n March 1979, a Supreme Court bench, headed by the then chief justice Anwar-ul Haq, upheld Zulfikar Ali Bhutto’s death sentence. On March 6, 2024, a nine-member SC bench, headed by Chief Justice Faez Isa, unanimously stated that Bhutto had not been given a fair trial.

Even though the verdict came 44 years too late, it might help repair the image of the Judiciary.

Announcing the short order after marathon hearings of the Presidential Reference, Justice Isa said, “Zulfikar Ali Bhutto did not get a fair trial; this is our opinion. Zulfikar Ali Bhutto’s trial was not according to the constitution and law. In its advisory jurisdiction under Article 186 of the constitution, this court cannot re-appraise the evidence and undo the decision of the case. However, in detailed reasons we shall identify the major constitutional and legal lapses that occurred with regard to the fair trial and due process. The trial in the Lahore High Court and the appeal proceedings in the Supreme Court did not follow fundamental rights.”

“We must… 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 must be served with unwavering integrity and fidelity to the law. We cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes,” the CJP stated.

Earlier, the apex court had resumed the hearing of a presidential reference filed 12 years ago for the review of former prime minister Zulfikar Ali Bhutto’s case. The Pakistan Peoples Party has maintained that the former prime minister’s prosecution was mala fide and that his conviction and execution amounted to a ‘judicial murder.’

In the hearing on December 12, the apex court had 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. PPP chairman Bilawal Bhutto was a party to the case. Bhutto’s surviving daughter Sanam Bhutto and his grandchildren Zulfiqar Ali Bhutto Junior and Fatima Bhutto also became parties through their counsel.

Justice Manzoor Malik, a retired judge of the Supreme Court, who was appointed as an amicus curie, exposed several weaknesses in the procedure while highlighting the criminal aspects of the case. He said that there had been no precedence for a murder case trial in a high court.

He said that the then-acting LHC chief justice, Maulvi Mushtaq Hussain, who headed the five-member bench, had expressed personal dislike for Bhutto but kept sitting on the bench.

Malik said Mushtaq Hussain’s presence despite a personal grudge was beyond malice. He also said the other four judges, who signed the order, should also have declined to hear the case. “It appears that they were hearing the case to punish Bhutto.” He said a crime bearing the death penalty could not be tried in a high court. Citing the example of India, he said, “Indian high courts have never conducted direct trial of a murder case.”

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.

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 party ticket for the 1977 election. However, his request was turned down.

“Zulfikar Ali Bhutto did not get a fair trial, this is our opinion. Zulfikar Ali Bhutto’s trial was not according to the constitution and law. In its advisory jurisdiction under Article 186 of the Constitution, this court cannot reappraise the evidence and undo the decision of the case.”

When Bhutto was removed and Gen Zia imposed martial law, the case was revived and a five-member bench of Lahore High Court, headed by Justice Mushtaq Hussain 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 Husain bore Bhutto a grudge for not appointing 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, 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 some global leaders.

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 the 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, it was adjourned indefinitely. Eleven years later, Bilawal Bhutto, the PPP chairman, requested the Supreme Court to resume the hearing. All judges in the previous bench have retired since then and most of the previous amici were no longer available.

Reactions to the SC verdict have been positive. In a post on X, Bilawal Bhutto Zardari said that the SC’s opinion came “44 years after judicial murder and more than 12 years after [the] presidential reference was filed.” “The pursuit of justice was a labour of love by President Asif Ali Zardari in the name of his wife Shaheed Mohtarma Benazir Bhutto. Our family waited three generations to hear these words.”

Zulfiqar Junior congratulated and lauded his cousin Bilawal Bhutto, saying, “I am proud of my cousin for gracefully attending the proceedings.”

On March 13, the National Assembly passed a resolution lauding the Supreme Court for its verdict and demanding the overturning of the death sentence given to Zulfikar Ali Bhutto. The resolution also demanded that the federal government officially declare Bhutto a “shaheed” and a National Democratic Hero, and start a Nishan-i-Zulfikar Ali Bhutto award for activists who sacrifice their lives for democracy in Pakistan.

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