overview
Re-righting history
The real issues related to the case and the government’s plan to revive
the debate are of a political nature
By I. A. Rehman
The question whether the government was right in making a reference to the Supreme Court regarding the Bhutto trial (1977-79) will be debated for long. In any case, only a couple of points were raised in the reference, though they did touch on the justification for Bhutto’s conviction and execution. The real issues related to the case and the government’s plan to revive the debate are of a political nature.

His fears and hopes
An excerpt from If I Am
Assassinated…, Zulfikar Ali Bhutto’s personal memoirs he wrote while in his death cell. The title of the chapter is ‘The Death Cell and History’
…Let all the White Papers come. I do not have to defend myself at the bar of public opinion. My services to the cause of our people are a mirror in front of them. My name is synonymous with the return of Prisoners of War, with Kashmir, with the Islamic Summit, with the Security Council, with proletarian causes. Ordinarily I would not have bothered to reply to the tissue of lies contained in the disgusting document. But the circumstances are not ordinary. …

A request for retrial of Zulfikar Ali Bhutto’s case has been formally placed before the Supreme Court of Pakistan. The court has decided to constitute a larger bench to see if it’s a fit case for review. The requesting side believes the verdict in this case tantamounts to the "judicial murder" of its leader; it wants to clear his name of all criminal charges. Simply put, it wants to right a historical wrong. Or, in its own words, it wants to remove this blot from the judiciary’s face.

The requesting side, the Pakistan People’s Party, may be technically right. Its leader was hanged and no reviews of the case can bring him back. That the proceedings violated all norms of justice is acknowledged by saner legal voices across the world nor is the term "judicial murder" PPP’s own concoction, it says. There is some weight in its view that the people of this country, or least those voting for this party, did not accept the verdict and this was proved in the very first elections held after the dictator’s removal, as well as in all subsequent elections.

Some analysts argue that a presidential reference at this point is invalid because all review options have already been exhausted in Bhutto’s case. They do so even when they know that ZAB’s case has not been cited as a precedent in any murder trial held in the country ever since. Also, when they know that the review options were utilised under the same setup and with as much haste as the case itself. Besides, where else has a judge who was a part of a trial bench come out with an admission that the verdict was a mistake and was given under pressure from above.

This indeed is a unique case.

The detractors won’t listen, though. ZAB came down hard on his opponents and thus paid for his sins, they seem to suggest, ignoring the details of this particular case. Some point at the politics behind the decision to reopen the case at this time. Others suggest the government punish the dictator/s instead. Still others want ZAB and all common citizens to be treated alike and hence would not accept a special treatment for him. Together they blame it all on the United States and the CIA conspiracy so that the judiciary today should be left alone.

These are flawed arguments. There is strong enough reason to reopen ZAB’s case. If we accept judicial activism as a mode of seeking justice, even if it means stretching the rules, here is the most suitable case. The country, and not the party, needs this review. Looking backward is important in order to look ahead. That is the lesson of history. For once, we have a chance to learn it.

The question whether the government was right in making a reference to the Supreme Court regarding the Bhutto trial (1977-79) will be debated for long. In any case, only a couple of points were raised in the reference, though they did touch on the justification for Bhutto’s conviction and execution. The real issues related to the case and the government’s plan to revive the debate are of a political nature.

Even as the trial concluded a large number of observers had described Bhutto’s conviction as a political judgment. They included lawyers of repute such as Ramsay Clarke, a former US Attorney General. Mr T.W. Rajaratnam, a former judge of the Sri Lankan Supreme Appellate Court wrote a thought provoking book titled ‘A judiciary in crisis?’ Indeed it was nearly impossible to disagree with Victoria Schofield when she said:

"Those who were blinded by hope, optimism and trust in the judicial institutions of the country only saw at the end that from the beginning the minds of the military authorities were already made up. The judicial process merely prolonged the agony and uncertainly. No one could honestly say that Zulfikar Ali Bhutto was sent to death for his alleged part in a murder; he was sent to death because in the political climate of Pakistan at the time, the people who had the power wanted him out of the way."

