In Pakistan, general elections were held on 7th March 1977. Pakistan Peoples Party (PPP) emerged as the victorious Party. At the behest of Gen Ziaul Haq, the then Chief of Army Staff (COAS), all the opposition parties in coalition, named themselves as Pakistan National Alliance (PNA), accused government of so-called rigging in the elections. Negotiations with PNA resumed. An Agreement was reached on 8th June, 1977 for holding Fresh Elections on 8th October, 1977.

On 5th July 1977, the COAS Gen Ziaul Haq imposed Martial Law unilaterally. The National Assembly, the Senate and the Provincial Assemblies were dissolved and Constitution was held in abeyance. After declaring Martial Law in the country, Gen Ziaul-Haq addressed a press conference on 14th July and claimed:

“We have no intentions of any witch-hunting. … The courts are still functioning and we have not stopped anyone going to the courts to take the politicians to task. Then why do they want me or the Military or the armed forces to hang a few politicians? Why should I? Isn’t it as much of a concern of the public as it is mine? It should be done by them, if it is to be done.”

Living Bhutto, it is said, was more dangerous for Gen Zia’s military rule. The fear of Zulfikar Ali Bhutto’s return to power had forced Gen Ziaul-Haq to take an extreme action of execution of Bhutto through judiciary though there are other explanations too.

As a writer Fauzia Wahab opined that:

“Allegedly his strong roots in the people of Pakistan, ‘his ability to turn foes into friends, his commanding stature in international politics made him a formidable figure in the complex polity of Pakistan. He was too strong to be tackled politically. His presence would be of constant threat for them…….. (and)……the General knew that the support of the judiciary was crucial…… Therefore, on the assumption of power, he cleverly inducted the chief justices of all
provincial High Courts as Acting Governors of their provinces.”

Gen Zia’s Military Junta established a dummy government of PNA with CMLA as President. Zulfikar Ali Bhutto, the sitting Prime Minister and the Chairman of PPP was arrested on the same day and then released on 28th July 1977.

Mr Bhutto was re-arrested on 3rd September 1977 from his residence named Clifton in Karachi, on the charges of a fabricated murder case; then released on 13th September 1977 against a bail order issued by the Lahore High Court.

Referring to the pages of ‘Pakistan— A Modern History’ by Ian Talbot:

‘Ahmed Raza Qasuri came forward for Gen Zia although a High Court Inquiry under Justice Shafi-ur-Rahman had exonerated the former Prime Minister in this case. But the Army was bent upon to go ahead.’

After registration of the FIR on 11th November 1974, the federal government had appointed Justice Shafiur Rehman to hold a judicial inquiry into the matter. Referring to Mr A Sattar Najam Advocate, the ‘Dawn’ of 8th April 2011 narrated that ‘though Justice Rehman had ideological differences with Z.A. Bhutto and his party but even then he conducted a fair inquiry and declared him innocent. Justice Rehman, who was later elevated to Supreme Court, was known for his
impartiality. Then Mr Ahmad Raza Kasuri, the complainant, had also expressed his satisfaction over the judicial inquiry and the matter was settled down. All witnesses and evidences were recorded during the probe and its findings were never challenged. When Gen Ziaul Haq ousted the elected government of Z.A Bhutto on 5th July 1977 the murder case was reopened and the trial was commenced on 24th September 1977.

Mr Sattar Najam was perhaps Assistant Advocate General at that time and later, during Gen Zia’s regime fake cases were registered against him allegedly for forging case documents before the judicial inquiry. He had to flee Pakistan due to constant raids on his house and threats to his family on the instance of the military ruler. He came back to
Pakistan in Benazir Bhutto’s first rule in 1986 and was made Deputy Attorney General then raised to Advocate General of Punjab.

Gen Ziaul Haq had managed to remove the record of the judicial inquiry from all concerned forums, including the High Court. The concerned record was also stolen from his house when he was out of the country during Gen Ziaul Haq’s rule. Mr Najam told that ‘due to this attitude of Justice Mushtaq, his fellow judge Justice Gulbaz Khan had refused to sit on the bench but later he had to withdraw the decision,’ may be due to immense pressure from the military rulers.

