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ISLAMABAD: The Supreme Court, on Monday, questioned how to approach in the Presidential Reference on the murder of Zulfikar Ali Bhutto as to say that judges were not independent is not enough and they need to see the material to establish bias.

Justice Mansoor Ali Shah said though the miscarriage of justice was carried out in the instant matter and judges were not independent but they needed material to establish as merely referring to the High Court and SC’s judgments is not sufficient. The Court needs to look at the process of the trial that the judges in the Lahore High Court (LHC) and the Supreme Court were not only biased but exceeded their jurisdiction.

He said the Court might give bad or wrong judgments, but there is the facility of review available to the defence party. “We are not looking at the merit of the case.” He asked the amici to show the independent factors to establish that the judgments were biased.

Khalid Jawed Khan proposed to the bench that in view of the jurisdiction conferred on the Supreme Court under Article 186, while the conviction and sentence passed against Zulfiqar Ali Bhutto may not be quashed, annulled or set aside.

However, the Supreme Court may address the question of law and give an opinion that in the light of the facts and prevailing circumstances and the personal enmity of the military dictator, the trial, conviction and sentence of Zulfiqar Ali Bhutto does not meet the constitutional requirements and due process of law.

A nine-member SC bench, headed by the Chief Justice, and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, and Justice Musarrat Hilali, heard the presidential reference.

Khalid argued that it is the constitutional duty of the State to provide for an appropriate legal forum or mechanism to redress the injustice done to victims under the cover of law by the Courts resulting in wrongful conviction and miscarriage of justice. This may be even mandate enactment of legislation by the Parliament.

Upon that, the chief justice said that they would not direct the Parliament, as it is an independent institution.

Khalid contended that the murder trial was conducted by LHC which appears to be unprecedented and denied the accused one forum of appeal. He said in the Court they made Bhutto to sit in cage, which was set at the site of witness box. The Trial Court (LHC) announced its judgment on 18.03.1978 while the Appeal was dismissed by the Supreme Court on 06.02.1979, and Bhutto was executed on 04.04.1979.

He argued that the Appeal was initially heard by nine judges of the Supreme Court from 01.04.1978 till 30.07.1978 but on that date Justice Qaiser Khan retired (who could have but was not appointed as Ad hoc Judge) to continue till the conclusion of the appeal. Thereafter, eight judges heard the appeal but on 20.11.1978 Justice Waheeduddin Ahmed fell ill leaving seven judges to decide the appeal.

Two of the judges comprising the majority of 4 were ad hoc/acting judges of the Supreme Court. Justice Karam Elahee Chauhan was acting judge between 27.04.1978 till 13.06.1979. Only after the dismissal of Bhutto’s appeal, he was appointed a judge of the Supreme Court on 14.06.1979 till 14.02.1982.

Justice Nasim Hassan Shah was ad hoc judge during 18.05.1977 till 14.06.1979. He was appointed as judge of the Supreme Court from 14.06.1979 till 16.04.1993 and then Chief Justice from 17.04.1993 till 14.04,1994. Thus, half of the majority judges who upheld the conviction of Mr Bhutto lacked security of tenure as permanent judges of the Supreme Court during the hearing of the appeal of Bhutto.

He argued that the tenure of the then Chief Justice Yaqub Ali was tempered earlier to appoint Justice Anwarul Haq as Chief Justice on 23.09.1977 to secure legal cover for Martial Law.

Salahuddin Ahmed argued that as the issue of bias relating to Justice Nasim Hasan Shah is concerned the Court has full latitude to give its opinion on that (so long as it can do so without factual inquiry). He stated there are two species of bias – bias in fact and bias in law. The latter does not depend on ascertaining the state of mind of the judge and does not need factual inquiry. The admitted facts are enough.

After the decision in ZAB, certain new grounds of bias emerged from the disclosures of Justice Nasim Hasan Shah in his interview on Geo and in his book “Memoirs and Reflections”.

He stated that according to the book, Justice Maulvi Mushtaq along with the Attorney General of Pakistan Sharifuddin Pirzada came to his house and sought to convince him to become part of the bench in the appeal. Justice Nasim did not reveal this during the hearing of the appeal (either to his fellow judges or to the defence) despite the fact he was part of two benches that rejected ZAB’s plea that Justice Maulvi Mushtaq was biased against him.

Salahuddin contended that in his Geo interview, Shah J says Justice Maulvi Mushtaq was ZAB’s “dushman” and committed “ziadti” by presiding over his trial. Regardless of whether this was true or not, if this was Shah J.’s impression, he was obliged to remand the matter for a fresh trial.

He further said that in his Geo interview, Justice Shah says he thought ZAB had a strong case for reduction of sentence but he did not dissent from the death sentence partly due to “kamzori” and partly because Yahya Bakhtiar annoyed the judges by not arguing for reduction. It is an admission of extra-judicial considerations while reaching the decision.

He argued that in his book, Justice Nasim Hassan Shah admitted that he and the then CJP wanted a unanimous verdict to “obviate all provincial acrimony” and he carried a message to Justice Dorab Patel to agree to unanimous conviction in exchange for a lesser sentence. It is an admission of bargaining over judicial verdicts for extraneous political considerations.

Salahuddin said now if these were statements by one judge against his fellow judges (who denied them) then it would be a case requiring factual enquiry. But these are statements against himself in his own book and TV interview. The fact he wrote this book or gave this interview is not disputed.

Copyright Business Recorder, 2024

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