Gen. Ziaul Haq carried out his putsch of July 1977 after making sure of dissensions within the PPP and the scale of support his allies in the opposition parties could offer him. Yet he did expect resistance. The feeling of relief at the success of the coup without any violent clash was evident in his victory broadcast. Thus, the detention of Bhutto and his colleagues was described as ‘protective’ and Ziaul Haq feigned to show Bhutto the customary deference when he called on the deposed Prime Minister in Murree.

However, soon afterwards Ziaul Haq, on his own or on goading by his rufaqa, started thinking of extending his reign beyond the 90 days he had promised at the outset. This meant staying in confrontation with PPP, with Bhutto in fact, for a long time. It was easy to conclude that PPP could not be suppressed so long as Bhutto was around. The junta found evidence to support this view when Bhutto received a rousing reception upon his arrival in Lahore in August 1977. Even ordinary villagers agreed with the remark going round across the country about a vacant grave and if it was not occupied by Bhutto the general could not escape falling into it.

Before Bhutto’s trial started in the Lahore High Court it was common knowledge that the Mohammad Ahmad case had been chosen by a prominent judicial personality as the most promising one for awarding Bhutto the death penalty, out of the many cases the junta and its civilian advisers had claimed to the worth pursuing. In this case too the prosecution was worried about reliance on the testimony of a co-accused, Masood Mahmud. General Arif has recorded the fact that it was Ziaul Haq himself who came to the prosecution’s help by granting the approver, Masood Mahmud, pardon. Similar promises were reported to have been made to the three PSF officials who were hanged.

The political nature of the trial was again under-scored after the dismissal of the review petition by the Supreme Court when a public campaign was run in the media to strengthen Zia’s hands and his resolve to liquidate Bhutto. Victoria Schopeld has quoted some of the newspaper headlines from those days: ‘SC verdict supported’; ‘Zia urged to implement S.C. order’; ‘No clemency for Bhutto’; ‘Court verdict must be implemented’; ‘Bhutto deserves no mercy’. And, Ahmed Raza Kasuri was not alone in declaring that ‘if Pakistan has to live, then Bhutto has to go’, as quite a few politicians of some stature said so and betrayed their lack of foresight by preferring partisan interest to the logic of justice and democracy.

That a large number of the Pakistanis did not accept the Bhutto verdict as just was proved by their consistent support to the Bhutto family during the movement against Ziaul Haq and in the elections held during 1988-2008.

Sadly enough, the political fallout of Bhutto’s execution has not been adequately discussed. In the first place Bhutto’s execution made it possible for Ziaul Haq to remain in power for a decade and push Pakistan firmly on the path towards its transformation into a theocracy. Secondly, it made this case the pivotal issue in politics, and that has impeded the evolution of a meaningful discourse on issues of concern to the people.

Now, it is obvious that the dividend accruing to PPP from the legend of an unjustly executed Bhutto is declining in value. That could have been the reason behind the move to bring the Bhutto trial back into the political discourse. However, any ordinary PPP loyalist could have told the party custodians that the so-called jiyalas have neither forgotten Bhutto nor have they lost the capacity to suffer for holding up his standard. If the PPP has slipped in the eyes of the people the reason is that Bhutto’s political heirs have given up most of the things that had made the PPP’s founder popular. A strong drive to revive the PPP, purge it of time-servers and greedy opportunists, revert to an egalitarian agenda, and protect the party from the fallout of the government’s blunders and shortcomings should be more rewarding than being as simple as Mir Taqi Mir who could not find a proper dispenser of a curative drug.

Early, during her first term as Prime Minister, Benazir Bhutto organised a colloquium on the Bhutto trial. It was attended by a good number of Pakistani and foreign scholars, including Mr Ramsay Clarke, Justice Rajaratnam and Sardar Swarn Singh. The government thought the findings of the experts were sufficient to vindicate their and Bhutto’s stand. It did not go in for another judicial opinion. That, perhaps, was an appropriate decision.

