The Supreme Court of Pakistan on Wednesday issued its reserved opinion on the trial, sentence, and execution of the late prime minister Zulfikar Ali Bhutto, saying that he did not get a chance to a “fair trial”.
A nine-member bench of the top court, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, reserved its opinion on the 2011 presidential reference seeking to revisit the sentence, and execution of the Pakistan Peoples Party (PPP) founder and former premier Bhutto on Monday.
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The bench also comprises Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.
“Zulfikar Ali Bhutto did not get a fair trial and it was not in accordance with the Constitutional requirement of due process,” said CJP Isa while announcing the short order.
The court’s decision comes after nearly 12 years after a presidential reference seeking to revisit the sentence, and execution of the PPP founder and former premier was filed by former president and PPP Co-chairman Asif Ali Zardari.
Bhutto was executed on April 4, 1979, following a verdict of the Supreme Court in a murder case that his party termed as “judicial murder”.
The reference — filed by Zardari on April 2, 2011, under Article 186 of the Constitution — was taken up by the Supreme Court’s 11-member larger bench headed by former chief justice Iftikhar Muhammad Chaudhry which held five hearings of the reference.
On December 12, 2023, the reference hearing resumed under a nine-member bench headed by CJP Isa following a decision to fix an instant case under the Supreme Court (Practice and Procedure) Act, 2023.
The SC had appointed amicus curies with expertise on the criminal and constitutional sides, seeking their assistance, particularly on the matter of maintainability of the instant reference, pending with the court for 11 years.
Apart from CJP, the other members of the bench include Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi and Justice Musarat Hillai.
The bench had reserved its opinion earlier this week after hearing all sides.
The order
At the outset of the hearing, CJP Isa shared that the bench had come to a unanimous decision.
Reading the short order, the chief justice said that the judges are bound to “do right to all manner of people according to law without fear of favour, affection or ill will”.
“We must, therefore, be willing to confront our past missteps and inffalibities with humility in the spirit of self-accountability and as a testament to our commitment to ensure that justice shall be serving with unwavering, integrity and fidelity to the law,” said the CJP.
The CJP said that the “reference files that the president of Pakistan has provided us an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of Bhutto under the regime of military dictator Gen Zia ul Haq.”
He also read the five questions raised in the reference.
The CJP read the first question i.e. “Whether the decision of the Lahore High Court (LHC) as well the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of the fundamental rights as guaranteed in Article 4, sub-articles 1 and 2(a), Articles 8, 9, 10-A due process and Article 14 and 25 of the Constitution.”
CJP Isa then read the court’s opinion, saying “The proceedings of the trial by the LHC and of the appeal by the SC do not meet the requirements of the fundamental rights to a fair trial in due process enshrined in Articles 4 and 9 of the Constitution and later guaranteed as the separate and independent fundamental right under Article 10-A of the Constitution.”
“At the time, the relevant Article 10-A wasn’t part of the Constitution but the principles enunciated therein have always been part of our jurisprudence.”
“The second part of the opinion of this question is that the question and the Constitution and the law does not provide a mechanism to set aside a judgment whereby Bhutto was convicted and sentenced. The said judgment attain finality after the dismissal of the review petition by this court,” remarked the chief justice.
He then read the second question i.e. “Will the conviction leading to the execution of Bhutto could be termed as the decision of the SC binding on all courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution?”
Reading out the court’s opinion, CJP Isa said: “Reference questions do not specify the questions of the principle of law enunciated by this court in the ZAB case regarding which our opinion is sought. Therefore it cannot be answered […].”
The CJP then read the third and fifth questions that are: “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 glaring bias against Bhutto?”
“The second question was whether on the basis of conclusions arrived at inferences drawn from the evidence material in the case and order of conviction and sentence against Bhutto could have been recorded?”
Reading the court’s opinion, CJP Isa said: “In its advisory jurisdiction and Article 186, this court cannot 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 regard to fair trial and due process. We did not find that the fair trial in due process requirements were met.”
“Question number four referred to Islamic injunctions and our opinion is [that] we were not rendered any assistance on this question. Therefore, it would be inappropriate to render an opinion on the Islamic aspect,” he said.
The CJP reiterated that the court has decided that Bhutto did not get a fair trial and it was not in accordance with the Constitutional requirement of due process.
