Was Bhutto given a fair trial?

Since the execution of Zulfikar Ali Bhutto in April 1979 much has been written about the way his trial was conducted in the superior courts. At first there were muted voices (for obvious reasons) but with the passage of time this criticism grew and it was openly said that the ends of justice were not met and there were many lacunae in the whole process. Even some foreign jurists raised their fingers.
During my stay in Canada I had a chance to hear to Justice Safdar Shah and Yahiya Bakhtiar in public meetings arranged by Pakistanis living over there and even met both of them privately many a time and discussed the manner of the trial. This article also carries their views which have not been published before.
The first duly elected government of Prime Minister Zulfikar Ali Bhutto was overthrown in a military coup by the then Chief of Army Staff (COAS), General Zia-ul-Haq, in the early hours of July 5, 1977. After the "takeover", addressing the nation General Zia claimed that the law and order situation in the country had deteriorated, and it had become inevitable to impose martial law. He, however, committed that as soon as the law and order situation improved elections would be held within 90 days and that the army would return to barracks after handing over government to the elected representatives. Ironically, this was the same old claim that General Ayub Khan had made after imposing martial law in the country on October 8, 1958, and then continued to remain in absolute power for more than ten years.
One of the Pakistan National Alliance (PNA) leaders Nawabzada Nasrullah Khan who led the agitation against Bhutto for four months, was so much overwhelmed and jubilant on Bhutto's removal that in a statement he had said "ub yehan koi nahee koi nahee aeyga", perhaps meaning that no one else like Bhutto would ever dare to come to power. Needless to say that General Zia very conveniently diverted the whole situation on the promise of conducting accountability first and then introduce Islamic laws. Under this subterfuge he continued to rule unchallenged for 11 years. Almost all of Bhutto's close comrades and colleagues were arrested and put in jail under Martial Law Regulation No 12 under which the punishment was death sentence.
A few days after taking over, in an interview published in US magazine "Newsweek" captioned "Bhutto Bounced", General Zia had reiterated his commitment to holding elections within 90 days. He even went further to say that if Bhutto was elected again, he would "salute him more smartly". A month later, in an interview to "Keyhan International" of Iran, he apparently changed his mind and said Bhutto's hands were blood-stained and he was wearing wolf's skin gloves (Bhutto nay Bhariye ki khal kay dastaney pehney hooway hain) and that he was to be tried in a court of law on a murder charge.
Ahmed Reza Qasuri, an ex-member of Pakistan People's Party (PPP) and a member of the National Assembly whose father was killed in an incident about three years prior to General Zia's takeover had then tried to get an "FIR" registered against Bhutto but could not succeed.
When it came to Bhutto's knowledge, he ordered its registration and also appointed Justice Shafi-ur-Rehman of Lahore High Court (LHC) to head a judicial tribunal to investigate the matter. Justice Shafi-ur-Rehamn's tribunal's findings later on exonerated Bhutto's name from the alleged crime. Qasuri, who had left PPP before the incident, once again joined the party in August 1976.
In reply to a question as to why he had decided to rejoin the party, he had said that he considered Begum Nusrat Bhutto his sister. She had come to his house with the request that he should rejoin the party and it was a custom in Punjab that "if a sister comes to the house of a brother with a request, the brother has no choice but to accept it". Subsequently, he applied for a PPP ticket to contest March 1977 general elections but it was not granted to him. Incidentally, Qasuri who got elected in November 1970 general elections on PPP's ticket to the Constituent Assembly of Pakistan never got elected again since then in eight subsequent general elections held in Pakistan.
General Zia's government took over the case of the murder of Qasuri's father on the basis of the "FIR" filed by him and one of the political opponents of Bhutto and a member of Air Marshal Asghar Khan's (R) Tehrik-e-Istaqlal party, Barrister M. Anwar was appointed to lead the case. Barrister Anwar on taking over the case had said that there were another 32 files against Bhutto that would be brought in after this case.
