Pakistan’s Supreme Court delivered a landmark judgment recently on the execution of Zulfikar Ali Bhutto in April 1979. Chief Justice Qazi Faez Isa, in his comments on a presidential reference filed in 2011 by President Asif Ali Zardari (who has once again been sworn in as Pakistan’s President) on the matter of a review of the fairness of the trial the former prime minister was subjected to, noted that the verdict passed against Bhutto “violated principles of due process and the right to a fair trial.”
That the trial of ZA Bhutto and his subsequent execution were not fair and in accordance with the provisions of the rule of law have always been the public perception. General Ziaul Haq, from the moment the deposed prime minister reminded him that the constitution spoke of the death penalty for those carrying out a coup d’etat (and Zia removed the Bhutto government in a coup on July 5, 1977), knew that he could not permit Bhutto to live. The grave would either have his corpse or Bhutto’s. Zia went on record with his statement, “I shall hang the bastard.”
His malevolence was crystal clear.
The new move by the Supreme Court is but a validation of what people, including public figures and government leaders around the world, have always felt about the Bhutto trial and execution. In the first place, the Bhutto case, which charged the ousted leader with the murder of the father of Ahmed Raza Kasuri in 1974 -- the charge specified that the target had been Kasuri himself but that his father took the bullet instead -- was never brought before a trial court but before a High Court.
In the second, with the military determined to send Bhutto to the gallows, Masood Mahmood, director general of the Federal Security Force (FSF), which the Bhutto government had formed in 1972, and considered loyal to the fallen leader, turned against Bhutto and told the court that Bhutto had ordered the killing.
Masood Mahmood was subsequently given a new identity and sent out of the country by the Zia regime. He has, till last reports, continued to live abroad, with few if any people knowing of his whereabouts. On the judicial front, the case lost legitimacy when Zia did not permit a Supreme Court judge who had retired, to stay on as ad hoc judge, as was the norm, and continue on the trial bench until the case had been disposed of.
Another judge who had been on leave was not permitted to rejoin the bench because the junta was of the opinion that he could lean toward an acquittal for Bhutto. That was a gross undermining of the judicial system and a clear move to ensure that the former prime minister would have little chance of saving his life.
And this attitude of the Zia regime was strengthened all the more when Maulvi Mushtaq Hussain, who once had been aggrieved by Bhutto’s unwillingness to place him at the top of the Lahore High Court, was placed on the trial bench, first as acting chief justice and then as chief justice. In the course of the trial, Maulvi Mushtaq took advantage of every opportunity to humiliate Bhutto in sharp language.
General Zia knew that with Mushtaq on the bench, he had no reason for worry. Mushtaq used unnecessarily harsh language that belittled Bhutto and frequently lost his temper at the former prime minister’s defense team. It was obvious that he was misusing his position as chief justice to ensure that Bhutto would not have any more chance of returning to public life.
Bhutto’s trial before the High Court was a travesty of justice. In addition to Maulvi Mushtaq Hussain, who functioned incongruously both as chief justice and Pakistan’s chief election commissioner, the bench comprised Zakiuddin Pal, MSH Qureshi, Aftab Husain and Gulbaz Khan. Pal, an old Muslim Leaguer, was viscerally hostile to Bhutto (ref: A History of the Judiciary in Pakistan, by author Hamid Khan). Aftab Husain, a protégé of Mushtaq, was not expected to adopt a position opposed to that of his mentor. The High Court judgement on March 18, 1978 imposed the death penalty on Bhutto and four others accused in the case.
In response, Bhutto filed an appeal against his conviction before the Supreme Court. The appeal, which was heard for months before the High Court judgement was upheld, was heard by the chief justice and eight other judges of the Supreme Court. Bhutto argued against the hostility of Justice Maulvi Mushtaq as also the latter’s holding the offices of both CEC and chief justice. Bhutto’s team also filed an application complaining of bias against him by Chief Justice Anwarul Haq, who rejected the application.
Meanwhile, in the Supreme Court, the number of judges came down to seven from nine. Justice Qaiser Khan was not allowed to continue as ad hoc judge because he retired in July 1978 but should have been permitted to be present on the SC bench till the end of hearings on the appeal. Justice Waheeduddin Ahmed had been ill and requested that the hearings be deferred by a few weeks until he could rejoin the bench. His request was not kept.
Both Qaiser Khan and Waheeduddin Ahmed, who might have seen through the loopholes in the High Court judgement against Bhutto and could have been instrumental in a majority on the bench acquitting Bhutto, were thus not allowed to hear the appeal. In the end, of the original nine judges hearing the appeal, seven sat in judgement on Bhutto. On February 6, 1979, the judgement was four to three against Bhutto. The sentence of death was thus upheld.
Interestingly, all the four judges who upheld the death sentence were from the Punjab, with the other three being from Pakistan’s other provinces. It was a clear sign that Punjabi dominance of the country’s body politic -- the military, civil administration and judiciary -- was the final word in sending the former prime minister to the gallows. A review petition was filed by Bhutto’s lawyer Yahya Bakhtiar before the SC. It was unanimously rejected by all seven judges of the Supreme Court on March 24, 1979.
Despite the flood of appeals from world leaders for clemency to be exercised by General Ziaul Haq, who officiated as both president and chief martial law administrator, Bhutto was hanged at 2.30am rather than at dawn at Rawalpindi jail on April 4, 1979. Before sunrise his remains were helicoptered to his native village Garhi Khuda Buksh in Larkana district and swiftly buried.
The new pronouncement by Justice Qazi Faez Isa of the present Supreme Court now raises the valid question of whether or not those responsible for this gross miscarriage of justice should be tried by the law, either posthumously or, in the case of the judges still alive, in the state of the physical.
Of equal importance is the issue of legally examining the role played by General Ziaul Haq and his army accomplices in influencing the High Court and the Supreme Court in denying justice to Zulfikar Ali Bhutto through passing the sentence of death on him and having his appeal against his conviction rejected. The general and his collaborators need to be censured.
Finally, with reference to Bhutto’s admonition when Zia met him a few days after the coup that the overthrow of an elected government was punishable by death, it becomes necessary to place Zia and all his fellow generals who conspired to overthrow the government on trial for sedition, posthumously or otherwise.
Syed Badrul Ahsan is Consultant Editor, Dhaka Tribune