Z A Bhutto was charged with conspiracy to murder Nawab Mohammed Ahmed Qasuri (father of Ahmad Raza Qasuri), the alleged target in an assault on his car.

[The background of this murder case was that on 11th November 1974 shortly after midnight, Ahmed Raza Qasuri, member of the National assembly and a bitter critic of ZAB and the Peoples Party was on his way home, with his family after attending a marriage ceremony in Shadman colony Lahore. The stillness of the night was broken by the sound of gunfire; in a split second Nawab Mohammed Ahmed Khan (Ahmed Raza Qasuri’s father) sitting in the front seat received fatal injuries and was pronounced dead on arrival at the nearby United Christian Hospital. Shortly after Ahmed Raza Kasuri lodged a first information report (FIR) in concerned police station.

The assailants were unknown but Ahmed Raza managed to name Zulfuqar Ali Bhutto as the brain behind the murderous attack on his father. The logic behind the accusation was that Ahmed Raza had become a thorn for ZAB and his people’s party as he was a member of the opposition, information secretary of the Tehreek-i-Istiqlal and a renowned critic of Bhutto and his policies. He added that in June 1974 Bhutto had threatened him on the floor of the National Assembly, “You keep quiet! I have had enough of you! Absolute poison! I will not tolerate your nuisance any more.”]

Coming back to the history, 13th September’s bail to Z A Bhutto was granted by Justice K M.A.Samdani of the Lahore High Court declaring that the case did not hold any legal ground. Gen Zia had realized that odd situation but, as has been quoted in ‘Zulfi Bhutto of Pakistan’ by Stanley Wolpert:

‘…..from now on he (Gen Zia) would also have to take on the task of meeting out justice to his hated enemy by bringing him up for murder in his own reliable martial law court…….he (Zulfi) had been warned, upon his release from prison on 13th September that an order for his detention under some preventive law or martial law was being prepared. He (Zulfi) feared that Zia had now decided to perpetuate himself, and thought that if elections were postponed, there would be disastrous consequences for the country.’

So, as it could be expected from the courts in Pakistan that they always sided with the rulers, within three days Zulfikar Ali Bhutto’s bail was cancelled. In the mid-night of 16th September, as mentioned in Stanley Port’s book,

‘ ……. Army commandos climbed like black cats over the walls of Al-Murtaza, knocking out all the guards before they could raise a cry, hammering their rifle butts at the front door till almost flew off its heavy hinges.’

This time he was arrested, for never to be released again, on basis of the same murder charges and was taken to the Sukkur Jail about 500 km away from Karachi.

Justice Samdani, who had released Z A Bhutto on bail was transferred back to the Sindh High Court. Another development is also on record that a courageous Chief Justice of Pakistan Yaqub Ali Khan was forced to retire by the 22nd of the same month, because three day earlier, he had admitted Begum Nusrat Bhutto’s petition in the Supreme Court of Pakistan challenging the constitutionality of her husband’s detention. Justice Anwar-ul-Haq was announced as the new Chief Justice of Pakistan, who had no legal training and had entered the judicial service as an administrator but had the honour of being a personal friend of Gen Zia. Gen Zia had brought him there because he knew that any loophole in managing Z A Bhutto’s trial could have jeopardized his grand scheme. This time Z A Bhutto was arrested under some martial law order putting behind the High Court’s bail orders.

The trial of Zulfiqar Ali Bhutto and five other defendants commenced on 11th October 1977 in the Lahore High Court before a bench of following five judges (i) Maulvi Mushtaq Hussein as Chief Justice, (ii) Justice Zaki ud Din Pal (iii) Justice MSM Qureshi (iv) Justice Aftab Hussein and (v) Justice Gulbaz Khan. The public prosecutor was Ejaz Hussein Batalvi and ZA Bhutto was defended for part of the proceedings by D.M Awan, Ehsan Qadir Shah, and Enayatullah. By this time the military regime of Gen Zia ul Haq was in complete control of the country. All pillars of state including the judiciary and the executive had been made subservient to the whims and wishes of the military dictator.