The Chief Justices of all the four provincial high courts were appointed "acting" governors of their respective provinces but the acting governor of Punjab Justice Aslam Riaz was soon after made the permanent governor and Justice Maulvi Mushtaq Hussein, the Acting Chief Justice of the LHC, as permanent chief justice.
On September 6, 1977 Bhutto was arrested on a murder charge on the basis of the "FIR" that was filed about three years ago during the tenure of his government. "The Times" of London, in a leading editorial captioned "By No Means A Simple Soldier", published on September 9, 1977 referring to Bhutto's arrest had expressed the view that General Zia wanted to become president of Pakistan, which a year later proved true.
The trial commenced right away in the LHC, ignoring sessions court and thus eliminated the defendant's first right of appeal. During the trial in the LHC, Bhutto many a time appealed to the Chief Justice of the Supreme Court about the unfair and unjust treatment that he had been receiving from the LHC Chief Justice but the Chief Justice of the Supreme Court (SC) took no action and every time the application filed with the Supreme Court was returned with the advice that the matter should be referred to the "LHC" Chief Justice.
On Thursday, December 17, 1977 an incident took place at the Qadhafi Stadium, Lahore, where a cricket Test match was going on. Begum Nusrat Bhutto and Benazir Bhutto were also present there. After a scuffle with police, they received serious injuries.
Bhutto learnt of it from newspapers the following day in the court before proceedings were to commence. He wanted to speak to his attorney, Yahiya Bakhtiar, regarding the incident during the coffee break as he was not in the court. But the Chief Justice that day announced the coffee break half an hour earlier than the usual time.
Bhutto through his junior attorney, Miss Talat Yaqoob, requested the court that the coffee break be changed to its usual time as he wanted to speak to his legal attorney Yahiya Bakhtiar but the Chief Justice refused to listen to him and after an exchange of a few words with Bhutto he ordered him out of the court saying that the "accused" was not in his senses to attend the court proceedings and would now only return when the court finds him fit enough to attend the proceedings.
This treatment of the court in addition to what he had already been tolerating from the beginning of the case was too much for Bhutto to swallow, especially after he had seen the blood-stained pictures of his wife and daughter in the newspaper and was anxious to find out their well being.
That very day ie December 18, 1977, through his attorney he submitted an application to the court alleging that he was being treated very unfairly and badly by the court and that it had become impossible for him to continue further in the court proceedings. Instances of unfair and unjust treatment were mentioned in the application. Some of these were as follows:
1. The Chief Justice had installed a microphone on his (CJ) table and had been switching it off to not record any evidence that was of his disliking. 2. During cross-examination of Masood Mahmood, the chief approver in the case, a photograph of a person was shown to him for identification but he had pretended not to recognise the person. Upon this he was reminded that the person had been his class fellow in the Government College, Lahore, and that after an affair with his wife he had subsequently married her.
The Chief Justice had immediately intervened to ensure that this valuable peace of evidence is not considered part of record by forming it "irrelevant". A very important point to prove that Masood Mahmood was a liar and an untrustworthy witness was stopped to become a part of the court proceedings.
3. There had been many instances where the Chief Judge had directed the witness to answer a question the way it suited the Chief Justice and in certain cases even he wrote down the answer on a piece of paper for the convenience of the witness, saying "Kia yehi kehna chahtey thay" (is that what you wanted to say).
4. The day's actual proceedings were corrected, amended and deleted at the Chief Justice's behest and a typewritten and not the original copy of it was given to the defence counsel on the following day.
No action was taken on this application and it was filed but a copy of it was put on notice board of the High Court on December 22, 1977. The rest of the proceedings of the LHC were boycotted by Bhutto in disgust and frustration.
