It is a matter of national shame for us that the sentence of death and subsequent execution of the Prime Minister should have been described even by some eminent foreign jurists as "judicial murder"; it was a reflection not only on the validity of the charge made up against him but also on the very conduct of trial. It is a pity that the superior trial and appellate courts, which should always be above mistrust and suspicion, had to earn this accusation from neutral observers because they succumbed to unseemly pressure from the military dictator, General Zialul Haq. In ordinary circumstances, such a trial would have been vitiated and could have caused disqualification of the judges who sat on the two benches.
It is indeed significant that the Prime Minister, who was named by the presiding judge himself as the "principal accused", was not directly charged with murder but was arraigned for conspiracy to kill --- a man who is still alive.
According to jurists, the trial lost its credibility not only because of the patent bias and partial conduct of the proceedings but also because the procedures adopted by the courts were themselves suspect. It was indecent haste which caused circumvention of judicial norms, and the entire proceedings, both at the trial and appellate stages, left serious doubts lurking in dispassionate minds.
It is in this perspective that some persons, who have the good on the country at heart, are suggesting a retrial of the case against the late Prime Minister by the High court and the supreme court in order to "restore the majesty of the law and the dignity of the superior judiciary in Pakistan". the real culprit responsible for impairing the image of the judiciary was General Zialul Haq, Chief Martial Law Administrator, assisted by the two Chief Justices, Mushtaq Hussain and Anwar -ul-Haq, who lent him their noble judicial position in bringing the conspiracy against the Prime Minister to fruition.
These were the two judges who also lent legality to the imposition of martial law and prepared the ground for amendment of the Constitution itself to help achieve the evil designs to the dictator. It was with the blessings of these two that Zulfiqar Ali Bhutto was removed from the scene and a usurper was able to rule the country for eleven long years and, in the process, destroyed many of its valuable institutions.
According to the author, General Zia had told members of the Pakistan Bar Council that he had secured total collaboration from the two Chief Justices in giving effect to the idea of inserting Article 212-A in the constitution; that they had seen the draft amendment and approved it. The General posed a question to the Bar Council members: how could he be blamed when the highest judiciary itself had accepted the imposition of martial law and the establishment of military tribunals at its own cost?
Article 212-a was made part of the Constitution by presidential Order 21 of 1979 which contemplated the setting up of military courts precluding the superior judiciary from entertaining any applications in respect of matters to which the jurisdiction of the military courts extended. It was with the inspiration provided by this conduct of the Chief Martial law Administrator that the trial and appellate courts presided over by Mushtaq Hussain Anwar-ul-Haq secured the elimination of an elected prime minister whom the military junta considered its arch-foe.
The Bhutto case occupies a singular position in the history of criminal trials in the country. Frankly, the murder charge was just a cover for a conspiracy by international forces to get rid of a man who was seen not only as a potential leader of the Third World, particularly the Islamic World, but also as the initiator of Pakistan’s nuclear program. The foreign interests ensured that he met the desired end by fair means or foul, and the agency they selected for this heinous job was General Zialul Haq.
It should be more widely known that General Zia, the so-called harbinger of Islamization, fully aware of the injunction of Islam that the death penalty under the Shariah could only be awarded to the actual killer and not to a conspirator of abettor tot he crime. The laws of Qisas and Diyat were therefore kept dormant on purpose and Mr. Bhutto was allowed to be tried under the British Penal Code, as adapted for Pakistan. The Islamic criminal law was not made applicable in the country till after the hanging of the Prime Minister; thus, depriving him of the leniency that the Shariah envisages for an accused who is not he actual perpetrator of a crime involving murder.
Obviously, this was a well-planned move on the part of General Zia who wanted to take no chances whatsoever in the physical elimination of Mr. Bhutto through a so-called judicial process. He was conscious of the fact that Mr. Bhutto would prove to be extremely dangerous to him if left alive, for the Prime Minister was very well-connected at the international and national level and could stage a triumphant comeback. Hence, the haste with which the formalities of the trial were completed and some of the hallowed judicial norms were thrown to the winds in the process.
It was in pursuance of this aim that Mr. Bhutto was denied trial at the sessions level which is otherwise imperative to meet the ends of justice and is the established procedure in criminal jurisprudence. The main reason for holding a trial initially by a Sessions Judge is to provide the accused with the opportunity to appeal before the High court in the event on his conviction. Further, it enables tow judges of the High Court to assess the reasoning adopted b the lower court. All this was ignore and bypassed.
A Division Bench of the Lahore High Court was already inquiring into a private complaint of Ahmad Raza Kasuri about the same incident. The bench was also seized of the bail matter. An incomplete challan was meanwhile submitted in the court of a magistrate of Lahore which was immediately forwarded to the Session Court.
