ISLAMABAD: Chief Justice Yahya Afridi stated that the Supreme Court in its advisory jurisdiction under Article 186 of the Constitution cannot reappraise the evidence and undo the decision of the case.
Justice Yahya, on Tuesday, released his additional note on the detailed opinion, authored by former Chief Justice Qazi Faez Isa. Justice Syed Mansoor Ali Shah and Justice Syed Hasan Azhar Rizvi have already expressed their views on the detailed opinion.
A nine-member of Supreme Court, headed by ex-CJP Faez, and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Mussarat Hilali on March 6, 2024, unanimously, delivered opinion on Presidential Reference that due process and fair trial not complied with in the murder trial of founder Pakistan Peoples’ Party Zulfiqar Ali Bhutto by the Lahore High Court and in appeal by the apex court.
In his additional note, Justice Yahya wrote; “I find myself in agreement with the observation of Justice Syed Mansoor Ali Shah that certain portions of the detailed opinion of the Chief Justice (Qazi Faez) verge on reappraisal of evidence in a case that has already been finally decided by this Court in its adjudicatory jurisdiction, and thus, the same exceed the scope of the inquiry delineated in the Short Opinion that ‘[i]n its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case’.”
He, however, acknowledged that the present reference was avowedly filed against the backdrop of the restoration of the judiciary and the proactive role of the restored judiciary in addressing the matters of public importance.
In this context, the reference drew attention, inter alia, to the “admission” of former Chief Justice of Pakistan, late Justice Nasim Hasan Shah, regarding external pressures in the decision of the appeal of Zulfiqar Ali Bhutto, which the reference described as a regrettable chapter in judicial history of our nation.
CJP Yahya observed that the reference might never have come before us but for the events recounted and the facts disclosed in the interview and autobiography of Justice Nasim Hasan Shah. Accordingly, it is both relevant and necessary to address certain aspects of that interview and autobiography, which raise significant concerns regarding the due process and fairness of the trial of Zulfiqar Ali Bhutto.
He further noted that in the Supreme Court judgement, Justice Nasim Hasan Shah rejected the contention that the trial of Zulfiqar Ali Bhutto was vitiated by bias on the part of Justice Maulvi Mushtaq Hussain, who presided over the Lahore High Court Bench that conducted the trial. However, this stance stands in direct contradiction to his later remarks in an interview with Iftikhar Ahmad for the programme, “Jawab Deyh”.
“In that interview, Justice Nasim Hasan Shah described Justice Maulvi Mushtaq Hussain as an overt enemy of Zulfiqar Ali Bhutto, expressing that he should not have been part of the Lahore High Court Bench. In fact, the presence of Justice Maulvi Mushtaq Hussain on the Lahore High Court Bench was referred to as “Ziadati”, a term that, within the context of the trial, could only be interpreted as bias.”
Justice Yahya said this clear contradiction in the views of Justice Nasim Hasan Shah raises concerns about the evaluation, in the appeal, of the question of bias on the part of Justice Maulvi Mushtaq Hussain.
He noted that Justice Nasim Hasan Shah revealed certain facts in his autobiography, “Memoirs and Reflections”, which suggest that his inclusion in the Bench for the purpose of hearing the appeal of Zulfiqar Ali Bhutto was orchestrated by the Attorney General Sharifuddin Pirzada and Justice Maulvi Mushtaq Hussain. “Such manipulation of the Bench composition undermines judicial impartiality and raises serious concerns about the fairness of the proceedings.”
“It also shows that Justice Maulvi Mushtaq Hussain pursued the matter zealously even after the High Court had decided the case and the appeal was pending before the Supreme Court, despite his role having concluded with the decision of the High Court. This unwarranted involvement after conviction blurred the boundaries of judicial propriety and further eroded confidence in the impartiality of the appellate process.”
He stated that these account of events effectively undermines the duly expected impartiality of judicial decision-making in the trial of Zulfiqar Ali Bhutto. Such events, if left unaddressed, risk eroding public confidence in the fairness of the judicial process.
The CJP admired the courageous dissents of Justice Dorab Patel, Justice Muhammad Haleem and Justice G Safdar Shah. He said: “Their dissents, even if unsuccessful in altering the outcome, remain a testament to the enduring principles of judicial integrity and impartiality, underscoring the value of an independent judiciary committed to the rule of law.”
Copyright Business Recorder, 2024
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