It is a pity that the trial of former Prime Minister Zulfikar Ali Bhutto in the appellate courts, which should always be above mistrust and suspicion, had to earn the accusation of a biased and prejudicial trial from neutral observers because the courts had succumbed to unseemly pressure from the military dictator, General Ziaul 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 as the “principal accused”, was not directly charged with murder but was arraigned for conspiracy to kill a man who is still alive.
It is in this perspective that some persons, who have the good name of the country at heart, have been suggesting from time to time 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 Ziaul 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.
Article 212-A was made part of the Constitution through 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 CMLA that the trial and appellate courts presided over by Maulvi Mushtaq Hussain and Anwar-ul-Haq had secured the elimination of an elected prime minister whom the military junta considered its arch-foe.
A Division Bench of the Lahore High Court was already inquiring into a private complaint of Ahmed 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 Sessions 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 Samdani. 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 had 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, Asiaweek of May 5, 1978 that the trial could not, by any standard, be characterised as fair. It appears, he had written, 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, had also been highlighted and indicated by a number of writers.
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.
Defence counsel received rather rough treatment in open court, smacking of prejudice and one-sidedness. 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 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 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.
Significantly, former Chief Justice of Pakistan Dr Nasim Hassan Shah who was a member of the Supreme Court Bench which had finally confirmed death sentence had later on 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 argue it perhaps for the reason that he was seeking a clear acquittal. But the court could not act sou motu to save him from capital punishment. It could not be more loyal than the king, the judge had said.
Dr Nasim Hassan Shah had volunteered these contentions in a startling interview to daily Jang (August 23, 1996).
He had further hinted that both General Ziaul Haq and Maulvi Mushtaq Hussain had fears that Bhutto’s survival could be risky for them, so he should better be eliminated first and no chances taken.
“I am sorry it had to be done, had to be done.” A belated remorse by the judge. And, now what had to be done is to be undone.
The writer is a central leader of PPP