Benazir Bhutto wrote in her auto biography titled as ‘The Daughter of the East’ that:

“…..The case against my father rested primarily on the confession of Masood Mahmood, the Director General of the Federal Security Force. Masood Mahmood was one of the public servants who was arrested soon after the coup and who we had been told was tortured to give false evidence against my father. After almost two months of detention by
the military, Masood Mahmood had decided to become an ‘approver’, a witness who claims to be an accomplice in a crime and is pardoned on the promise that he will tell the ‘truth’ about the other participants. Now Masood Mahmood was claiming that my father ordered him to murder the politician Kasuri… There were no eye-witnesses to the attack…….that the FSF guns, which the ‘confessing accused’ claimed to have used in the murder attempt did not match the empty cartridges found at the scene.”

How the judiciary were made to dance to the tune of the rulers …. See these paragraphs:

[The procedure adopted became a glittering piece of judicial history that Mr. Bhutto was denied trial at the sessions level which was (and still it is so) otherwise imperative to meet the ends of justice and was / is the established procedure in criminal jurisprudence. The main reason for holding a trial initially by a Sessions Judge is to provide the accused an opportunity to appeal before the High Court in the event of his conviction. Further, it enables two judges of the High
Court to assess the reasoning adopted by the lower court. All this was ignored and bypassed.

A Division Bench of the Lahore High Court was already inquiring into a private complaint of Ahmad Raza Kasuri about the incident of his father’s murder (which later on exonerated Mr Bhutto of the charge of murder). The bench was also seized of the bail matter. An incomplete challan (prosecution report with details of evidences) was meanwhile submitted in the court of a magistrate of Lahore which was immediately forwarded to the Session Court.

Maulvi Mushtaq Hussain had got transferred the incomplete challan from lower court to the High Court on the same day when Mr. Bhutto was released on bail by a division bench presided over by Justice Samadani. And on the same day, as Chief Justice he passed an order constituting a special bench of five judges, presided over by himself for the trial of the case. The withdrawal of the matter from the lower court to the High court was decided without hearing the accused or his counsel, and confirmed the suspicion of bias.

The CJ Maulvi Mushtaq afterwards told a German diplomat on question of transferring the case, that “Because no other judge would be able to control the accused”.
(Article ‘Tale of a vitiated murder by Fakhar Zaman is referred]

Professor F. C. Crone of Copenhagen, who had followed the proceedings of the case, had commented in Asia Week of 5th May 1978 that ‘the trial could not, by any standard, be characterized as fair. It appears that the coup generals see Bhutto’s death—his judicial murder—as a logical necessity of removing a dangerous political enemy’.

Referring to ‘Judicial Murder of a Prime Minister’ written by Tariq Ali, Gen Zia’s mind was already made up; he was determined to kill Bhutto. This is evident from the interview he gave to the media on 6th September 1977 in which he confirmed that he had personally ordered the arrest of Z A Bhutto and added:

“Mr. Bhutto was a Maccheiavelli of 1977. An evil genius running the country on more or less Gestapo lines, misusing funds, blackmailing people, detaining them and even perhaps ordering people to be killed.”

The Lahore High Court pronounced their judgment on 18th March 1978. Bhutto was found guilty and sentenced to death. This unanimous decision stated that the prosecution had proved their case and that Zulfikar Ali Bhutto was a “compulsive liar”. Gen Zia had earlier stated in an interview to monthly ‘Urdu Digest’ on 15th September 1977 that:

‘Bhutto is a cheat and a murderer and he would not be able to escape the severest punishment on the basis of the evidence already available’.