A few days before the unanimous verdict of the LHC that found Bhutto guilty of the alleged murder was to be announced, all close colleagues and comrades of Bhutto who were arrested under Martial Law Regulation No 12, were released without trial but all of them were arrested once again under the same Martial Law Regulation after the announcement of the verdict on the charge that they had planned to blast the LHC, Lahore railway station and airport with bombs. The purpose of this exercise perhaps was to arouse the feelings of media and people against Bhutto and his party.
On March 22, 1978, four days after the verdict was announced, three condemned accused were hanged publicly in Lahore outside the Borstal jail apparently just to frighten and scare off the public at large. A similar attempt to hang condemned accused publicly in Karachi could not take place due to the plaintiff's refusal to confirm identification of the accused. Bhutto appealed against the LHC verdict in the Supreme Court where the proceedings commenced on May 19, 1978. Qasuri was sent on Europe and North America's tour at government's expense to "explain" and talk to media and Pakistanis living abroad about the case. A white paper on Bhutto government's performance, translated in languages other than English too was published by the government at a huge expense, which was distributed to various foreign embassies.
In August 1978, Chaudhry Fazal Ellahi, the President of Pakistan, resigned and General Zia-ul-Haq in addition to being Chief Martial Administrator also assumed the powers of President. In a leading article published in Newsweek on September 12, 1978, it was reported that the Generals of Pakistan Army had decided to hang Bhutto as soon as the verdict of the Supreme Court was to be announced and were confident to control the situation in the country in reaction to this hanging.
During the hearing of his appeal, Bhutto had brought it to the notice of the court that although he was tried by the LHC on a murder charge, out of 626 paragraph judgement, 18 paragraphs were devoted to suggest that Bhutto was not a good Muslim, which had nothing to do with the case. The Supreme Court ordered to expunge these paragraphs but turned down Bhutto's appeal with a 4-3 majority decision, thus upholding earlier decision of the LHC. Bhutto's review petition to the Supreme Court too was rejected.
Soon after Bhutto's conviction, Masood Mahmood, the chief approver in the case, was allowed to leave the country and settle down in the US where he subsequently lived and died.
Most of the world leaders except the US made appeals to the Pakistan government for Bhutto. The Roman Catholic Church leader Pope of Rome appealed for clemency. The Archbishop of Canterbury of England also appealed to General Zia "in the name of God in whom he and General Zia believed" to spare Bhutto's life. The Canadian Parliament under the speakership of the ex-Prime Minister of Canada, Sir John Diefenbaker, passed a unanimous resolution requesting the Pakistan Government that Bhutto's life be spared. Rumsey Clark, ex-Attorney General of the US, who had attended the court hearings in Pakistan, called it a "biased" and "unfair" trial where justice had not been done and condemned the conviction. The Guardian in an editorial warned that the conviction of Bhutto would be like "poisoning the whole well".
Disregarding the public opinion in an outside the country, Bhutto was hanged at 2.04 am on April 4, 1979, contrary to the Jail regulations where all hangings traditionally take place at about 5.00 am, just before the sunrise.
Earlier just before turning down Bhutto's appeal by the SC, all his colleagues and comrades who had been rearrested under Martial Law Regulation No 12 before announcement of the verdict were released once again without any trial or charge being brought against them.
Air Marshal Asghar Khan (R), one of the prominent leaders of the Pakistan National Alliance (PNA), who had earlier written a letter to COAS General Zia requesting him to remove Bhutto and take over power, played a rather dubious role during March 1977 election campaign and in post-election agitation against Bhutto.
He had been threatening in his public speeches of general elections campaign to hang Bhutto over Kohala Bridge after winning the elections. Through in statements, he had made some other vitriolic attacks on Bhutto. In an interview to "Far Eastern Economic Review", Bhutto replied to him in his own usual witty and sarcastic way.
After the overthrow of Bhutto's government by General Zia, he stopped attending PNA meetings on the pretext that he avoided late hours meetings so much so that he had never watched "Six Million Dollar Man" serial (a US made TV serial usually meant for children) shown on TV late in the evening.
