Chief Justice Iftikhar Muhammad Chaudhry, hearing the Zulfikar Ali Bhutto (ZAB) reference case on Tuesday, remarked that any case whose verdict has been passed cannot be revised by the court, a private TV channel reported.
Federation’s lawyer Babar Awan said that a decision should be redressed lawfully and morally if it is prejudiced against a person. The Supreme Court replied that more than 300 people were given death sentences only in the province of Sindh and it is not possible to review every single one of them.
The chief justice said that the court’s liability was limited in the case and it could only give its opinion, adding that the court only wanted to see whether a case could be reopened through a reference or not.
Punjab advocate general also remarked that a case could neither be reopened nor reviewed through references. The case has been adjourned till tomorrow.
Last year in November, President Asif Ali Zardari revived the presidential reference to reopen the case relating to Zulfikar Ali Bhutto’s death. The government had asked the Supreme Court to take up the case at the earliest opportunity.
SC unimpressed with Awan’s submissions in Bhutto case
The government’s counsel Babar Awan has so far failed to establish or convince the Supreme Court how the Zulfikar Ali Bhutto case can be revisited, and continues to ask the court to set a precedent by revisiting the Bhutto case.
Resuming his arguments on Tuesday, Awan submitted that the court had the authority to revisit its own decisions. Citing various cases including the case of Tikka Muhammad Iqbal, he said only courts could revisit their own decisions to settle the judicial mistakes in a judicial way. He said except courts, there was no other authority to settle a judicial mistake. He was arguing before an 11-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry, which was hearing a reference filed by President Asif Ali Zardari under Article 186 of the constitution seeking to revisit the death sentence awarded to former prime minister and Pakistan People’s Party (PPP)’s founder Zulfikar Ali Bhutto in 1979. During the hearing, the chief justice observed that the Supreme Court could only advise on the presidential reference, however it had no jurisdiction to revisit the case as its authority was restricted on this issue.
He again asked Awan to cite any case from across the world where a court had revisited such a case. “Has any president from any state ever asked the superior courts to revisit any case that has been duly decided by the court?” the chief justice asked. Awan submitted that there were two examples over revisiting: one was the case of the governor general and the other was from the Indian Supreme Court. But the court rejected his examples as irrelevant and asked him to cite any case where appeals were rejected and the case was revisited on any presidential reference. “Right now, there were more than 300 mercy petitions pending with the president and after this reference, all of them could approach the court to revisit their cases,” the chief justice observed. Awan, however, submitted that the courts must do justice even under the worst circumstances. He said there were so many examples where the courts’ decisions were discussed in parliament and declared wrong, but this government was not willing to make any such precedent. He said Bhutto’s sentence was a judicial mistake, so the judiciary should correct it. Justice Mian Saqib Nisar observed that there was no example where a case had been revisited under Article 186 of the constitution. The chief justice observed that the judiciary respected the president’s office, however it had to act in accordance with existing laws.
Awan submitted that Bhutto’s case was a unique case in judicial history, thus it must be revisited by the apex court. The chief justice observed that when an already tried and concluded case was up for revision, the court was required to decide its maintainability. Awan stated that Bhutto’s case was transferred from the trial court to the high court without any records. He said there were a lot of irregularities in this case, thus it deserved to be revisited. Another amicus curiae, Fakhruddin G Ebrahim, submitted that in a verdict of the Indian Supreme Court, it had been held that any case in which judicial bias or injustice had been committed could be revisited. The court asked him to present supporting documents.
Appearing on notice, the Punjab advocate general filed a 73-page written submission, stating that the present position of law as it exists in Pakistan has not allowed for the finality of a judgement to be disturbed through a presidential reference.
He said the court had held in Haji Saifullah’s case that it could not reopen any case by exercising its advisory jurisdiction. He said it was not competent for the president to so invest the apex court through a reference, as this would clearly be an abuse of the process of the court. In Pakistan, he said, no second review was available to any aggrieved party and the question posed in the ZAB reference with respect to fundamental rights was clearly outside the purview of Article 186. He contended that the apex court did not enjoy the appellate jurisdiction under Article 186 of the constitution to reconsider its earlier decisions and it could not convert the advisory jurisdiction into an appellate jurisdiction. Appearing on notice, the Khyber Pakhtunkhwa advocate general supported the federation’s stance to revisit the case under Article 186. Further hearing will take place Wednesday (today).