ISLAMABAD: Justice Syed Mansoor Ali Shah on Tuesday questioned the maintainability of the 2011 presidential reference, moved to revisit the controversial death sentence awarded to former prime minister Zulfikar Ali Bhutto in 1979, wondering how the Supreme Court could open settled judgements by invoking Article 186 of the Constitution.

“What is the real question for us to render opinion when the court cannot touch a decided matter on which even the review petitions have been determined,” Justice Shah observed.

Justice Shah is a member of the nine-judge Supreme Court bench that resumed hearing on the presidential reference after a delay of 12 years in a packed Courtroom No. 1. The case proceedings were broadcast live, while former president Asif Ali Zardari – who sent the reference to the court in 2011 – and his son Bilawal Bhutto-Zardari were among those in attendance.

“This is a difficult question; if we do so then tomorrow references will start landing in the court to open previous judgements of the Supreme Court,” Justice Shah observed, adding that even if the previous judgement was wrong, the proper way to correct it was not through Article 186.

SC appoints scores of amici to assist it on legal points; case to be heard day-to-day from January

“You have to build a strong case to cross the maintainability hurdle since it is not enough to plead that the trial was conducted during the period of constitutional deviation,” Justice Shah observed, adding it will then be a strong assumption.

Chief Justice of Pakistan (CJP) Qazi Faez Isa, who heads the bench, appointed fresh amici to assist the court. Advocate Ali Ahmed Kurd and Makhdoom Ali Khan expressed their willingness to assist the court.

Former judge Manzoor Malik has also been appointed as amicus, while others who were appointed amici are senior counsel Khawaja Haris Ahmed, who was the Punjab advocate general when the reference was being heard in 2011; Raza Rabbani; former AGP Khalid Jawed Khan; Salman Safdar; Salahuddin Ahmed; Zahid Ebrahim; Faisal Siddiqui, and academic Yasir Qureshi. Senior counsel Farooq H. Naek objected to the inclusion of Faisal Siddiqui and Salman Safdar but was told by the court to furnish a formal application in this regard.

Since the reference also refers to an interview of former CJP Nasim Hassan Shah, Geo News was issued a notice to furnish the footage of the entire interview conducted by anchorperson Iftikhar Ahmed.

Complainant Ahmed Raza Kasuri requested the court to fix the hearing after the upcoming elections on Feb 8, but the court postponed further proceedings till the first week of January, stating the case would be proceeded on a day-to-day basis without any adjournments.

Farooq Naek also referred to an interview of Justice Dorab Patel, who was also a member of the Lahore High Court (LHC) bench that convicted Z.A. Bhutto. The senior counsel volunteered to furnish the interview as well as its transcript. The court also asked the Supreme Court Bar Association (SCBA) to nominate a counsel of their choice to represent the association in place of the late Asma Jehangir.

The court ordered its office to provide copies of the reference as well as previous orders of the court and wondered whether assistance should also be rendered to the court on the question of whether there was any precedent in which the high court could become a trial court and if any objection was raised to the trial then, how such objections were attended to.

During the hearing, the CJP regretted the hearing had taken such a long time, but said now the court had developed a policy under which matters would be treated based on “first in – first out.” The court also allowed the legal heirs of the late Z.A. Bhutto to engage a counsel if they wanted to, but said they would not be allowed to appear in person.

Published in Dawn, December 13th, 2023