Islamabad (Web Desk): The Supreme Court on Wednesday observed that that the Pakistan Peoples Party (PPP) founder Zulfikar Ali Bhutto, executed by General Ziaul Haq’s military regime in 1979, was not given a “fair trial” chance by the courts.
A nine-member larger bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin ud Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali, issued its reserved opinion on the reference seeking to revisit the sentence and execution of Z.A Bhutto.
“The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan do not meet the requirements of the fundamental right to a fair trial and due process enshrined in Articles 4 and 9 of the Constitution, and later guaranteed as a separate and fundamental right under Article 10A of the Constitution,” CJP Qazi Faez Isa remarked while announcing the unanimous opinion.
The court, however, said the Constitution and the law do not provide a mechanism to set aside the judgment whereby Zulfikar Ali Bhutto was convicted and sentenced.
In its opinion regarding a question asked in the reference, the court said it cannot reappraise the evidence and undo the decision of the case.
However, the court, in its detailed reasons, shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.
A detailed opinion will be issued later by the SC.
Reading the short order, the CJP said that the judges are bound to "do right to all manner of people according to law without fear of favour, affection or ill will".
"We must, therefore, be willing to confront our past missteps and inffalibities with humility in the spirit of self-accountability and as a testament to our commitment to ensure that justice shall be serving with unwavering, integrity and fidelity to the law," said the CJP.
Justice Isa said that the "reference files that the president of Pakistan has provided us an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of Bhutto under the regime of military dictator Gen Zia ul Haq."
He also read the five questions raised in the reference.
Earlier on February 4, the top court reserved the verdict.
PPP’s Raza Rabbani and complainant in the case Ahmed Raza Qasuri, concluded their arguments.
During the course of proceedings, the Additional Attorney General (AGP) stated that the investigation into the Bhutto case was closed on the order of a magistrate, but its re-investigation was conducted without taking any fresh judicial order.
He said the entire trial was based on an investigation that was not legal, and it seemed that the case was reopened on the then government’s intervention.
Raza Rabbani, the counsel for Sanam, Aseefa and Bakhtawar Bhutto, argued that at the time of Bhutto case, basic human rights were suspended due to the enforcement of martial law in the country.
The Lahore High Court (LHC) and the apex court were not working under the Constitution at that time, while the prosecutor in the case was dictator Ziaul Haq.
He said that martial law was imposed in the country despite the fact political matters between the opposition and the government for new elections were settled.
Raza Rabbani said that at that time, there was a triangle of martial law administrator, the then Chief Justice of Pakistan and the acting Chief Justice of Lahore High Court. The three could have lost their jobs if Bhutto was acquitted, he added.
On the occasion, Ahmed Raza Kasuri said that he had filed a private complaint in 1977. It was said that the accused was very powerful and the sessions judge would not be able to do justice. On that ground, the matter was transferred to the Lahore High Court, he added.
The CJP observed that why he (Kasuri) did not move the court against closure of the investigation into the case, and why it took him three years to do so. How an influential family like him’s could be deterred from filing a complaint, he added.
Justice Mandokhel noted that the complainant even did not challenge the order for closure of the inquiry.
CJP Isa asked Kasuri whether he had reconciled with Bhutto as he had joined the latter’s party and asked for an election ticket. He should not have even met the person who was being held responsible for the murder of his father, he pointed out.
Kasuri said that Zulifkar Ali Bhutto had himself given him (Kasuri) his party’s symbol. He had opposed ZAB due to his four statements.
He said that if the apex court gave a decision in Article 186 it would open a floodgate. He maintained that the presidential reference was not admissible according to the law.
The chief justice remarked that there was a presidential reference before the court and it had to hear it.
The top court reserved the judgment after the respondents concluded their arguments.
It is pertinent to mention that the court’s decision comes after nearly 12 years.
On April 2, 2011, then-president Asif Ali Zardari had approached the apex court through a presidential reference under Article 186 of the Constitution of Pakistan to seek its opinion on revisiting the trial of the PPP founder.
It was filed before the top court under Article 186 (1 and 2) of the Constitution, which empowers the president to refer any question of public importance to the Supreme Court to seek its opinion on an issue.
Zulfikar Ali Bhutto, who took over as president of Pakistan immediately after the fall of Dhaka in December 1971, and later became the prime minister after the 1973 Constitution, was removed from the government through the martial law imposed on July 5, 1977, led by General Ziaul Haq.
On September 3, he was arrested in the case of the March 1974 murder of Nawab Muhammad Ahmad Khan Kasuri. He was released 10 days later after a court found the charges against him "contradictory and incomplete". He was rearrested on the same charges and arraigned before the Lahore High Court (LHC).
On March 18, 1978, ZA Bhutto was declared guilty of the murder and was sentenced to death.
The decision was challenged in the SC and on February 6, 1979, the top court voted 4-3 to issue a guilty verdict and upheld the LHC's decision.
On March 24, 1979, the SC dismissed the appeal and Gen Zia upheld the death sentence.
Zulifikar Ali Bhutto was hanged at the Rawalpindi Central Jail on April 4, 1979, and was buried at his family mausoleum in Garhi Khuda Baksh, Larkana.