ISLAMABAD: The Supreme Court questioned whether it can amend the questions referred by the President of Pakistan, and in light of the Islamic teachings what is the role of the approver?

A nine-member SC bench, headed by Chief Justice Qazi Faez Isa, 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, on Wednesday, heard a Presidential Reference.

Attorney General for Pakistan (AGP) Mansoor Usman Awan told the court that the federal government will go by the submission of former Justice Manzoor Ahmed Malik, a former judge of the Supreme Court.

The bench directed the attorney general that after getting instructions from the government, he should inform on the next date under what circumstances Masood Mehmood, who was initially an accused in the murder case of Nawabzada Muhammad Ahmed Khan Kasuri, later became an approver against Zulfikar Ali Bhutto case.

The court was informed that after the judgments in the Bhutto case, Masood Mehmood went to America and died in California in 2022.

The chief justice asked Justice Manzoor why this case was not heard in the last 10 years.

However, Justice Manzoor did not respond. The CJP asked the same from Farooq H Naek, who represented Chairman Pakistan Peoples Party (PPP) Bilawal Bhutto Zardari.

Ahmed Raza Kasuri, a complainant before the Lahore High Court in the Bhutto case, asked the court; “Have we crossed the bridge of admissibility of Reference,” adding Justice Manzoor has gone into the nitty-gritty of the case, which shows rather as a friend of court he argued like the defence counsel.

The chief justice stated in the presence of everyone, including you, they had appointed the amici, but he did not object to his (Justice Manzoor) nomination at that time.

Justice Manzoor concluded his submission, at the end, he said first, the court has to assume the jurisdiction and then it could respond to the questions of law, referred by the President. He questioned whether the trial can be conducted and concluded when the judge is biased.

Justice Mansoor Ali Shah said we all agree that there was miscarriage of justice, but inquired, can it be fixed under Article 186 of the constitution or can be done in other jurisdictions like curative jurisdiction.

“We have no shame in correcting the wrong/ errors.” He proposed that the Parliament can legislate on it.

The chief justice remarked: do we leave as precedent that the High Court can conduct murder trial, and without confirmation, there can be a conviction, and without court order, a case, which is earlier closed on its order can be reopened.

The CJP said he had understood the questions; therefore, would not put much emphasis on the language. “We need to understand the substance of the questions,” he further said.

Justice Yahya said they would not go into the merit of the case, but they have to see whether the requirement of Article 4 was met and the due process was complied with in the trial of Bhutto. “We would see whether the process in it (Bhutto case) was in accordance with the law or not?”

The chief justice inquired from Farooq H Naek, who represented the chairman PPP, who drafted the questions in Presidential Reference. Naek responded that it was drafted by Babar Awan, who was the law minister at that time.

The chief justice then inquired where he is now. Naek replied he has left the PPP and joined the Pakistan Tehreek-e-Insaf.

The chief justice said no one had assisted the court on Islamic principles. He asked what the value of an approver in Islam is, adding if the Islamic jurisdiction is not applicable in this case then why do the Court follow the UK or USA jurisdiction.

Justice Faez said suppose two persons decide to kill someone, then how one could be sentenced, and the other is freed without any punishment. The CJP noted that in order to form an opinion on the questions of law the judges sometimes have to go into the facts of the matter.

Justice Yahya remarked that he does not want to substitute the Lahore High Court judgment in Bhutto’s case, but would like to see the facts of it, regarding the matter.

Justice Hilali questioned how without confirmation there could be conviction. How the five judges of the High Court in the Bhutto case assumed the jurisdiction and heard the case and the FIA investigated the case.

Aitzaz Ahsan asked the court to give an opinion that the conviction was unlawful and unconstitutional, due to discretion and bias.

The environment was vicious as there was institutional bias against Zulfikar Ali Bhutto and the PPP, he added.

Upon that, Justice Yahya said the Supreme Court in appeal of Bhutto had dealt with this issue and declared that there was no bias. He asked Aitzaz not to generalise that the institution (judiciary) was biased and that Ziaul Haq, being the Martial Administrator, was controlling the judges. He said out of seven judges of the Supreme Court three had dissented with the majority judgment.

The case was adjourned until March 4.

Copyright Business Recorder, 2024