ISLAMABAD, April 2: President Asif Ali Zardari on Saturday approached the Supreme Court under its advisory jurisdiction to seek an opinion on revisiting the death sentence awarded to former prime minister Zulfikar Ali Bhutto through a presidential reference under Article 186 of the Constitution. A seven-judge SC bench had upheld by four a Lahore High Court verdict of awarding death sentence to the former prime minister in March 1979 during the military regime of then army chief, Gen Ziaul Haq, who had overthrown the PPP government in July 1977.

The reference has been filed under Article 186 (1 and 2) of the Constitution, which empowers the president to refer any question of public importance to the apex court to seek its opinion on any matter.

The Supreme Court, under constitutional provisions, has the authority to consider the question so referred to it by the president and then report its opinion on the question to the president.

“Time has come to wash the 31-year-old stigma against Mr Bhutto,” Law Minister Babar Awan said hours before filing of the reference. He said two provincial assemblies had already passed resolutions in support of the reference.

The reference signed by the president on Friday was filed two days before Mr Bhutto’s 32nd death anniversary on Monday.

“We have requested the apex court to re-examine the Bhutto case because the judgment handed down by the courts was controversial. The benefit of doubt which should have gone to the advantage of the accused during the trial in criminal cases went in favour of the prosecution,” advocate Arif Chaudhry told reporters outside the Supreme Court premises after filing the reference with Law Secretary Masood Chishti.

A Supreme Court handout said it had received the reference asking for revisiting the Bhutto case reported as PLD 1979 SC pages 38-53 and filed through the law ministry and registered in court as reference 1 of 2011. “The reference is being put up before Chief Justice Iftikhar Muhammad Chaudhry for further processing/disposal,” it said.

A copy of the reference was not given to media because the government wanted to keep it secret. But a legal source confided to Dawn that its contents might be released by the President himself at a function in Naudero on Monday to commemorate Mr Bhutto’s death anniversary. The source said the 18-page reference had put a question mark on the independence of the judiciary by contending that the judiciary was under pressure of the then military government when it had convicted the former prime minister.

To substantiate the argument, the reference has also quoted a television interview of former chief justice Dr Nasim Hasan Shah, who was a member of the seven-judge bench which had upheld the death penalty. Dr Shah had admitted that there was not enough evidence to put Mr Bhutto on death row and that he should have voted against the hanging and felt bad for not doing so.

The filing of the reference has raised many eyebrows. A senior lawyer, who has served the government on many top legal positions, fearing that its acceptance would have serious repercussions because it might open floodgates for many similar questions.

He said presidential references were always filed to remove any confusion about a legal controversy. The acceptance of the reference, he feared, would mean that every government in case of an adverse decision against it would institute a review petition against a decision and on its rejection would be moving a similar reference requesting the court to clarify its position on certain issues.

He said that although he was an opponent of the 1979 Supreme Court decision, he would suggest the government to invoke Article 45 of the Constitution which empowered the president to grant a complete pardon to a convict.

According to legal observers, it is the 10th reference. The last two were filed by former president Pervez Musharraf against the Hasba Bill (2005-06), adopted by the then Frontier Assembly to enforce its own version of Islamic morality through an anti-vice ombudsman enjoying sweeping powers to protect Islamic values.

Former president Farooq Leghari had filed a reference in 1996 to determine whether the president could appoint judges in the superior courts without the prime minister’s advice. Benazir Bhutto was prime minister at the time.

During the course of hearing on the reference, Mr Leghari had dismissed Benazir Bhutto’s second government on charges of corruption. But the apex court had held that the president was bound to follow the advice of the prime minister on the appointment of judges.

Mr Leghari had also filed a reference through Shahid Hamid about the appointment of judges, but later withdrew it when then attorney general Yahya Bakhtiar objected that he had been bypassed.

Governor General Ghulam Muhammad was the first to invoke the constitutional jurisdiction to seek opinion from the highest judicial forum in 1955 on the affairs of the then government. He had filed another reference seeking the court’s opinion whether the then provincial assembly was rightly dissolved or not.

In 1974, Zulfikar Ali Bhutto had filed a reference seeking the apex court’s opinion whether or not to recognise Bangladesh, the former East Pakistan.

Former president Ghulam Ishaq Khan had filed two references in the Supreme Court in 1989. The first was about the utilisation of federal and provincial consolidated funds after the lapse of 120 days.

The second asked whether the president or the prime minister was competent to appoint judges in the superior judiciary.

He withdrew the second reference after the matter was amicably resolved between the head of the state and then prime minister Benazir Bhutto.

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