14/12/2023
بھٹو سزائے موت ریفرنس۔
12 دسمبر 2023 کی سماعت کا حکم نامہ
The first and foremost constitutional and legal points, in addition to those recorded in order dated 21 April 2011, that require consideration are:
(1) Whether the Presidential Reference is maintainable under Article 186 of the Constitution;
(2) Whether the Presidential Reference requires a factual inquiry, and if so, whether under Article 186 of the Constitution an opinion can be given in this regard;
(3) The constitutional-legal position of the trial and appeal, and its credibility/legitimacy when the person being tried was removed from power by a usurper who himself assumed power and then launched the prosecution of Mr. Bhutto in a criminal case which was filed as ‘untraced’; and
(4) Were certain judge(s) removed from the trial and/or hearing the appeal to secure a particular result.
If the aforesaid aspect is successfully attended to then we will need to consider the trial and appeal which will require expertise in criminal law and procedure. Justice Manzoor Ahmed Malik, former Judge of the Supreme Court, and Justice Assadullah Khan Chamkani, a former Judge of the Peshawar High Court, have vast experience and we want to benefit from their knowledge in this regard, therefore, they are appointed as amici curiae, who may either submit a written brief and/or address us in person. We note that learned Mr. Khawaja Haris Ahmed was the Advocate-General, Punjab and was associated with the Presidential Reference when it was earlier heard and is also a criminal law expert, therefore, he is also appointed as amicus curiae to assist with the criminal law and procedure.
With regard to the criminal law aspects the learned amici curiae may assist on the following:
(1) If, and when, can a murder trial be conducted by the High Court, and to cite local and international precedents;
(2) Was the murder-trial being conducted by the High Court objected to, and if it was, how was the objection attended to
(3) The consequences, if any, of departing from the usual mode of trial;
(4) The admissibility or otherwise of a confessional statement of an approver and to what extent can it be used against a co-accused;
(5) Was there any legal bias, and if so its effects; and
(6) What were the facts leading to reopening the investig*tion, and was it because fresh evidence had been discovered or was it on account of the usurper securing his position.
The Presidential Reference refers to an interview, which we are told was given to Mr. Iftikhar Ahmed of Geo television by Justice Nasim Hassan Shah, who was on the Bench of the Supreme Court which decided the appeal and review.6 Mr. Ahmed Raza Kasuri also refers to his application (CMA No. 5788/2011) and states that he has filed extracts from a book written by the same learned Judge - Constitution, Law and Pakistan Affairs. Mr. Naek states that Justice Dorab Patel had also given an interview about the case.
Office is directed to send copies of the Presidential Reference, all orders and the Report of the Tribunal to the learned amici curiae who may attend to the questions noted above, in order dated 21 April 2011 and in the Presidential Reference. The learned amici may submit their respective written opinions on all or any of the said matters, and on any other aspect which they consider relevant, by Friday, 5 January 2024.
Reference.1/2011
Reference by the President of Islamic Republic of Pakistan Under Article 186 of the Constitution to revisit the case of Zulfiqar Ali Bhutto reported as PLD 1979 SC Page 38-53
Mr. Justice Qazi Faez Isa
12-12-2023