A historic wrong

People present must atone for sins past

On the 33rd death anniversary of Zulfikar Ali Bhutto, the Central Executive Committee of the PPP, due to the unending pressure of its supporters and the general public, forced the president and co-chairman of the PPP to send a reference to the Supreme Court of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan asking the apex court to revisit Mr Bhutto’s case, who according to the public perception was eliminated through the judicial process by General Zia-ul-Haq and his coteries in collusive arrangement with Justice Maulvi Mushtaq.

Mr Bhutto was a highly controversial figure who was a hero for his followers but an opportunist and condemnable person for his opponents. Capitalists, industrialists and big landlords of this country were against him and wanted to get rid of him at all costs. He had nationalised all the key industries and had drastically reduced the land holdings through land reforms. Therefore, the industrialists and feudal landlords of this country became his enemy number one whereas on the other hand the labourers, teachers, farmers and people belonging to the poor strata of society considered him their saviour. He still continues to be a divisive figure as the reference sent by the president has come under lot of criticism from one segment of society while earning a lot of appreciation from other segments.

The people who criticise the reopening of the case maintain that the revisitation would not bring any fruitful result 30 years after his hanging; rather, it will open a Pandora’s box as a result of which our entire judicial system including the process of investigation, prosecution and the conduct of different judges (those who conducted his trial and those who heard his appeal) would come under sharp criticism which may bring our judiciary into disrepute.

Conversely, there is a very large segment of the society that argues precisely the opposite. They say that correcting a historic wrong will in actuality restore the pride of the judiciary and erase an ugly blot on its stature. Many people want to know the real conspiracy behind the killing of their most beloved political leader through the judiciary so as to forestall any such occurrence in the future and preventing the current political leadership from being subjected to a similar treatment.

It is commonly believed that death penalty to Z A Bhutto was set by the Zia-ul-Haq regime. That is why he specially constituted the full bench of the Lahore High Court headed by Justice Maulvi Mushtaq. In the entire history of this country, no murder trial has ever been directly conducted by the high court. The High Court, being an appellate court, does not have the jurisdiction to conduct a murder trial, the original jurisdiction of which lies with the court of sessions. Therefore, this will be the primary moot question before the Supreme Court while revisiting Mr Bhutto’s case.

The second question which may call for the attention of the court would be why was he deprived from at least one more forum of appeal? This is probably the main reason on account of which the public at large calls it a “judicial murder”. While revisiting Z A Bhutto’s case, the apex court may come across innumerable fatal legal lacunae like the abuse of the law in the form of admitting legally inadmissible evidence, rejecting admissible evidence, not giving the benefit of doubt to the accused etc. Numerous deviations from the principles of law and norms of justice can be pointed out which the apex court must make part of the record so as to stop their repetition in future trials as the same could cause a serious miscarriage of justice.

It is the irony of fate that, after the hanging of Z A Bhutto, no principle of law enunciated in his case is accepted as precedent by the superior courts of Pakistan (whereas, in the normal course of things, any principle of law laid down in a previous case is binding on all courts in Pakistan as per Article 189 of the constitution for any accused facing a similar situation). Since the legal fraternity has to face this embarrassment daily in the courts besides the judges conducting the murder trials, it would be prudent to get rid of it once and for ever. And it is not just a matter of practicality but a matter of principle. If some wrong stood committed from the judges of the superior courts in the past – particularly in those days when the entire judiciary was in the clutches of the military regime – then what is the harm in admitting some wrongs and setting them right.

Institutions that learn from their follies are institutions that grow and strengthen. Pakistan’s judiciary has come a long way and is ever assertive in the new socio-political landscape of Pakistan. It would do well to correct its historic wrong. Z A Bhutto’s case was a grievous miscarriage of justice at the behest of a military dictator. The judiciary must restore its honour by removing this heinous mistake from its record.