The prosecution’s star witness was Masood Mahmood, a shady character of dubious antecedents and a former Director General of Federal Security Force (FSF), on whose testimony the entire structure of case was built and finally proved to be the bedrock of the Government’s case. The judges of the Lahore High Court were totally unconcerned and oblivious to the fact that Masood Mehmood made a confessional statement in order to save his own neck and thus should be classified as:

· An unsatisfactory witness,

· An accomplice and a participant in the crime,

· He admitted his guilt three years after the crime was committed,

· He made his confessional statement a long time after he was arrested, detained and kept in solitary confinement,

· There were many other criminal charges against him, and

Allegedly the judicial process was blatantly transgressed and the principles of justice and impartiality were crushed. In the words of Stanley Port again:

“The Chief Justice Maulvi Mushtaq never so much as attempted to suppress or hide his personal animus. It never occurred to him that he should refuse himself from the trial.”

Benazir Bhutto had contended in his book that:

“. …….The witnesses were briefed on what they should say. …….At the end of the trial, not one of the objections raised or the contradictions in the evidence pointed out by the defense appeared in the record 706 pages of testimony.”

As expected, Justice Maulvi Mushtaq and his full bench found Zulfikar Ali Bhutto guilty of murder and sentenced him to death.

Maulvi Mushraq Hussein was a known Bhutto hater and made no secret of his dislike and enmity with the former Prime Minister. Just before the beginning of the trial, the constitution of the court was challenged by ZA Bhutto on the grounds of appointment of Maulvi Mushtaq Hussein as the Chief Election Commissioner by Gen Zia. ZA Bhutto’s appeal and
rejoinder to the press alleged partisanship against Maulvi Mushtaq Hussein and labeled it a mockery of justice in combining the office of the Chief Election Commissioner and Chief Justice of the High Court.

ZA Bhutto also pointed out the visible bias and vindictive nature of Maulvi Mushtaq by bringing to light the fact that Maulvi Mushtaq on the retirement of Justice Iqbal, had been superseded during Bhutto’s rule although he was the senior most judge of the Lahore High Court and since that day he had nurtured a grudge against Z A Bhutto. All the allegations were repeated in the application for transfer of the case on behalf of Z A Bhutto before the High Court and the Supreme
Court of Pakistan. The High Court dismissed the appeal summarily on 9th October 1977.

Throughout the course of trial in the Lahore High Court, Maulvi Mushtaq Hussain failed to disguise his contempt for Z A Bhutto and continued to spit venom in the form of rude, insulting and uncalled for remarks against Z A Bhutto. While Z A Bhutto was placed behind the dock he was once given a chair with the cryptic remark by Maulvi Mushtaq Hussein that “We know you are used to a very comfortable life”.

On one occasion Maulvi Mushtaq even mentioned a ‘hypothetical’ case of judges being superseded for appointment of a Chief Justice. The jurists present there laughed because indeed the Chief Justice himself was the judge superseded during Bhutto’s term as Prime Minister.

Maulvi Mushtaq also gave an interview to the BBC correspondent Mark Tulley. He spoke about common law traditions and that he was disappointed that Amnesty International did not send observers. The Chief Justice stated that the Bhutto’s case was being heard by five judges although the law required only two. This was not only unusual but also against all judicial ethics for a judge to comment publicly on a case being tried in his own court. The Chief Justice completely forgot that the person most in need of an assurance that justice would be done was the accused himself.

On 25th March 1978, Z A Bhutto lodged an appeal to the Supreme Court of Pakistan against his death sentence announced by the Lahore High Court. Z A Bhutto appealed to the Chief Justice Anwarul Haq to withdraw from the case as he had publicly criticized Bhutto and his Government. The Supreme Court bench consisted of nine Judges at the
start.

This appeal was rejected by Chief Justice of the Supreme Court Anwar ul Haq as being “unfounded and based on misunderstanding.” Hearing of the appeal continued from 20th May 1978 to 23rd December 1978. Judgment was delivered on 6th February 1979. It was a split decision of 4:3. During the course of trial in the Supreme Court the number of Judges hearing the appeal was reduced to seven from nine. Justice Qaiser Khan retired on 30th July 1978 and Justice Wahid ud Din stepped down after suffering a stroke on 20th November 1978.

