fter a 12-year hiatus, the Supreme Court of Pakistan has resumed the hearing of a presidential reference for the review of former prime minister Zulfikar Ali Bhutto’s case. The apex court’s decision to take up the reference, filed in 2011, has been described by some commentators as a bid to repair the image of superior judiciary. The Pakistan Peoples Party has maintained that the former prime minister’s prosecution was mala fide and that his conviction and execution amounted to of its founder to be a ‘judicial murder.’

In the hearing on December 12, a nine-member bench, headed by Chief Justice Qazi Faez Isa, appointed nine amici for assistance. The court stated that if they so wished, any of the grandchildren of ZAB could become a party to the case.

Bilawal Bhutto, the PPP chairman, is already a party to the case. PPP veteran Aitezaz Ahsan, through his assistant, declined the offer to be an amicus. The hearing will resume in the third week of January 2024.

Zulfikar Ali Bhutto, was hanged on April 4, 1979, following his conviction for the murder of Nawab Mohammad Ahmad Kasuri in 1974. The complainant, Ahmad Raza Kasuri, the Nawab’s son, also attended the proceedings.

Late Khalid Ahmad Khan Kharal, who had been close to both ZA Bhutto and Benazir Bhutto, had once told this scribe: “All those involved in ZAB’s judicial murder – Gen Zia, Ahmed Raza Kasuri, [Justice] Maulvi Mushtaq and [Justice] Anwar-ul Haq had personal vendettas against Bhutto.”

Ahmed Raza Kasuri was elected a PPP MNA in 1970. Later, he developed differences with Bhutto. The PPP sought his resignation as a member of the National Assembly but he refused to oblige. When he was expelled from the party, he joined the Tehrik-i-Istaqlal. Later, he also refused to sign the 1973 constitution. When his father was injured in a gun attack in Lahore and succumbed to his injuries, he nominated Bhutto, then prime minister as a suspect. A police inquiry exonerated Bhutto. Kasuri later tendered an apology to Bhutto, re-joined the PPP and applied for the party ticket for the 1977 election. However, his request as turned down.

When Bhutto was removed and a martial law imposed, the case was revived and a five-member bench of Lahore High Court, headed by Justice Mushtaq tried Bhutto and four alleged accomplices for murder. The court found the accused guilty and on March 18, 1978, sentenced them to death. It has been suggested that Maulvi Mushtaq had borne Butto a grudge for not having appointed him as LHC chief justice.

Bhutto’s lawyers appealed against the LHC’s verdict in the Supreme Court of Pakistan and a nine-member bench was constituted to hear the case. After one of the judges retired and another was taken ill, the remaining seven-member bench, headed by Chief Justice Anwar-ul Haq, upheld the LHC verdict with a four-three majority. The review petition was also dismissed.

Gen Zia rejected the mercy petition by Bhutto’s family and similar requests by various global leaders.

Bilawal Bhutto,the PPP chairman, is a party to the case. PPP veteran Aitezaz Ahsan, through his assistant, has declined the offer to be an amicus. The hearings will resume in the third week of January 2024.

In 2011, the then president Asif Ali Zardari filed a reference under Article 186 in the Supreme Court of Pakistan, raising five questions:

(1) Whether the decision of the Lahore High Court as well as the Supreme Court in the murder trial against former prime minister Zulfikar Ali Bhutto meets the requirements of fundamental rights as guaranteed in the Constitution under Article 4(1) and (2a) (right of individuals to be dealt with according to law), 8 (laws inconsistent with or in derogation of fundamental rights to be void), 9 (security of persons), 10A (due process), 14 (inviolability of dignity of man), 25 (equality of citizens)? If it does not, what are its effects and consequences?

(2) Whether the conviction leading to the execution of Zulfikar Ali Bhutto 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 that asks the courts to follow apex court’s judgment? If not, its effects and consequences?

(3) Whether in the peculiar circumstances of this case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Zulfikar Ali Bhutto?

(4) Whether the decision in the case of the murder trial against Zulfikar Ali Bhutto fulfils the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him). If so, whether present case is covered by doctrine of repentance specifically mentioned in different surahs of Holy Quran: Surah Al-Nisa: verses 17 and 18, Surah Al-Baqara: verses 159, 160 and 222, Surah Al-Maida: verse 39, Surah Al-Aaraaf: verse 153, Surah Al-Nehal: verse 119, Surah Taha: verse 82 as well as Sunan Ibn-i-Maaja, Chapter 171, Hadith No. 395. What are the effects and consequences of the doctrine of repentance? and

(5) Whether based on conclusions arrived at and inferences drawn from the evidence/ material in the case an order for conviction and sentence against Zulfikar Ali Bhutto could have been recorded.

A five-member bench, headed by the then chief justice, Justice Iftikhar Chaudhry, had started proceedings on the reference. After five hearings were held till 2012, it was adjourned indefinitely. Eleven years later, Bilawal Bhutto, the PPP chairman, has requested the Supreme Court to resume the hearing. All judges in the previous bench have retired since then and most of the previous amici are no longer available. Dr Babar Awan, the then PPP counsel, is now in the PTI camp.

Talking to The News on Sunday, lawyer Abid Saqi, says: “Former president Asif Ali Zardari, under Article 186 of the Constitution, has sought the SC’s opinion about a question of law: As a result of the misapplication of the law, ZAB became a victim of judicial murder. The proceedings were not independent. The way he was convicted was against the law. The decision of his hanging was beyond the parameters of justice.”

To a question about the maintainability of the reference after such a long delay, he says: “Bhutto’s hanging was a result of an extraordinary decision by the court in an extraordinary situation.Therefore, the SC can hear it. The proceedings will result in the formation of a legal opinion, which will become law for the future. Even though history cannot be rewritten, the verdict can show that the previous order was a miscarriage of justice. Some of the judges later confessed that they had convicted Bhutto under pressure. The judiciary can treat it as an extraordinary case.”

The writer is a senior journalist, teacher of journalism, writer and analyst. His X handle: @BukhariMubasher