He became very active and anxious once again clinch power and started participating in the election campaign that General Zia had announced to be held on October 18, 1977. When he was asked as to how elections could be held while Bhutto's case was still pending before the LHC he had replied that "if the high court sits day and night, the case could be decided before holding of the elections". The proposed elections later on were deferred by General Zia indefinitely and on the same day Air Marshal Asghar Khan (R) called off his election campaign.
Colonel Rafiuddin (R) ex-Special Security Superintendent of Rawalpindi Jail where Bhutto had been kept during the hearing of his appeal and who was one of the five officials, apart from some others witnessing the hanging of Bhutto personally, has stated in his book "Bhutto Kay Akhri 323 Din" (page 127) and thereafter in a private television interview too that after hanging of Bhutto, a photographer who was sent by an Intelligence Agency took some photographs of Bhutto to find out whether Bhutto was circumcised or not. It was found out that he was duly circumcised according to Islamic requirements.
The hanging of Bhutto was condemned throughout the world. Toronto Star in its editorial captioned "A Travesty of Justice", The Globe and Mail of Toronto, in its editorial captioned "Judicial Murder" and The Spectator of Hamilton, Ontario, condemned the hanging.
Mr Justice Ghulam Safdar Shah (R), one of the three judges of the Supreme Court who had acquitted Bhutto, during his "self-exile" visit to Toronto, in April 1981 in reply to questions asked at a public meeting by the Pakistani Canadians disclosed some of the facts of the case as follows.
1. Explaining the background of his appointment by General Zia from his retirement to the Supreme Court Bench hearing Bhutto's appeal, Justice Shah said he was Chief Justice of the Peshawar High Court during Bhutto's tenure when writ petitions were being filed against direct government appointments made by the then Governor of NWFP Hayat Sherpao.
These applications were being admitted on the ground that the appointments were not processed through the Public Service Commission. Sherpao complained about it to Bhutto who spoke to the Chief Justice to make him "understand and realise" that the government's functioning had to go on irrespective of what the regulations were and suggested to him that either he should accept his moving to the Supreme Court on the same salary or to resign voluntarily and to go into retirement.
Justice Shah preferred to take retirement. According to Justice Shah, General Zia perhaps had thought that like Justice Anwar-ul-Haq of the SC and Justice Maulvi Mushtaq Hussein of the LHC Justice Shah could also be used but it did not work out that way. Justice Shah's verdict went along with other two judges Justice Abdul Haleem and Justice Durab Patel, coming from Balochistan and Sindh respectively.
2. Masood Mahmood, ex-Chief of FSF and chief approver of the prosecution, had stated in his evidence that once in a meeting with Bhutto, he was asked by Bhutto to remind his Deputy Mian Abbas (one of the four accused along with Bhutto in the case), of an assignment that he (Bhutto) had earlier given to him.
According the Justice Shah, that was the only evidence given against Bhutto in the whole case and on the basis of such evidence, Bhutto could not have been proven guilty and was therefore acquitted by him. It was spread out during the trial by the government and was commonly known to people that Bhutto had signed a file to approve assassination of Qasuri but according to Justice Shah no such file was produced in the court.
3. At the very start of the appeal hearing that commenced on May 19, 1978, Justice Shah received a message from Chief Justice Anwar-ul-Haq through his newphew, Nasr Min Allah, then Chief Secretary of Balochistan provincial government saying "tell your maternal uncle to not ask technical questions during hearing of the case otherwise we too will become technical". He also disclosed that his nephew soon after got killed in a road accident.
4. It was pointed out to Chief Justice Anwar-ul-Haq that during appeal hearing by the Supreme Court a television serial titled Zulm ki Dastan" depicting Bhutto's character as a cruel ruler was being telecast by Pakistan television but the CJ took no notice of it.
