The Supreme Court on Tuesday asked the counsel for referring authority, Attorney General for Pakistan, advocate generals and a panel of amicus curiae to assist it with judicial precedents in which superior judiciary had invoked its powers to give opinion 'over past and closed transactions'.

An eleven-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry seized with hearing of a Presidential reference, seeking its opinion under Article 186 over case of late Zaulfikar Ali Bhutto, frequently sought assistance over the five questions framed by the referring authority.

The CJ told Dr Babar Awan that certain objections had been raised over the Presidential reference by the complainants, but if they had to exercise their curative jurisdiction, then they would require judicial precedents.

Justice Mian Saqib Nisar asked what would be the forum on which they could exercise their jurisdiction.

Dr Babar replied that the courts had never accepted such a verdict under which a person was hanged in such a dubious manner while the Supreme Court had wider jurisdiction under Article 186 to undo such fallacious finding.

The Chief Justice said that they could not revisit the case, however, they could give their opinion subject to availability of judicial verdicts.

Justice Saqib Nisar questioned whether the President as head of state could invoke the curative jurisdiction when a grave injustice came to his notice. Dr Babar responded that the President in that case would have to approach the Courts.

Justice Mian Shakirullah Jan observed that being a constitutional head of state, the President had the authority to grant clemency under Article 45 of the Constitution.

The counsel maintained that in that case too, the courts had the powers to undo and recall its verdicts. He referred to various judicial verdicts including an Indian case in which court had exercised its advisory powers. But the CJ disagreed with his contentions and said the judgements he referred to, were not curative.

The counsel said that it was unique case in the judicial history of the country in which a trial was initiated in the lower court without issuance of a notice to the accused, and without providing an opportunity to consult with the lawyers while the case also stood transferred to the High Court.

Reading out a passage from the judicial proceedings at the subordinate judiciary, he contended that people like Farooq Baidar acted as prosecutors and amicus curiae.

"Even on slightest indication of discomfort during proceedings, registration of case was ordered against ZAB," he added.

The Chief Justice again reminded him that they had to utilize his contentions but for that purpose, he would have to show them the appropriate forum.

Attorney General for Pakistan Molvi Anwarul Haq in his arguments said that though he was unable to find a specific judicial verdict related to the reference, but he cited an Indian verdict of 1992 AIR, over a water dispute between two states of Karnatika and Kerala.

The Indian Supreme Court in that particular Presidential reference had exercised its advisory jurisdiction.

To bench's query, he replied that the case was not a concluded by the superior judiciary but it was adjudicated upon and a tribunal was tasked to resolve controversy between two states. He said the Indian Supreme Court in its verdict held that there were facts involved in the reference, therefore, it had to intervene.

He contended that the Court had no bar if it reached to a conclusion that no admissible evidences were corroborated to convict someone. Justice Nasir ul Mulk promptly remarked "What will be consequences if it is held that trial was vitiated and verdicts of High Court and Supreme Court would be set aside." Or the things would be otherway round, should the Court say that it could not answer it and return it.

However, the AG could not respond to a question raised by Justice Tassaduq Hussain Jillani who asked him whether they were only seeking a declaration and not the consequences.

Justice Sarmad Jalal Osmani observed that in past, references were made out when Presidents had to decipher constitutional issues.

Justice Jawwad S. Khawaja remarked that they were still groping with the legal issue and at any stage if the question arises about the trial, then what would they had to do?

The AG responding to question stated that the President had the authority to determine the issue of public importance which was never questioned by the Court.

Agreeing with Justice Jawwad's point, he said whenever questions of law arose, it became domain of the Courts to answer. Advocate General Punjab Hanif Khatana strongly opposed to hearing of the Presidential reference and said that he could not find a precedent in similar cases in which the courts had used their advisory jurisdiction.

He argued that the Supreme Court in its 1997 decision, had held that the decision of appellate forum was binding even in case of advisory jurisdiction.

Further hearing was adjourned till Wednesday after the bench asked Fakharuddin G. Ebrahim and other amicus curiae to assist it over the maintainability of the reference.