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ZAB reference: Justice (r) Tariq expresses inability to assist

03 January, 2012

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ISLAMABAD: Justice (r) Tariq Mehmood on Monday requested the Supreme Court to excuse him from assisting the court as an amicus curiae in the pending presidential reference seeking a revisit of the murder case of former prime minister and Pakistan People's Party (PPP) founder Zulfikar Ali Bhutto in 1979.

An 11-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry resumed the hearing of a reference filed by President Asif Ali Zardari under Article 186 (advisory jurisdiction of Supreme Court) on Monday.

Justice (r) Tariq Mehmood submitted a request before the court stating that, "In view of the apprehensions shown by Ahmed Raza Kasuri on the amicus curiae, I express my inability to assist the court in the reference – thus it is accordingly, prayed that I may be relieved from the assignment."

He also informed the court that he would be unable to assist the court in the reference as he had been affiliated with the PPP in the past. The court accepted his request and relieved him of his duties.

In his reply to the court's notice, Kasuri questioned the impartiality of seven of the 10 amicus curiae appointed by the Supreme Court to assist it in the reference, saying that they could be friends of the court, but certainly not friends of the complainant (Kasuri).

According to him, Abdul Hafeez Pirzada, Fakhruddin G. Ebrahim, Barrister Aitzaz Ahsan, Abdul Latif Afridi, Barrister Zahoorul Haq, Ali Ahmad Kurd and Tariq Mehmood had a strong leaning and unstinted loyalty towards Bhutto.

The Supreme Court on Monday asked the federation's counsel Babar Awan to cite any judgement from within or outside Pakistan wherein a concluded case has been reopened through a presidential reference.

The chief justice observed that there was no precedent in the law where an already decided case had been reopened. He added that all stages of the trial had been completed in the in the ZAB case.

Chief Justice Iftikhar Chaudhry asked Babar Awan to explain how the ZAB case could be reopened, when all stages of the trial including the appeal as well as review plea, had been followed and completed.

The court noted that the president enjoyed constitutional authority to send any such reference to the court, and asked Babar Awan to give any reference from judicial history of the world, where a constitutional head of the state had sent such a reference and the court had opened the case.

Babar Awan said that this was a case in which the court had to set a precedent. Babar Awan gave various references from Pakistan and India, of some under-trial cases, where judges' bias or prejudice was involved and the cases were transferred to other judges or revisited. However, the court asked him to cite such a case in which trial had been concluded following due process of law, and later the case had been reopened.

Another amicus curiae in the case, Barrister Aitzaz Ahsan told the court that although Kasuri had objected to his assisting the court in the reference, he would continue to assist it in the reference by setting aside his political affiliations with the PPP if the court allowed him.

To a court query, he said that he was a worker of the PPP and his sympathies were always with his party, however he would try his best to assist the court in a neutral manner keeping in mind the law and constitution. The court then asked him to continue assisting the court as amicus curiae.

Meanwhile, the chief justice noted that Azizullah, son of Justice (r) Anwarul Haq, had filed an application before the court to become a party in the ZAB reference case.

Azizullah is the son of former chief justice of Pakistan Anwarul Haq, who had headed a four-member bench and upheld the Lahore High Court verdict of capital punishment to Zulfikar Ali Bhutto. The court directed that copies of Azizullah's application be provided to all the concerned parties. The chief justice observed that only concerned parties of the case were competent to approach the court in the matter.

The court adjourned further hearing for Tuesday (today).


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