5. In the Review petition, Bhutto's lawyers pointed out various weaknesses of the case including the one that the sketch of the sketch of the murder scene was prepared with an equation of one inch having 10 centimeters which was arithmetically wrong. Justice Shah said there were limitations to the extent with which the Supreme Court could review its judgement. So all the seven judges who were members of that bench that had given 4-3 verdict against Bhutto met in the chambers and decided that a joint mercy appeal be made to the President of Pakistan in order to provide whatever relief the Supreme Court could provide to Bhutto. At Justice Anwar-ul-Haque's instructions, Justice Shah drafted the mercy appeal that was signed by all the seven Judges.
6. The Military Secretary of the President in spite of receiving the joint mercy appeal by the President told Pakistani and foreign journalists that irrespective of the mercy appeal the President had decided to hang Bhutto. Journalists approached Justice Shah for an explanation as he had read out the mercy appeal in the court and had stated that it was customary for the President to accept recommendations of the Supreme Court and therefore Bhutto will not be hanged. Justice Shah reiterated what he had said to journalists earlier and assured them that as in the past the President would go along with the recommendations of the Supreme Court.
It was here when Justice Shah became an unlikable person and all Intelligence Services were put to bring something against him in order to harass and to bring a case to "shut" him up. Justice Shah stated that according to the Constitution of Pakistan anything against him could only had to be referred to the Supreme Judicial Council and not to the agencies but when he complained of it to the Chief Justice, he had simply told him that "May ki karan Martial Law lugga hoy aey" (what can I do since the country is under Martial Law). Justice Shah, therefore, in sheer disgust and on the advice of some of his close relatives who were in the federal government, decided to go into self-exile and left the country.
A few years later Justice Shah died in England while still in self-exile. After more than three decades of Bhutto's removal and hanging, his personal and political impact still persists in our national politics. Some of his political opponents have since then "amended" their views while there are quite a few who are still adamant and hold him responsible for various misdeeds.
However, in view of the dubious circumstances under which the trial took pace a great desire exists among the public at large that the whole case should be reviewed and hidden facts should be brought to light that pressurised the courts to give a verdict against Bhutto and that his name be cleared of the murder charge. This is all the more necessary as the only surviving judge out of the seven who had heard the appeal of Bhutto has openly admitted in the print and electronic media that his conviction was not the right decision made.
Professor Ghafoor Ahmed of Jamaat-i-Islami (JI) and the last surviving member of the Pakistan National Alliance team that negotiated with Bhutto's team for fresh elections has written in his book "Phir Martial Law Agya" that an accord had been reached late in the evening of July 4, 1977, between the PNA and government teams to hold elections but a few hours later and just before the official announcement of it, General Zia struck.
He has also mentioned in the book that the PNA had accepted martial law on the guarantee of one of its leaders, Air Marshal Asghar Khan (R) (R) that General Zia would hold elections within 90 days but has not explained at "whose" guarantee this guarantee was accepted. His party, JI had not only welcomed General Zia's martial law wholeheartedly but Professor Ghafoor had also along with others joined his cabinet very gladly.
Back in 1979 when Supreme Court had turned down Bhutt's review petition, an opinion poll was conducted in the country before his hanging to find out whether the people wanted him to be hanged or not. The reply of Maulana Mufti Mehmood, leader of PNA, was that "Bhutto Sahib key baad Bhutto Sahib ki rooh humain ziada pareshan karegi" (after Bhutto Sahib, it will be his spirit that will bother us more) and how truly it has proved to be.
The purpose of this write-up is only to bring it to the notice of those concerned that the architect of unanimously approved 1973 Constitution of Pakistan, restoring grace and honour of our armed forces after 1971 war debacle, chairman of Islamic Summit of 1974, pioneer of the national nuclear programme and giving self-respect and political awareness among even lower class of our population, Zulfikar Ali Bhutto was not given a fair trial of the charge for which he was hanged. His trial needs to be reviewed.