Besides, nobody can say that Pakistan has been freed of the social forces that helped the junta to get away with a judicial murder in 1979. Quite a few political parties are already showing anxiety, if not hostility, at the prospect of a revival of the Bhutto cult. For them their prospects in the next general election matter more than the element of justice, or the back of it, in the proceedings that provided a pretext to execute Bhutto. But then that is largely what Pakistan’s politics is about.

This does not mean that the PPP or its representatives in power do not have the right to profit from the legacy of Zulfikar Ali Bhutto, or Benazir Bhutto, for that matter. The only point one is trying to make is that successful use of a party’s political past or the memories of its great leaders requires a commitment to their ideals and a good record of adherence to them, without which such things become rituals devoid of spirit and any binding force.

That judiciary’s role was controversial in 1979 is beyond doubt. Nasim Hasan Shah, who was one of the judges in Zulfikar Ali Bhutto’s case, has gone on record to share his regret. Suhail Warraich, a senior journalist interviewed him in 1996 for Jang magazine where he expressed his regrets about the case for the first time. A portion of the interview, now part of Warraich’s book Adlia Key Arooj-o-zawal Ki Kihani, reads as follows:

"Bhutto’s death sentence was a judicial murder, what do you think about that?"

"I don’t think so. It is only a political statement."

"Do we have any other example in Pakistan of a person being hanged on the basis of advice?"

"No never…During the case, there was a view that Bhutto was not directly involved in the murder but FSF did it on his advice. During the hearing of the case, I asked Yayha 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 reply to another question, "Was there 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 more kind to Bhutto as he was ex-prime minister?"

"The sentiments at that time are different and one has to do what one has to do."

Justice Nasim Hasan Shah later made similar confessions on camera, on Geo’s show Jawab De, hosted by Iftikhar Ahmed. He said that military dictatorships remove judges; therefore, the judiciary is answerable to them, unlike civilian governments. "People think that judges should get into a sword fight and perish the military. However, the military can remove the judges, while people do nothing."

TNS discussed this episode with Iftikhar Ahmed. "I did not plan to extract this confession," he says. "We, however, knew that Nasim Hasan Shah lamented his decision in private gatherings and had said this on record too, but never on camera."

On being asked if this recording could serve as evidence when the Bhutto case is re-opened, he said it depended on the lawyers defending Bhutto.

The following is an excerpt from the televised interview:

Iftikhar Ahmed: Is there an example in Pakistani judicial history where someone was hanged because of a conspiring role?

Nasim Hasan Shah: I don’t think this was a conspiring role. He ordered his subordinates to kill Raza Kasuri…

IA: 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?

NHS: It depends on what reasoning you present…

IA: I am talking about Maulvi Mushtaq. This is what he was told by Zulfikar Ali Bhutto.

NHS: Yes. I think this was unfair of him [Maulvi Mushtaq]. He was an amazing person but an enemy of Bhutto and he should not have sat on the bench.

IA: You have stated your personal opinion that during the hearings of the Bhutto case, the punishment could have been reduced and that the case was very strong….?

NHS: Yes,

IA: You could’ve given a dissenting note?

NHS: 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 had stubbornness, which annoyed us.

…Let all the White Papers come. I do not have to defend myself at the bar of public opinion. My services to the cause of our people are a mirror in front of them. My name is synonymous with the return of Prisoners of War, with Kashmir, with the Islamic Summit, with the Security Council, with proletarian causes. Ordinarily I would not have bothered to reply to the tissue of lies contained in the disgusting document. But the circumstances are not ordinary. …

When I protested on the conversion of my trial for murder from open proceedings into an in camera trial for my defence, somehow I could not make clear to the Judges the difference between publicity and justice. I was demanding a public trial because the concept of justice is inextricably intertwined with an open trial. The political and legal struggle for an open trial, especially if it involves capital punishment, is writ large in golden letters. …

During the murder trial, one judge made the profound observation that "We are trying you and not the public." On this illuminating remark, the Chief Justice of Lahore High Court added "but he wants publicity." What an irony!...