The apprehensions of the petitioner about the partiality of Justice Mushtaq Hussain were substantiated when the latter transferred the incomplete challan from the lower court to the High Court on the same day when Mr. Bhutto was enlarged on bail by a division bench presided over by Mr. Justice Samadani. And on the same day, as acting Chief Justice he passed an order constituting a special bench of five judges, presided over by himself, for the trial of the challan case. The withdrawal of the matter from the lower court to the High court was decided without hearing the accused or his counsel, and only confirmed the bias.
The way, the whole issue was being treated is evident from what Mushtaq Hussain told a German diplomat who had posed a query about the transfer of the case. He said, "Because no other judge would be able to control the accused".
Professor F. C. Crone of Copenhagen, who had followed the proceedings of the case, commented in the journal ASIA WEEK of 5 May, 1978 that the trial could not, by any standard, be characterized as fair. It appears, he wrote, that the coup generals see Bhutto’s death---his judicial murder---as a logical necessity of removing a dangerous political enemy.
Some other factors that vitiated the trial and displayed bias and partiality, bordering on virtual hostility towards the principal accused, have also been indicated by the author.
A special dock was ordered to be built for the accused Prime Minister in the court and he was made to take his seat there. A caged Bhutto was flanked by senior police officers whose presence obstructed his contact with his counsel. Protest against this arrangement was dismissed.
Extremely limited time was afforded to the Prime Minister to get his defence ready before a full bench trying him on a capital charge, and for preparing the case which involved the scanning of thousands of pages of evidence and case law.
The prosecution was not only patronized but its version in the court was given wise publicity through the government media while the defence version was deliberately suppressed.
During and before the trial General Zia had publicly declared that Z. A. Bhutto was a murderer and would not escape punishment. No notice was taken by the trial court of this prejudiced statement. Both the Chief Justices had also spoken to foreign pressmen projecting their "efforts" to ensure a fair trial. Such observations are never made anywhere in the world when a matter is sub judice, for it is presumed that a superior court takes no sides.
Again, as the trial was going on, the military government got published and circulated two "White Papers" on the five and a half years of the Bhutto regime. These propaganda documents were widely released abroad and were picked up by radio and TV networks. No protest in this behalf was considered relevant.
Defence counsel received rather rough treatment in the open court, smacking of prejudice and one-sideness. The Chief Justice would personally rebuke them if they said anything which did not please him and his concept of "a fair trial". The accused Prime Minister would be sent out of the court room frequently when he made counter remarks in response to the utterances of the presiding judge, and the proceedings would continue in his absence.
Despite repeated applications by the accused charging the court with bias, the transfer of the case to another court was not allowed. Also, though he had been released on bail by another bench of the same High Court, he was arrested under a martial law order and produced before the full bench without getting the order of the High Court rescinded. On top of this, the statutory period of 30 days for filing an appeal was reduced to a mere seven days. Benefit of doubt was given to the prosecution on numerous occasions instead of allowing it in favour of the accused, which is the normal judicial practice.
Allegations of bias and partiality against the Chief Justice of the Lahore High Court (the presiding judge) were repeated in the Supreme court while preferring an appeal there, but they were dismissed out of hand. The Chief Justice of the Supreme court observed that though some orders of the trial court were not called for, they were matters well within the discretion of the presiding judge.
Significantly, former Chief Justice of Pakistan Dr. Nasim Hassan Shah who was a member of the Supreme court Bench finally confirming death sentence has conceded that Bhutto could have escaped the gallows and his death sentence reduced easily. In his opinion there was a strong case for it and he had asked Yahya Bakhtiar to argue it. But the counsel did not urge it perhaps for the reason that he was seeking a clear acquittal. But the court could not act suo motu to save him from capital punishment. It could not be more loyal than the king the judge said.
Dr. Nasim Hassan Shah volunteered these contentions in a startling press interview to the daily Jang (August 23, 1996) squarely substantiating the conclusions drawn by the author of this book.
He did not mince words to indicate the bias of the presiding judge trial court, Maulvi Mushtaq Hussain, who bore personal grudge against Mr. Bhutto. The grudge was that he as Prime Minister, had him superseded by a junior judge while appointing Chief Justice of the Lahore High court. The former Chief Justice has no hesitation in averring that Maulvi Mushtaq Hussain should have avoided naming himself as a member of the trial bench (to maintain the dignity of the court in the principled tradition of justice).
It was in this context that during the trial, Maulvi Mushtaq Hussain had made uncalled for personal remarks provoking Bhutto to boycott the proceedings.
Dr. Nasim Hassan when confronted by the interviewer admitted that never before in the judicial history of the country any abettor was awarded capital punishment.
He further hinted that both General Ziaul Haq and Maulvi Mushtaq had fears that Bhutto’s survival could be risky for them. So he should better be eliminated first and no chances taken.
"I am very sorry it had to be done, had to be done".----a belated remorse by the judge who perhaps now suffers pricks. Emphasis by the judge on "had to be done" speaks for itself.