The three justices who voted for Z A Bhutto’s acquittal were Justice Dorab Patel of Balochistan, Justice Safder Shah of NWFP, and Justice Mohammed Halim of Sindh as they could not find any direct evidence for the conspiracy to murder. While Justice Anwar-ul-Haq in his eight-hundred pages decision dismissed all the errors and illegalities in the Lahore High Court’s trial as totally irrelevant to the verdict and confirmed the death sentence. He himself wrote the judgment,
dismissing the Bhutto’s appeal and upholding the conviction and death sentence awarded by the Lahore High Court. Justice Mohammad Akram, Justice Karam Elahi Chohan and Justice Nasim Hassan Shah agreed with decision of the Chief Justice. Ironically all the 4 judges who upheld the death sentence belonged to the Punjab province.

[Justice Ghulam Safdar Shah expressed his sorrow over the tragedy of Bhutto’s death and somewhere gave the impression that he would have accepted the argument of ZAB’s defence team. This caused panic and uneasiness for Gen Ziaulhaq’s team, therefore, he ordered the Federal Investigations Agency (FIA) to chase Justice Shah. He was dragged into explanations and, as per government version, was found indulged in ‘wrong’ practices by the FIA. With notable discrepancies the then government approached the chief justice for action against the judge. A case was referred to the Supreme Judicial Council (SJC) and Justice Safdar Shah was forced to resign. He left the country immediately after.]

Justice Naseem Hassan Shah later became the Chief Justice of Pakistan. After his retirement as the Chief Justice of Pakistan, Dr. Nasim Hassan Shah had once conceded that ‘Bhutto could have escaped the gallows and his death sentence reduced easily’. The former Chief Justice volunteered these contentions in a startling press interview to the daily Jang dated 23rd August 1996. He also dared to comment on the constitution of trial bench of the Lahore High Court, and said 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. The grudge being that he (Z A Bhutto) as Prime Minister had superseded him (the judge) by a junior one while appointing Chief Justice of the Lahore High court’.

The former Chief Justice had no hesitation in averring that ‘…….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 Gen 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 a participating judge who perhaps suffers pricks afterwards. Emphasis by the judge on “had to be done” speaks for itself. It was an open admission that there was immense pressure on the judges from military dictator to uphold the LHC verdict in the case.

The ‘Dawn’ of 4th September 2009 had opined that if any further proof was needed that Bhutto’s trial was nothing but a sham to physically eliminate him, this book of Dr Nasim Hasan Shah is it. Admitting in his book that ‘he met a fellow judge, Dorab Patel, to have the three acquittals changed to guilty as a quid pro quo, is a clear indictment Nasim Hasan Shah has written against himself with his own guilty hands dripping with Bhutto’s blood.’ That was why the world jurists from former US attorney-general Ramsay Clark to a former Sri Lankan Chief Justice had declared it as ‘the Murder of the Trial’.

Bhutto’s judicial murder, unless honourably revoked, will forever remain the greatest slur on the face of the Supreme Court and in the annals of PLD. As popularly demanded by certain politicians Gen Ziaulhaq’s symbol be hanged and Justice Nasim Hasan Shah should be called in the dock being the only surviving judge of Bhutto`s judicial murder and one who has provided new evidence not known or admitted at the time of the trial.

Mercilessly and despicably, he was hanged to death on 4th April 1979. The jurists and opinion makers all over the world termed it a ‘Judicial Murder’. That is the reason that this case has never been quoted as a reference in any court since it published.

In nut shell, it was a pity that the superior trial and appellate courts, which should have been above mistrust and suspicion, had to earn this accusation from neutral observers and jurists of world repute because the judges succumbed to unseemly pressure from the military dictator, Gen Ziaul Haq. In ordinary circumstances, such a trial would have been vitiated and could have caused disqualification of the judges who were there on the two benches.

It was indecent haste (the statutory period of 30 days for filing an appeal was reduced to seven days) which caused circumvention of judicial norms, and the entire proceedings, both at the trial and appellate stages, left serious doubts lurking in dispassionate minds and thus its retrial by the Supreme Court under Presidential Reference no: 1/2011 contain merits because after the confessional statement of Justice Nasim Hasan Shah (retired), the order of the LHC and SC lost
their effect.

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