I was informed in Kot Lakhpat Jail that my request to address the court after the Prosecution was rejected. I was not a practicing lawyer. From 9th January 1978, I was not being defended by lawyers. I had not heard the prosecution witnesses during my long illness and absence from the court. I had been insulted and humiliated by the court during the open trial for three months. The prosecution case had received the full blast of publicity. The trial had been converted into a secret conclave. The dice was completely loaded against me. But with all those harrowing handicaps, when I sought to address the closed court in defence of my life, I was not permitted because I wanted to hear the Prosecution before replying as a layman, without legal notes, without the aid of law books and legal rulings.

This pre-eminently reasonable request, this request for rough and ready justice was turned down. What is an ex parte judgement if the judgement of the trial court which awards the death sentence without hearing the defence of the illegally described "principal accused" is not an ex parte judgement?...

But the bench, in particular the Chief Justice, was always rude, abrasive and insulting to me. In striking contrast, the Chief Justice was kindness itself to the confessing co-accused. He smiled at them. He enjoyed their rustic sense of humour at my expense. He was patient with them in a fatherly fashion. He would translate the questions in Urdu and Punjabi for them whenever he thought that they were not able to follow the English. The taunts, the frowns and shouts were reserved only for me. I was favoured with the commands to "shut up," "get up" and "take this man away until he regains his senses."

The reasons why Bhutto’s case is never presented as a precedent in any court are legal, not political. Serious questions were raised, both at the trial and appeal stages, regarding the admissibility and quality of evidence presented in the trial and the reliance placed on such evidence to convict Bhutto and then sentence him to death. Even more serious are questions about the manner in which the proceedings were conducted.

But Bhutto’s trial was politically motivated. Questions raised by Bhutto’s lawyer were never addressed satisfactorily by the judges of the Lahore High Court (trial court) who unanimously held Bhutto guilty, for reasons of bias. Majority of judges of the Supreme Court, all four of whom happened to be from Punjab, also failed to appreciate credible doubts raised regarding witnesses’ statements and other evidence, relevant law and above all the conduct of judges, their apparent bias.

The judges who found him guilty, especially Chief Justice of Lahore High Court, Maulvi Mushtaq Hussain, were clearly motivated against Bhutto. The question of bias raised by Bhutto was the single most important aspect of the case which, if addressed honestly, could have changed the course of history.

Bhutto challenged his trial by the full bench presided over by Chief Justice Mushtaq Hussain. His plea was that the Chief Justice, who was also holding the charge of acting Chief Election Commissioner, was biased against him. Bhutto’s stance was supported by several facts. A division bench of the high court consisting of Justice K M A Samdani and Justice Mazharul Haq was already enquiring into a private complaint of Ahmed Raza Kasuri, whose father was killed in the incident allegedly engineered by Bhutto. And while the enquiry was going on, an incomplete challan was submitted in the court of magistrate which was immediately forwarded to the Sessions Judge. Later on, Chief Justice Mushtaq Hussain transferred the case from the Court of Sessions to the high court the same day when Bhutto was granted bail i.e. September 13, 1977. Again, on the same day, the Chief Justice constituted a special bench of five judges presided over by himself, though a complete challan had not been presented, and yet the case trial was fixed for September 24, 1977.

In an application filed by ZAB for the transfer of the case, it was alleged that the Chief Justice was constantly making disparaging remarks against him. A number of particular instances were mentioned, thus making it clear that he had no faith in the court proceedings. The application was rejected without convincing reasoning, something which Justice Dorab Patel addressed, though not in good detail, in his dissenting order in appeal. In the statement submitted before the Supreme Court during the hearing of his appeal, Bhutto stated:

"It is indeed a mockery for this regime to pontificate on the independent character of the Chief Election Commissioner when it has brazenly merged the office of the Chief Election Commissioner and the Chief Justice of the Lahore High Court, under the control of the man who is known to be after my blood."

