ISLAMABAD - The Supreme Court on Tuesday raised a legal question to reopen Zulfikar Ali Bhutto murder case, while the Punjab Advocate General opposed reopening or retrial of the ZAB case.
In a 73 pages written submission, AG Punjab stated that the present position of law as it exists in Pakistan, has not allowed the finality of a judgment to be disturbed through a Presidential reference.
He said the court had held in Haji Saifullah case that it could not be reopened in Advisory Jurisdiction . He stated it was not the right to ask the apex court through Presidential Reference to revisit the ZAB case; as this would clearly be an abuse to the process of the court.
The AG Punjab contended that in Pakistan, there was no second review available to an aggrieved party and the question posed in the ZAB reference with respect to fundamental rights was clearly outside the purview of the Article 186.
He submitted that the apex court did not enjoy the appellant jurisdiction under Article 186 to reconsider its earlier decision and the court could not convert the advisory jurisdiction into an appellant jurisdiction .
On the other hand, AG Khyber Pakhtunkhwa has supported the Federal government’s stance to revisit the ZAB murder case under Article 186 of the Constitution.
Chief Justice Iftikhar Muhammad Chaudhry, heading an 11-member bench, observed that the Supreme Court could give its opinion on the Presidential reference, regarding re-visiting death sentence to the founder of Pakistan Peoples Party and former Prime Minister Zulfikar Ali Bhutto, but have no jurisdiction to revisit the case as court’s authority was restricted on this issue.
The Bench was hearing the Presidential reference for revisiting death sentence to PPP pioneer and former Prime Minister Zulfikar Ali Bhutto.
The CJP asked Dr Babar Awan to cite any example where appeals were rejected and case was revisited on Presidential reference.
CJP said the court’s jurisdiction was restricted regarding the revisiting of the cases, saying: ‘right now there were more than 300 mercy appeals pending before the President and after this reference, all of them could approach the court for revisiting their cases’.
Federation Counsel Dr. Babar Awan submitted that court has authority to revisit its own decisions and submitted the examples of Tikka Iqbal case.
He said the courts could revisit its own cases and the judicial mistake could be settled in a judicial way.
Babar Awan submitted that courts must do justice under even the worst circumstances.
He further said there were so many examples where court’s decision were discussed in the Parliament and declared wrong, but the PPP government did not want to do that.
He stated that Bhutto’s sentence was a judicial mistake so judiciary should correct its mistake.
Justice Saqib Nisar observed that there was no example where any case could be revisited under Article 186. CJP observed that judiciary respect the President’s office but also have to act in accordance with existing laws.
‘Other party could also object to this reference’, CJP observed.
Babar Awan submitted that Bhutto’s case was a unique case in the judicial history and must be revisited by this court.
CJP observed that already trialed case was demanding revisiting through this reference and court need to decide its maintainability.
Babar Awan submitted that Bhutto’s case was transferred from trial court to High Court without any record and said there were lot of irregularities in this case.
Therefore, it must be revisited by this court, he added.