Ex-PM Bhutto, hanged in 1979, didn’t get a fair trial, rules SC

ISLAMABAD: The Supreme Court on Wednesday ruled that the proceedings of the trial of former Prime Minister Zulfikar Ali Bhutto (ZAB) and his execution during the military regime of General Ziaul Haq in 1979 did not meet the requirements of a fair trial and due process of law as enshrined in the Constitution.

A nine-member bench of the apex court headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa announced its opinion on the Presidential Reference filed in 2011 under Article 186 of the Constitution, seeking revisiting the ZAB murder case.

Other members of the bench were Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali

The court had reserved its opinion on Tuesday after hearing all the parties as well as amici curiae, having their expertise on criminal and constitutional side for its assistance. Former attorney general Khalid Javed Khan, Aitzaz Ahsan, advocate Faisal Siddiqui, Barrister Salahuddin Ahmed and others had assisted the court on constitutional side, while former SC judge Manzoor Ahmed Malik had assisted the apex court on criminal side of the case.

The court, while answering questions put in the presidential reference, ruled that the proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan did 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 independent fundamental right under Article 10A of the Constitution.

The court, however, held that the Constitution and the law do not provide a mechanism to set aside the judgement whereby ZAB was convicted and sentenced, the said judgement attained finality after the dismissal of the review petition by the court.

The court observed that while performing core duty of administering justice “in accordance with the Constitution of the Islamic Republic of Pakistan and the law, we (judges) are bound to do right to all manner of people, according to law, without fear or favour, affection or ill-will.”

The court noted that there had been some cases in the judicial history that created a public perception that either fear or favour deterred the performance of judges duty to administer justice in accordance with the law.

“We must, therefore, be willing to confront our past missteps and fallibilities with humility, in the spirit of self-accountability, and as a testament to our commitment to ensure that justice shall be served with unwavering integrity and fidelity to the law,” the court held, adding: “We cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes.”

The opinion observed that advisory jurisdiction, under Article 186 of the Constitution, required the court to render an opinion on any question of law of public importance referred to by the president. “To us, the question of law, in essence, is whether the requirements of due process and fair trial were complied with in the murder trial of Mr Zulfikar Ali Bhutto, the former Prime Minister of Pakistan, by the trial court (the Lahore High Court) and the appellate court (the Supreme Court),” the court observed.

“This question we approach and answer considering whether the trial court and the appellate court attended to and dealt with the requirements of due process and fair trial.”

The apex court noted that the reference filed by the President of Pakistan has provided them an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of ZAB under the regime of military dictator General Ziaul Haq.

“The reference was filed during the government of the political party founded by Mr Bhutto but the successive governments of other major political parties carried forward this inquiry and did not opt to withdraw the reference,” the court noted, adding that the collective interest reflected the widespread desire of the people of Pakistan to seek the opinion of the Supreme Court on whether ZAB was offered a fair trial and due process for his trial for the murder of Muhammad Ahmed Khan Kasuri.

“With the able assistance of the eminent legal minds of the country, we for the reasons to be recorded later and subject to amplifications and explanations made therein, render an opinion on the referred questions in the following terms:

Question (1)

Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guaranteed under Article 4, sub-Articles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973? If it does not, its effect and consequences?”

The court, while giving its opinion to the first question, held that the proceedings of the LHC trial and of the appeal by the Supreme Court 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 independent fundamental right under Article 10A of the Constitution.

The court, however, noted that the Constitution and the law do not provide a mechanism to set aside the judegment whereby ZAB was convicted and sentenced; the said judgement attained finality after the dismissal of the review petition by the apex court.

Question (2)

Whether the conviction leading to execution of ZAB could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution? If not, its effect and consequences?

The apex court held that the referenced questions did not specify the principle of law enunciated by the court in the ZAB case regarding which court’s opinion was sought. Therefore, it could not be answered whether any principle of law enunciated in the case had already been dissented to or overruled.

Questions (3) and (5)

Whether in the peculiar circumstances of the case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against ZAB?

Whether on the basis of conclusions arrived at and inferences drawn from the evidence/ material in the case an order for conviction and sentence against Shaheed ZAB could have been recorded?

Answering these questions, the court held that in its advisory jurisdiction under Article 186 of the Constitution, the apex court could not reappraise the evidence and undo the decision of the case. “However, in our detailed reasons, we shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.”

Question (4)

Whether the decision in the case fulfilled the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (SAW)? If so, whether present case was covered by doctrine of repentance specifically mentioned in the following Suras of Holy Quran: (a) Sura Al-Nisa, verses 17 and 18; Sura AlBaqara, verses 159, 160 and 222; Sura AlMaida, verse 39; Sura Al-Aaraaf, verse 153; Sura Al-Nepal, verse 119; Sura Al-Taha, verse 82; as well as (b) Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395.

What are effects and consequences of doctrine?

Answering the question, the court noted that they were not rendered any assistance on this question, therefore, it would be inappropriate to render an opinion.

Earlier, during the announcement of the court’s opinion, Pakistan Peoples Party (PPP) Chairman and ZAB’s grandson Bilawal Bhutto Zardari was present in the courtroom alongside his lawyers Farooq H Naek and Mian Raza Rabbani.

Meanwhile, PPP leaders and lawyers lauded the SC opinion, removing the stain from ZAB case.

The PPP chairman said that the court had made a historic decision and the detailed verdict wass awaited.

“It is hoped that after 44 years, the future of Pakistan, its judiciary and democracy will be bright after this decision,” he said while addressing the media after the Supreme Court’s announcement.

Bilawal said that the Supreme Court has accepted that Quaid-e-Awam Shaheed Zulfikar Ali Bhutto was denied a fair trial.

He said that the judiciary clearly stated that it had made the decision to rectify the mistakes of the past. He said the decision was a stain on the institution of judiciary. “It was difficult for the common man to expect justice from an institution that could not provide it to Shaheed Zulfikar Ali Bhutto,” he added. The PPP chairman expressed his gratitude to the judges, lawyers and the amici curiae. “We are grateful to them for fighting Shaheed Zulfikar Ali Bhutto’s case, and it is hoped that our system will change for the better after this.” Senior advocate and Bilawal’s counsel Farooq H Naek said: “It’s a historic verdict as a wrong that was done 44 years ago has been undone.”

He said the judiciary had removed the stain which was imprinted for the judgement in the Bhutto case. “The Supreme Court has established that the present judges are independent and are willing to rectify the mistakes committed in the past on account of intervention by the military dictator which orchestrated the judicial murder of Bhutto illegally and unconstitutionally,” Naek told The News

Similarly, former Senate chairman and PPP leader Mian Raza Rabbani said that it was a historical day when a wrong done in the judicial history of the country had been corrected. He further said that it’s a day when institutions realised the wrong done and had the moral courage to admit it and correct it. “Today, because of this opinion, the image and confidence of common Pakistani in the Supreme Court has increased,” Rabbani told The News.

Meanwhile, Prime Minister Shehbaz Sharif, while congratulating the PPPP leadership and workers, including Bilawal and President-designate Asif Ali Zardari, said that by admitting the mistake in ZAB trial, the Supreme Court’s opinion on the presidential reference had set a new history and tradition.

“It is not possible to correct the past mistake but by admitting the serious mistake, a new history and a new tradition have been set,” he remarked in a statement.

He said that rectification of an injustice of a court by the court was a positive development.

“The unanimous opinion of the Supreme Court in the Bhutto reference will help understand the history at the national level through the right perspective.

“The process of national unity and development can be accelerated only by correcting the past mistakes and doing away with the bitterness,” the prime minister remarked.