Supreme Court was surprised on Monday to see the incomplete interim challan, which was made basis of FIR against Zulfiqar Ali Bhutto, and observed how a plea having legal flaws was moved for transfer of case to the Lahore High Court.
An 11-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry initiated proceedings on a Presidential Reference under Article 186 of the Constitution, sent by the President, seeking opinion of the apex court over re-opening of Zulfikar Ali Bhutto's murder case.
Drawing the attention of Babar Awan, lead lawyer in the case, Justice Chaudhry observed that he should take into consideration the legal lacunas pertaining to law in filing the FIR. "How FIR was registered if record was not available and if it was not available, how investigation started... untraced case means there is lack of evidence", the CJP maintained.
Babar Awan stated that on September 13, 1977, Justice Molvi Mushtaq of LHC fixed hearing for September 24, 1977 by a bench headed by him with Justice Zakiuddin Pal, Justice MSH Qureshi, Justice Sheikh Aftab Hussain and Justice Malik Gulbaz Khan. "On record no notice was issued to Bhutto...no hearing took place and the case was transferred to the LHC bench. Only four state prosecutors were there to defend", the lawyer contended.
When Justice Ghulam Rabbani observed that there should be some mover of application, Awan replied that on September 13, 1977, an application was presumably moved by one of the movers while another single bench of LHC comprising Justice S Samdani granted bail to Bhutto on the same date.
He told the bench that he had tried to find out that application but it was not available in the Supreme Court record. To a bench query, he said that a court did not examine these aspects which were unprecedented. The reason was that at that particular time, there was no constitution and no independent judiciary.
The counsel said that bias was dominant in the case and this particular aspect had been dealt with by the apex court in its verdict on Asif Ali Zardari PLD 2001 case. He questioned how a person could be convicted on the basis of an approver's testimony. He questioned whether LHC as well as Supreme Court verdicts in murder trial against Bhutto fulfilled the requirements of fundamental rights as guaranteed under Article 4 sub articles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution.
The bench issued notices to Attorney General, counsel for referring authority and amicus curiae on a civil miscellaneous application moved by AK Dogar on behalf of Allah Bukhsh Gondal, praying the court to first decide the maintainability of the Presidential reference.
The Chief Justice, however, refused to accept a request of Tariq Asad (advocate) who wanted to become a party and told him to take his seat. The bench in its order conveyed its request to Qazi Mohammad Ashraf, senior lawyer, to assist the court as amicus curiae in place of Khalid Anwar, who had expressed his inability to appear.
The bench directed secretary ministry of law to make boarding and lodging facilities for counsels appearing as amici curiae in the case besides making payments to them. He was also directed to hold meeting with the registrar Supreme Court over the issue.
The Chief Justice also lauded presence of senior lawyers to assist the court including Aitzaz Ahsan. He said that Aitzaz was appearing before him after two years which was promptly responded by Aitzaz who corrected the period as four years. Further hearing was adjourned till Tuesday.