Referring to his earlier experiences with Justice Mushtaq Hussain, Bhutto stated further: "Maulvi Mushtaq Hussain was pleased to hear my detention petition virtually "in camera" inside the prison walls of Lahore Camp Jail. This was in January 1969. However, it was not he who released me from detention, but the government, which withdrew the detention order."

Bhutto also narrated how, soon after he became President, Maulvi Mushtaq Hussain met him in the Punjab House in Rawalpindi.

"He gave blatant indications of his ambitions suggesting that, at this political juncture in the history of Pakistan, the new President would need a trustworthy man in the control of the judiciary. He was gravely dejected when his expectations were not met, when a few months later Sardar Muhammad Iqbal was appointed the Chief Justice of the Lahore High Court by my government.

He did not conceal his anger. He displayed his resentment in many ways. When following the Constitutional Amendment, Mr. Justice Aslam Riaz Hussain was appointed the Chief Justice of Lahore High Court, he interpreted this second supersession to be an intolerable insult."

The doubts raised by Bhutto as to the fairness of proceedings should have clearly given rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that no fair proceedings could take place with the kind of background narrated by Bhutto and the circumstances in which the trial was transferred from the sessions court to the high court. But lack of fairness was not restricted to the high court; it permeated the Supreme Court which found the objections raised by Bhutto not worthy of consideration as if there was a pact between the judges. Had due consideration been given to these grounds, the whole Bhutto trial would have played out differently.

The News on Sunday: What would you say about the reopening of the Bhutto case? Do you believe this was a historical wrong which ought to be righted?

Syed Afzal Haider: As a lawyer and, now, as a retired judge, I don’t think it is in the fitness of things that I should say anything about the reference. However, my research work and my own personal observations have brought me to the conclusion that the Bhutto trial was a complete sham.

TNS: You revisited the trial in your 1996 book. What were your findings?

SAH: Well, I wrote this book on the personal request of [late] Mohatarma Benazir Bhutto, in the year 1995. In fact, I had met her for the first time during the trial; she was a young girl then. The book is actually in two volumes. The thicker volume, which is over 1500 pages, is about the judgment of the trial court, the appellate court and the reviewing tribunal. The smaller book gives a historical overview of the situation. In fact, it’s a commentary on the 25 years of political history, from 1996 backwards. And, I have also recounted the day-to-day happenings at the end of the book and, finally, given my conclusions. Conclusions because I was nearest in time to the Bhutto trial and actually witnessed it. This is Chapter 16 of my book which says that the accused -- i.e. Zulfikar Ali Bhutto -- was discriminated against, both at the appellate stage and the trial stage. Secondly, that the judges were biased and Bhutto was denied certain basic rights of the accused.

TNS: What exactly do you mean when you say Bhutto was denied certain basic rights of the accused?

SAH: For instance, he was denied the right to be tried before a sessions court. Secondly, no judge of the lower court or the high court or even the chief justice of Pakistan makes comments on the faith of the accused, but here the court was told to "be careful of Zulfikar Ali Bhutto". So, this wasn’t an ordinary case.

In my book, I’ve given the dates when Justice Anwarul Haq spoke against Bhutto during the pendency of the case. He gave public speeches. I have also referred to a letter [in my book] in which Bhutto told Anwarul Haq not to sit on his bench. I’ve myself been a judge; the moment I felt somebody had no confidence in me, I would take my hands off his case.

The most significant part is the fact that in 1978 the Islamic provisions were ready and the law of Qisas and Diyat was in place. Having been a member of the Council of Islamic Ideology for five terms and having seen the records, I know that the law was not allowed to be implemented because, according to Section 9, life sentence was given to the person who was found to be a conspirator. Ziaul Haq withheld the law. Justice Afzal Cheema was also involved in this.

