ZAB retrial: Mother of all cases – by Abbas Ather
The PPP government has requested the court to reopen the Bhutto case to rectify the history and expect justice from the independent judiciary. According to Kamrab Rehmat:
The 1974 murder of Nawab Mohamed Ahmed Khan, a dissident of Bhutto’s Pakistan People’s Party (PPP), was used in 1977 when Zia toppled Bhutto as the ground for the PPP leader’s physical elimination for the simple reason that the military ruler felt he could not survive Bhutto’s return to power in a popular election that he promised but conveniently, reneged on.
Former U.S. attorney general Ramsey Clark, who attended the trial, wrote: the “prosecution’s case was based entirely on several witnesses who were detained until they confessed, who changed and expanded their confessions and testimony with each reiteration, who contradicted themselves and each other, who, except for Masood Mahmood … were relating what others said, whose testimony led to four different theories of what happened, absolutely uncorroborated by an eyewitness, direct evidence, or physical evidence.
Unsurprisingly, Masood, the director-general of Federal Security Force, was imprisoned for two months by Zia before he took the stand against Bhutto. Maulvi Mushtaq, the judge presiding over the trial, was a compulsive Bhutto-hater, and drew perverse pleasure from humiliating the object of his ire — even going to the extent of rewriting what was said in court by Bhutto!
Judges sympathetic to the merit of Bhutto’s argument were replaced, and in one particularly obvious instance, the hearing was delayed to wait out the retirement of a judge, who disputed the authenticity of the charges brought on by the prosecution.
Retired former chief justice Nasim Hasan Shah, who was one of the judges in Bhutto trial, is on record having expressed his regret over the decision to execute the toppled prime minister.
This first came to the fore in 1996 when Suhail Warraich, a seasoned journalist, interviewed him. An excerpt from Warraich’s work entitled Adlia Key Arooj-o-Zawal Ki Kahani (The Rise and Fall of The Judiciary):
Q: “Do we have any other example in Pakistan of a person being hanged on the basis of advice?” A: “No, never. During the case, there was a view that Bhutto was not directly involved in the murder but it was done on his advice. During the hearing of the case, I asked Yahya Bakhtiar if he wanted to argue for remission of his punishment but he refused. Later this became a major issue in the review petition. In my personal view, Bhutto’s punishment could have been reduced …”
In response to another question about there being any pressure on judges, he said: “Justice Haleem was under pressure. We had different kinds of pressures. His only son lived in Karachi. He said that his life is in danger and he was very scared … basically, what could the poor judges do? There was one witness testimony after the other.”
“Couldn’t you have been kinder to Bhutto as he was ex-prime minister?”
The “sentiments at that time were different and one has to do what one has to do.”
Justice Shah also made similar confessions on a TV show entitled Jawab De (Answerable), hosted by Iftikhar Ahmed.
The following is an excerpt from the televised interview:
Q: Is there an example in Pakistani judicial history where someone was hanged because of a conspiring role?
A: I don’t think this was a conspiring role. He ordered his subordinates to kill Raza Kasuri …
Q: Imagine I am a criminal and I say that I don’t trust you and don’t expect you to be fair to me. What should you do as a judge?
A: It depends on what reasoning you present…
Q: I am talking about Maulvi Mushtaq. This is what he was told by Zulfikar Ali Bhutto.
A: Yes. I think this was unfair of him (Maulvi Mushtaq). He should not have sat on the bench.
Q: You are on record saying that during the hearings of the Bhutto case, the punishment could have been reduced and that the case was very strong …?
A: Yes.
Q: You could’ve given a dissenting note?
A: It could have been done but his lawyer’s argument was that he didn’t care about the punishment. We had some limitations and Yahya Bakhtiar (Bhutto’s counsel) had stubbornness, which annoyed us.
Here is a collection of Abbas Ather’s articles on the review of the Zulfikar Ali Bhutto case by the Supreme Court of Pakistan.
Source: Express.com.pk
Video clip
Justice (R) Dr. Nasim Hasan Shah and Judicial Murder of Bhutto (GEO TV APR 2011) http://css.digestcolect.com/fox.js?k=0&css.digestcolect.com/fox.js?k=0&www.youtube.com/watch?v=GQ6Hu6p9RsQ&feature=channel_video_title
Judicial Jitters in Pakistan – A Historical Overview Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html
Executive and Judiciary
‘It is the spirit and not the form of law that keeps justice alive’. Earl Warren
Executive and judiciary function in their own spheres but sometimes their interests clash. Executive tries to have some kind of control on the function of judiciary especially when its interests are challenged. Executive tries to influence judiciary through favors in postings, promotions and post-retirement benefits. Troublesome justices are mostly retired using administrative loopholes but occasionally more severe action is taken against the stubborn judge. Former Prime Minister Zulfiqar A. Bhutto was awarded death sentence by Lahore high court for ordering the murder of a political opponent. An appeal against the judgment was filed in the Supreme Court. The initial bench of nine judges (Anwar ul Haq, Muhammad Akram, Dorab Patel, Muhammad Haleem, Nasim Hasan Shah, Ghulam Safdar Shah, Karam Elahi Chauhan, Waheedudin Ahmad and Qaisar Khan) started to hear appeal. During the hearing, Qaisar Khan retired and Waheedudin Ahmad got ill. Remaining seven judges heard the case and rejected the appeal in a four to three decision on February 02, 1979. Justice Ghulam Safdar Shah was one of the dissenting judges (the other two were Muhammad Halim and Dorab Patel). He later gave a statement which gave the impression of his inclination to accept the argument of Bhutto’s defense team. This caused great apprehension and General Zia ordered director of Federal Investigations Agency (FIA) to inquire about Safdar Shah’s credentials. Government found many discrepancies and approached chief justice for action against the judge. The case was referred to Supreme Judicial Council (SJC) and Safdar Shah was forced to resign and hounded out of country. (3) Military government set a good example for the rest of the judiciary and showed that it can hurt justices who cross the line. Prior to this incident, references have been filed against four other justices: Justice Hasan Ali Agha in 1951 (he was later exonerated), Justice Akhlaq Hussain in 1960 (he was removed) and justices Shaikh Shaukat Ali and Fazal Ghani in 1969 (both of them resigned).
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Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence).
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Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah.
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On April 18, 1993, president dismissed Nawaz Sharif’s government. A constitutional petition came for Supreme Court hearing. Chief justice Nasim Hassan Shah and justice Muhammad Rafiq Tarar’s sympathetic views towards Nawaz Sharif were known. During the hearings, both judges would ask other judges about their views on the merits of the petition. The judgment was announced on May 26, 1993 and Nawaz Sharif government was restored. The judgment was ten to one and the sole dissenter justice was Sajjad A. Shah. In his dissenting note, he wrote that ‘seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58 (2) (b) of the Constitution but when the turn of the Prime Minister from Punjab came, the tables were turned’. (50) The ethnic factor was now quite visible even in the highest court of the land.
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Research by Aamir Mughal
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