ISLAMABAD: Hearing the presidential reference here Tuesday, Chief Justice Qazi Faez Isa remarked: can’t this case be categorised providing an opportunity to vindicate the armed forces and the judiciary, as the martial law was imposed in the country not by the institution, but by an individual.

A nine-member Supreme Court (SC) bench, headed by the chief justice, 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 Musarrat Hilali, heard the presidential reference.

“Isn’t this an opportunity for both institutions (army and judiciary) to get rid of the accusations hurled against them.”

“This is the beginning of new phase in the chequered history of the country,” the CJP said, adding there are some problems in the judgment, delivered in the Zulfikar Ali Bhutto’s death sentence, as pointed out in Justice Shafiur Rehman report.

The chief justice said does it not heal the wounds of the nation, does it not enhance the reputation of the armed forces and the institution by blaming only the individuals. He said in the judiciary there are also some judges as due to their orders/ judgments the institution is criticised. It is not the institution, but the individual in every organisation.

Justice Mansoor asked Makhdoom: do not create precedence that the second review can be filed. He said that the counsel has opened narrow door to re-examine the apex court’s judgment in the ZAB death sentence.

Justice Mazhar asked Makhdoom: do you want to say that the judges, who awarded the death sentence to Bhutto, were not independent, but biased, and were dictated.

Justice Mansoor said in this case we only have the interviews of former chief justice Naseem Hassan Shah, Justice Dorab Patel, and Justice Aslam Riaz and the books written by ex-CJP Naseem Hassan Shah, ex-COAS Aslam Beg and General Faiz Chistti (retd). He said should we not hear those persons against whom the allegations are being levelled.

The bench inquired from the counsel if he wanted to say that all those cases decided during the period of PCO or the martial law should be thrown out. The chief justice said the main issue is from whom the prosecution had taken the instructions for Bhutto’s death sentence case.

Justice Mansoor said conceptually it is right that injustice was done. He; however, questioned how the Court can correct the injustice, “what are its threshold as we are not looking at the merit of the case and the principle, but only see the process.”

Justice Jamal inquired whether the Parliament can annul the judgment of the Supreme Court. Makhdoom replied that it has been done in the cases of Molasses and the Shamraiz. Upon that, Justice Jamal asked whether the Court could give an opinion to the president to take this matter to the parliament.

Justice Musarrat questioned if the Court considers it (Zulfikar Ali Bhutto’s sentence) as murder then as remedy can this Court say that Bilawal Bhutto Zardari and junior Bhutto can claim for Qisas. Makhdoom said that the remedy is not always tangible, but it is for dignity and reputation.

Justice Mansoor said according to the paper submitted by Yasir Qureshi, who is nominated as amicus in this, that there are also other venues to rectify the wrong, i.e., to constitute a National Truth Commission as was set up in Brazil.

Justice Jamal said it would close the door and stop future intervention. He noted that the window available to the Court under Article 186 is very narrow, as the appeal and the review have already been dismissed by the apex court.

The chief justice noted how in criminal cases on the basis of the approver’s testimony the conviction of a person can stand. He questioned can this Court say that it was in this case, and whether would it be binding on the high courts.

Makhdoom said that Justice Qasir Khan in a case said; “I will not hang even a cat on this evidence (the approver’s testimony).”

Makhdoom Ali Khan in his argument referred to the cases of Yousaf Patel and General Augusto Pinochet to substantiate that if there is reasonable suspicion of bias then those cases can be looked at.

The written order said the Supreme Court said amicus curiae Khalid Javed Khan has submitted his response to the court, while the PPP chief’s counsel Farooq H Naek, Raza Rabbani, and Zahid Ibrahim will present their arguments after amicus curiae. The case was adjourned until February 26.

Copyright Business Recorder, 2024