Mr Ehsan Qadir, a very competent trial lawyer, told me that one day when he was appearing on behalf of Bhutto he told the court, "My Lord! My cases are fixed tomorrow in such and such district. Could you please ask the registrar to get those cases adjourned?" He was told not to chase a wild goose and forget about the case.

Bhutto was simply denied the best lawyers. The lawyer from Sindh was sent back, the lawyer from Punjab was packed off. So, how can I say that the trial was fair? It was absolutely unfair. Period.

TNS: Tell us about Maulvi Mushtaq Hussain’s role in the trial?

SAH: Maulvi Mushtaq Hussain was a highly callous man. He behaved very badly in the [Lahore High] court. It was a full bench. He called Bhutto "a bad Muslim" and a "compulsive liar". At one point he even told Bhutto to "get out" and even "shut up". Once I walked out in protest, along with Amir Raza Khan, who wasn’t a member of the People’s Party or even a supporter of it, but both of us believed this was highly improper. Of course, then, God worked His justice and everybody saw how he [Maulvi Mushtaq] died.

TNS: What were your other observations?

SAH: Well, it was not an open trial. I mean, why build a special dock for the purpose? At best, Bhutto was charged for conspiracy.

TNS: What, in your view, prompted Justice (retd) Nasim Hasan Shah to come out with his glorious confession now?

SAH: Dorab Patel once told me that Dr Nasim Hasan Shah had agreed to sign the judgment for acquittal. This is his statement and I have no reason to doubt it, because he [Patel] was a very honourable man. But then Nasim Hasan Shah had to go out of Pakistan for a few days, and when he came back and they sent the judgment to him, all of a sudden he had changed his mind.

Aslam Rao Husain was also the sitting judge of the Supreme Court. He was a very dear friend of mine. I asked him why did he not participate and he replied that he had been offered by Justice Anwarul Haq to sit in this case but he told the latter that he would decide the case firstly on the question of bias, that Maulvi Mushtaq Husain was biased or not. Anwarul Haq said, "No, I am sorry, you can’t come." This decision was a foregone conclusion. What prompted Nasim Hasan Shah, God knows better.

TNS: Did you face any difficulties in your research work?

SAH: For one thing, I was not allowed to see the records in the high court. If this was "an ordinary case", as Justice Wajihuddin has remarked in a recent TV programme, then anybody should’ve been allowed access to its record. Under what authority was it sealed?

Earlier, when I was holding a seminar in Lahore, in which Rajaratnam, the chief justice of the criminal court, had also been invited from Sri Lanka, Muhammad Afzal Zullah, the then chief justice of Pakistan who had become CJP on my recommendation by Benazir Bhutto, arrested me and kept me in wrongful confinement in his chamber for seven hours because he did not want me to participate in the seminar on Bhutto trial. Such was Mr Zullah’s prejudice and animosity against Zulfikar Ali Bhutto. I am saying it on record. I was released only when the convention was over.

See, I am not a member of any political party, but by no stretch of imagination would I call it a fair trial. In fact, I have written this in my book that the Bhutto trial is still continuing. The judgment has been rejected by the bench, the bar, and the people of Pakistan.

Bhutto’s Murder Case Revisited

A. Basit

First published in Lahore, 1996

A Judiciary in Crisis? The Trial of Zulfikar Ali Bhutto

T W Rajaratnam

Madras, September 1988

Bhutto Trial

Syed Afzal Haider

National Commission on History & Culture, Islamabad, 1996

The Trial and Execution of Bhutto

J C Batra

Kunj Pub. Ho, India

Bhutto: Trial and Execution

Victoria Schofield

Cassell, 1979 & Classic, Lahore, 1990

Portrait of a Political Murder

H S Bhatia

Deep & Deep Publications, India 1979

If I’m Assassinated…

Zulfikar Ali Bhutto

Witness to Splendour

Zulfikar Ali Bhutto

My Execution

Zulfikar Ali Bhutto