Reference for Bhutto verdict reviewL: Lengthy decision shows judges were unconvinced, says SC

ISLAMABAD: The Supreme Court was Monday told that the trial of former prime minister Zulfikar Ali Bhutto (ZAB) was not conducted in a transparent manner and it could declare that the trial was conducted improperly.

A nine-member bench of the Supreme Court — headed by Chief Justice of Pakistan Justice Qazi Faez Isa — heard the presidential reference filed in 2011 by former president Asif Ali Zardari, seeking that the execution be revisited.

The other members of the bench included Justice Sardar Tariq Masood, Justice Syed 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.

Commencing his arguments, amicus curie and former attorney general Khalid Javed submitted that the trial could not be reopened but the court could definitely declare that ZAB’s case was conducted improperly.

He suggested that the court could opine that the trial, conviction and sentence passed by the Lahore High Court and upheld by the Supreme Court by a majority of 4:3 and his unduly hasty execution did not fully meet or satisfy the constitutional standard of a fair, transparent and unbiased trial.

“Thus, it appears to be a case of wrongful conviction and miscarriage of justice,” Khalid Javed submitted. Questioning the maintainability of the reference, Justice Mansoor observed that reviewing the court’s decision in the presidential reference will open the floodgate. Addressing the amicus curie, Justice Mansoor said the courts had good and bad decisions, but what would be the procedure for reviewing the court decision in the presidential reference.

“We can’t see the merits in the case under consideration; the point of bias of the judges was heard by the Supreme Court in the revision case,” Justice Mansoor Ali Shah remarked and asked the amicus curie that his position should be that the judges who decided were not independent, rather they decided under duress. But the material in this respect will have to be provided,” Justice Shah told the amicus curie.

Chief Justice Qazi Faez Isa observed that this was the first case of the trial and the decision in Bhutto’s case was the longest in the judicial history of Pakistan spanning over more than 900 paragraphs.

Justice Jamal Khan Mandokhel observed that such a long decision meant the judges themselves were not convinced. Justice Sardar Tariq said if the decisions of the trial court, Supreme Court and revision were annulled, then the questions of partiality would be answered, but the question was how three decisions could be annulled.

Khalid Javed submitted that the Islamabad High Court former judge Justice Athar Minallah had declared that the decision of Bhutto case was not correct.

Khalid Javed Khan submitted that the court was bound to give an opinion on matters other than the political motives, to which Justice Mansoor said he thought the court could only see the extent of transparency in the case.

The amicus curie submitted that the court will also have to see that the entire state machinery was under the control of dictator Ziaul Haq, and the Lahore High Court judge Aftab Ahmed had said that Zulfikar Bhutto was not a good Muslim.

He submitted that the matter of not being a good Muslim also came to the notice of the Supreme Court, but it did not negate the observation of the judge.

The chief justice inquired whether the LHC judge had said such a thing to which Khalid Javed Khan said the Supreme Court’s written decision carried the judge’s observation.

Justice Mansoor inquired how the Supreme Court could review the case. He said if the requirements of justice had not been met, how the Supreme Court could review it. Justice Isa observed that the Supreme Court could review the decision of any court.

If there was pressure on the independence of judges, and if there was state pressure on them, this could be reviewed,” the CJP remarked.

Justice Mansoor Ali Shah said the transparency of trial could be seen in the case but the procedure should be told. How the Supreme Court in a presidential reference can reopen the trial of a criminal case, he asked.

Khalid Javed Khan submitted that judges were not independent during the martial law period adding that a 9-member bench heard the case and later it was reduced to seven.

Justice Mansoor Ali Shah reminded him that recently the election case was started by a 9-member bench but six judges were left.

Khalid Javed Khan said had the judiciary been independent, Bhutto would not have been hanged adding that it was important to take into account the circumstances of the time when Bhutto was hanged. The judiciary was under severe pressure of the executive, he said.

Barrister Salahuddin, another amicus curie, submitted that the presidential reference had asked whether the decision to punish Bhutto was legally correct or not, while the other side was whether the decision to punish Bhutto was based on bias.

“Why are you ignoring one aspect of the biased issue?” asked the chief justice. “It might have been thought that if he was not punished, tomorrow he will become a prosecutor and impose Article 6 on us,” the chief justice remarked.

These things are not in the Bhutto judgment but are a part of history,” he said. “You are saying that the judge was not independent and therefore justice was lost,” Justice Mansoor Ali Shah asked the amicus curie to which he replied in the affirmative.

Salahuddin submitted that Justice (retd) Naseem Hasan Shah wrote in his book that Chief Justice Lahore High Court Mushtaq Hussain and Attorney General Sharifuddin Pirzada came to meet him and both of them asked him to sit in the Bhutto case appeal.

“I did not agree but two days later the chief justice of Pakistan included me in the appellate bench,” the amicus curie quoted Justice Naseem Hassan Shah as saying adding that before the appellate bench, the plea of partiality against Justice Mushtaq Hussain was also under hearing.

Barrister Salahuddin submitted that if this matter had come to light, then the decision of the Lahore High Court would have been invalidated on this basis. He also referred to Justice Naseem Hasan Shah’s interview with Iftikhar Ahmed in which the chief justice of Lahore High Court had shown his enmity towards Bhutto.

Salahuddin submitted that Naseem Hasan Shah also admitted in the interview that the sentence could have been reduced but Bhutto’s lawyer had upset him.

Meanwhile, Chief Justice Qazi Faez Isa said they will hear the criminal aspect of the matter on Tuesday (today). Aitzaz Ahsan, senior lawyer, also appeared before the court as amicus curie at which the Chief Justice asked him as to why he had not come earlier.

Justice Yahya Afridi told the senior lawyer that someone stated on his behalf that he will not appear. The chief justice said if there was no objection, Aitzaz Ahsen would also be heard.

The chief justice said that amicus curie Manzoor Ahmed Malik would also be heard on the next date of hearing.

Farooq H. Naik requested the court that should hear him first on behalf of Bilawal Bhutto Zardari before the criminal aspect. Later, the court adjourned the hearing for Tuesday at 11:30 am.