 40 minutes to conclude his arguments.

Earlier, Makhdoom Ali Khan, while concluding his arguments, submitted that the Supreme Court could invoke Article 187 of the Constitution and decide the reference as he contended that to prove the alleged bias of judges in the decision of Bhutto’s case, the interviews of Justice Nasim Hassan Shah, Justice Durab Patel and Justice Aslam Riaz were on record.

Justice Isa said if the court could ignore the aspect that when the case against Zulfikar Ali Bhutto was started, there was martial law in the country. “The army does not impose martial law as an institution, but it is an individual initiative,” the CJP remarked and added: “We are looking at the past but not taking into account the future. Should not the institution also draw a line and should not the Supreme Court also decide as well.” He asked the amicus curiae as to what a judge had said about a cat. Makhdoom Ali Khan replied that Justice Qaiser Khan had said that even a cat could not be hanged on the basis of evidence presented in the court.

Justice Isa observed: “Our focus is on the constitutional aspect and our jurisdiction is very clear. It cannot be reviewed twice how can we draw the line in this case?”

Makhdoom Ali Khan submitted that a judge said in an interview that there was pressure on him. The chief justice, however, said he did not say that he was a victim of bias. “If I did not bear the pressure, I should not have joined the bench,” the CJP said, adding that one person might say there was bias, but another might not have this opinion.

Justice Mansoor Ali Shah observed that the real question in this case was whether the process was followed properly in court proceedings. Justice Jamal Khan Mandokhel said this case had been finalized and questioned “should we not decide this question in an appeal?”

The chief justice remarked: “Can we ignore this aspect that when the case against Zulfikar Ali Bhutto started, there was martial law in the country and the martial law administrator had his own interests.”

Makhdoom Ali Khan submitted that Justice Naseem Hasan Shah had discussed the differences between Justice Maulvi Mushtaq and Bhutto, adding that Justice Shah had said that Maulvi Mushtaq was unhappy with Bhutto as he had ignored eight senior judges and appointed Justice Aslam Riaz as chief justice. “But tell me something about Justice Naseem Hassan Shah where he had said that he was under pressure while giving the decision,” the CJP asked the amicus curiae.

Makhdoom Ali Khan replied that it was not specific to this case and Justice Naseem Hasan Shah said that Mushtaq Sahib should not have sat in this bench, he could have benefited from the doubt but something was our weakness and Yahya Bakhtiar “made us angry as he did not give arguments for reducing the sentence and angered the judges”. At this, the chief justice said how the lawyer could be held responsible for weak arguments, adding that a client should not be punished on the conduct of his counsel. “Even if there is no request to reduce the sentence in the appeal, the judge has to look at the delivery of justice.”

Makhdoom Ali Khan submitted that Justice Durab Patel had said in the interview this should not happen. The chief justice said it was the first case in which the high court took away the right of appeal. “Can the death sentence be given in the ratio of four to three? I think we have to look at the facts of the case,” the CJP remarked. Justice Mandokhel questioned whether they should look at every decision given during the martial law period. There are many cases in the Supreme Court, the parliament also endorsed the decisions of martial law. Later, the court adjourned the hearing until February 26.