ISLAMABAD: The Supreme Court closed on Monday the hearing of a presidential reference seeking to revisit the 1979 controversial death sentence awarded to former prime minister Zulfikar Ali Bhutto.

A nine-judge SC bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, said the court would announce a short order on the reference in a couple of days after consultation since one of the bench members (Justice Sardar Tariq Masood) is retiring soon.

The top court had taken up the reference filed in April 2011 on behalf of former president Asif Ali Zardari seeking an opinion under the Supreme Court’s advisory jurisdiction on revisiting the death sentence awarded to the PPP founder.

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In March 1979, nearly two years after the Bhutto government’s ouster by military dictator Gen Ziaul Haq, a seven-judge SC bench, in a split four-three verdict, upheld the Lahore High Court’s verdict awarding death sentence to the former premier.

Supreme Court winds up hearing of presidential reference; Kasuri fears opinion to open floodgates of cases

Additional Attorney General (AAG) Chaudhry Aamir Rehman told the court that the government was trying its level best to find out from the record how former director general of the Federal Security Force Masood Mehmood, who later turned approver in the murder case, left Pakistan for the United States where he eventually died.

The AGP office was asked to furnish whether the approver left the country under some deal offered to him or witness protection programme or he just chose to move to America.

Ahmed Raza Qasuri, on whose complaint the murder case was registered against former PM Bhutto, pointed out that the court had not crossed the hurdle of admissibility of the reference and feared that any opinion by the apex court would open up the floodgates of references inundating the court with tsunami of cases like the Jan 13 denial of ‘bat’ symbol to the PTI.

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“Such a development will definitely lower the dignity and respect of the Supreme Court,” he argued, adding that the present reference was neither a question of public importance or involved interpretation of a legal question, rather an intention for removing stigma — a jurisdiction the Supreme Court did not have to wash out the stigma of an individual.

Mr Qasuri, while reminding that he was the only living founding father who contributed to the making of the Cons­titution, cited an Indian court judgement to say that the past and closed transactions could not be reopened since the law believed in the finality of the case.

Therefore, he said, the alleged constitutional engineering by filing the present reference would reshape and modify the Constitution, thus amounting to rewriting the green book, which the top court could not do since it was not a law-making body.

The president is empowered to refer any question to the apex court for its opinion but subject to the condition that it should be a live and not a dead issue, Mr Qasuri said, adding that a criminal case in which the Supreme Court had given its final verdict in exercise of its jurisdiction under Articles 185 and 188 of the Constitution could not be reopened through an indirect method by invoking Article 186.

He contended that former president Zardari was an interested party and, therefore, it was not appropriate to seek an advice of the Supreme Court, particularly on a dead issue settled some 45 years ago in which Mr Bhutto was sentenced to death.

He said the sole objective of the reference was to remove stigma and conviction, which seriously affected the reputation of Mr Bhutto and, therefore, it was not the constitutional duty of the Supr­eme Court to remove the stigma by exercising its jurisdiction under Article 186.

AAG Rehman said the federal government would like to adopt the arguments of one of the amici curiae Yasser Kureshi who had highlighted how the violation of the procedural requirements in the trial was documented by many scholars as evidence of bias and partiality of the Supreme Court, to substantiate the claim that Mr Bhutto’s conviction was a miscarriage of justice.

Published in Dawn, March 5th, 2024