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Historical Trials  

The Trial of Zulfikar Ali Bhutto

Zulfikar Ali Bhutto the founder of the Pakistan Peoples Party (PPP), the largest and the most influential political party in Pakistan had also served as the President of Pakistan from 1971 to 1973 and as Prime Minister from 1973 to 1977. Educated at the University of California at Berkeley in the United States and University of Oxford in the United Kingdom, he was executed in 1979 by the Supreme Court of Pakistan for authorizing the murder of a political opponent Nawab Mohammed Ahmed Qasuri, a move that was taken under the directives of General Muhammad Zia-ul-Haq.

After General Zia declared Martial Law in the country on the 5th July 1977, Bhutto and members of his cabinet were arrested by troops of General Zia. Under martial law Pakistan was under the temporary rule of military authorities. The constitution was suspended all assemblies were dissolved civil rights also stood suspended the normal activities of civil court were restricted. In a way there was no Rule of Law in Pakistan. But Zia promised that elections would take place in October. The validity of martial law was challenged in Zulfiqar Ali Bhutto v. State1 , the Court on 10th November 1977 unanimously validated imposition of martial law over the country under the “doctrine of necessity”.

The court held “The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation.

In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity2.”
Thus the imposition of Martial Law, therefore, stands validated on the doctrine of necessity. Bhutto was later released on July 29.

Bhutto was arrested again on 3rd September 1977 on charges of “conspiracy to murder” under Chapter XVI of Pakistan Penal Code 1860, for authorizing the murder of a political opponent who was a 35-year-old politician by the name of Nawab Mohammed Ahmed Qasuri, in March 1974. It was alleged that Bhuto had targeted an assault on Nawab Mohammed’s car on 11th November 1974. Bhutto was released within 10 days after his arrest on 13th September 1977 after, Justice K.M.A. Samdani of the Lahore High Court, found the evidence “contradictory and incomplete”. Justice Samdani had to pay for this; he was immediately removed from the court and placed at the disposal of the law ministry. Fearing another arrest, Bhutto named his wife, Nusrat, the president of the Pakistan People's Party.

Three days later on 17th September 1977 General Zia arrested Bhutto again with other number and leaders of PPP on the same charges, this time under “martial law”, and moreover Bhutto was disqualified them from contesting in elections. Bhutto’s trial began on October 24th October 1977. Bhutto was held in detention for a month. Zia pledged that new elections would be held within 90 days but he kept postponing the elections time again.

Bhutto was tried for Qatl-e-Amd (murder) under Section 300 of The Pakistan Penal Code which reads as “Qatl-e-Amd: Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd.”, for which the punishment mentioned under Section 302 are

302 (a) punished with death as qisas

302 (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available

302 (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable.

Bhutto was also tried under Section 109 of the Pakistan Penal Code which reads as “Punishment of abetment if the Act abetted committed In consequence and where no express provision is made for its punishment: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code, for the punishment of such abetment, be punished with the punishment provided for the offence”.

Masood Mahmood, the Director General of the Federal Investigation Agency, testified against Bhutto. In his testimony, he claimed Bhutto had ordered Kasuri’s assassination and that four members of the Federal Investigation Agency had organized the ambush on Bhutto's orders. The four alleged assassins were arrested and later confessed. They were brought into court as “co-accused”. Bhutto’s defense challenged the prosecution. During the defense's cross-examination of witnesses, the bench often interrupted questioning.

When Bhutto began his testimony on 25th January 1978, Chief Justice Maulvi Mustaq closed the courtroom to all observers. Bhutto demanded a retrial, accusing the Chief Justice of biasness. The court refused his demand. Bhutto was sentenced under Section 302 (a), when the Court found that the former President and Prime Minister was guilty under Section 300. The reason given by the Hon’ble Court was that, from the evidence produced before the Court it was beyond all reasonable doubt that Bhutto was the mastermind behind the murder of his political rival. The Court also pointed out that the murder was not a normal murder, the sole purpose of the murder was to remove his political rival, and moreover the murder was a pre planned murder. The Court also added that such a murder not only defeated political ethics but also the defeated constitutionalism.

On 18th March 1978, Bhutto was declared guilty of murder and sentenced to death. Bhutto was transferred to a cell in Rawalpindi central jail and his family appealed on his behalf, the hearing commenced in May before the Supreme Court. The matter was placed before a bench comprising of nine Judges, consisting of Chief Justice Anwar ul Haq, Justice Muhammad Akram, Justice Dorab Patel, Justice Abdul Haleem, Justice Nasim Hasan Shah, Justice Ghulam Safdar Shah, Justice Karam Elahi Chauhan, Justice Waheedudin Ahmad and Justice Qaisar Khan. Chief Justice S. Anwarul Haq who was close to Zia, and had also served as Acting President when Zia was out, adjourned the court until the end of July 1978 because five of the nine judges were willing to overrule the Lahore verdict. The reason behind adjourning the matter was Justice Qaisar Khan among the five judges who were willing to overrule the Lahore verdict would retire very soon and thereafter General Zia would appoint some of his own men as the Judge.

During the hearing, Justice Qaisar Khan got retired and Justice Waheedudin Ahmad who was also against the Lahore verdict fell ill. Still today there is a lot of controversy whether Justice Waheedudin was genuinely ill or whether he was asked by General Zia not to preside over the matter, as he was against the Lahore verdict. The remaining seven judges heard the case. The expected majority was reduced to minority and the decision taken by the Lahore High Court was upheld. Had the original Bench of nine judges been maintained, the verdict could well have been 5-4 in Bhutto's favour.

The appeal was completed on 23rd December 1978. On February 6, 1979, the Supreme Court issued a guilty verdict; a decision reached by a 4: 3. Chief Justice Anwar-ul-Haq in his eight-hundred pages judgment dismissed all allegations of errors and illegalities of the Lahore High Court’s trial as totally irrelevant to the verdict and confirmed the death sentence. The Bhutto family had seven days in which to file a review petition. The Supreme Court granted a stay of execution while studying the petition.

On 24th March 1979 the Supreme Court dismissed the appeal. Zia-ul-Haq who was already calling the former President-Prime Minister a murderer while the case was still under trial, dismissed hundreds of clemency appeals from all the heads of the country and ordered for Bhutto’s execution. Zia-ul-Haq's decision was motivated by political considerations and was not the action of an impartial head of state. Bhutto was hanged at Central jail, Rawalpindi, on 4th April, 1979, and was buried in the village cemetery at Garhi Khuda Baksh.

For the millions of Pakistani’s the trial of Bhutto and his execution stands as a judicial murder committed by the Supreme Court of Pakistan.

SURAJIT BHADURI is a 4th year student pursuing B.A. LLB (Hons) from Gujarat National Law Universiy, Gandhinagar (Ahmedabad) who has written this trial for India Law Journal. He can be reached at mailsurajitbhaduri@gmail.com.
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