“On 24 March 1979 the Supreme Court, while dismissing the Review Petition of Z. A. Bhutto, observed that grounds urged by the Counsel for the Appellant for mitigation of the death sentence were relevant for consideration by the executive authorities in the exercise of their prerogative of clemency.
On 26 March Justice Safdar Shah (of the Supreme Court, one of three dissenting judges who voted for acquittal of Mr. Bhutto) told media correspondents that the observations of the Supreme Court could not be disregarded by the executive while deciding the question of implementing the death sentence.
On or about 27th March Justice Moulvi Mushtaq (Chief Justice of the Lahore High Court presided over the five-member bench that tried Mr. Bhutto, and unanimously sentenced him to death) conveyed to me that he happened to meet General Iqbal (the Deputy Chief of Army Staff (DCOAS)) at a reception, who was inclined to accept the version of Justice Safdar Shah. Moulvi Saheb desired to have my views.
To my query about the confessing accused Moulvi Sahab disclosed that he had indeed recently learnt that Arshad Iqbal, Rana Iftikhar Ahmed and Ghulam Mustafa were assured by the authorities that they would not be hanged and that during the hearing of the Appeal in the Supreme Court the relatives of Mian Mohammad Abbas obtained similar assurances through General Chishti (Corp commander of 10 Corps and also Chief of Staff to the CMLA-General Zia).
I commented that in the circumstances the confessions were not voluntary and that would affect the validity of conviction and in any case the recommendation of the Supreme Court was entitled to great weight. Moulvi Sahab said he would apprise General Zia about my views.
In the evening, General Zia phoned me and said that Moulvi Sahib had briefed him and indicated that Supreme Court was likely to issue a clarification.
Then in a cordial way General Zia conveyed that arrangements had been made in New York hospital for my bypass surgery and that an appointment had been fixed with Dr. Rosenfeld on 2 April.
I reminded the General that the doctors had advised me to have the operation in February, 1979, but he had asked me to postpone it till the last week of April. General Zia said all arrangements had now been finalized and I should leave as soon as possible.
He wished me well. On 29th of march 1979, in a press release issued by the Supreme Court it was stated that whatever Mr. Justice Safdar Shah had said reflected his personal views only and he had no authority to speak on behalf of other members of the bench. I left for New York on 30th March and underwent bypass surgery.
In the meantime, the Law Ministry and the Law Minister, (A.K. Brohi) in their opinion on the summary to the President observed: “Allah the Almighty has clearly provided as to how the murderer is to be dealt with. He does not permit of mercy to a merciless by the judge or the President.
The authority that allows merciful commutation of a sentence is merciless of the deceased, his heirs and his relatives.
Mercy remission or commutation is negation of justice, and justice is not only to be done to the killer who is surviving because of legal formalities but is also to be done to the deceased who cannot be heard but whose soul looks for justice - the revenge - death for death - and that in fact is the human consideration.”
On 1st of April, 1979 the President rejected the mercy petition and Mr Bhutto was hanged on the 4th of April, 1979.
S.S. Pirzada
13.6.95”
While dismissing the review petition, the Supreme Court made the following observations: “Although we have not found it possible in law to review the sentence of death on the grounds urged by Mr. Yahya Bakhtiar, yet these grounds are relevant for consideration by the executive authorities in the exercise of their prerogative of mercy.”
The Summary for the President regarding Mr. Bhutto’s mercy petition was prepared by the then Interior Secretary, Roedad Khan, (bearing his signature and concurred by the then Interior Minister Mahmoud Haroon). The above observations of the Supreme Court were included in Para 9 of this summary (including in Para 8, Yahya Bakhtiar’s submissions).
However, the Interior Ministry recommended in Para 7 “Normally, factors of age, sex, mental deficiency, provocation, premeditation, absence of intention to kill, drunkenness, sufficiency of evidence, constructive liability and delay are take into consideration while examining a mercy petition.
In our view, none of the above stated guiding principle is attracted by the facts and circumstances of the instant case” and then again in Para 12 “In view of the finding of the Supreme Court on the quantum of sentence the advice of the Law Division and our views in Para 7, no case for commutation of death sentence appears to have been made out”.
The relevant part (Para 8) from the Law Division prepared by then Joint Secretary Mohammed Asadullah and co-signed by then Law Minister A.K. Brohi on 28th March 1979 has been referred to in my father’s note.
On the question of quantum of sentence the Supreme Court had observed:
“Taking now the question of sentence, I will at this stage deal with the case of the appellant Zulfikar Ali Bhutto in the first instance.
The facts summarized in the preceding paragraphs establish beyond any doubt that the appellant used the apparatus of Government, namely the agency of the Federal Security Force, for a political vendetta.
This was a diabolical misuse of the instruments of State power as the head of the administration. Instead of safeguarding the life and liberty of the citizens of Pakistan, he set about to destroy a political opponent by using the power of the Federal Security Force, whose Director General occupied a special position under him.
Ahmed Raza Kasuri was pursued relentlessly in Islamabad and Lahore until his father became the victim of the conspiracy, and Ahmad Raza Kasuri miraculously escaped.
The power of the Prime minister was then used to stifle proper investigation, and later to pressurize Ahmed Raza Kasuri in rejoining the Pakistan People’s Party. All these facts go to show that there are no extenuating circumstances in favor of the appellant, and the High Court was accordingly right in imposing the normal sanctioned by law for the offense of murder as well as its abetment.”
The President simply wrote “Petition is rejected” and signed it as Zia (different from his usual signature, ironically of all days on 1 April). Chaudhry Zahur Ellahi had asked that the pen that General Zia used, be gifted to him (also mentioned in “Working with Zia by General K.M. Arif page 200).
The other co-accused Arshad Iqbal, Rana Iftikhar Ahmed, Ghulam Mustafa and Mian Mohammad Abbas were all hanged around the same time as Mr. Bhutto’s hanging.
Shortly after Mr. Bhutto’s execution, General Zia relieved Mr. A.K. Brohi as the Law Minister and gave the ministry to my father as an additional charge.
He was serving as the Attorney General then. He continued to hold both these cabinet positions until his election as Secretary General of the OIC in 1985, which until this day is the highest diplomatic assignment served by any Pakistani.
Mr. Bhutto said the following at the conclusion of his address to the Supreme Court that spanned several sessions:
“Either I am innocent and the case has not been established beyond reasonable doubt or I am not innocent. Other considerations, other factors, do not come into play.
I have the fullest confidence in Your Lordships and I am certain that Your Lordships will uphold the majesty of law, and will never turn into the matron of Martial Law.” - Another thing that Mr. Bhutto stated was, “Mind my speech; my Urdu is not good, because Pirzada Sharifuddin was my Urdu tutor in Bombay”. I vividly recall the entire family having a big laugh on Mr. Bhuttos’s strange utterance.
It is pertinent that Chief Justice Anwarul Haq had accepted one of Mr. Bhutto’s pleas in a letter written to him by him from District Jail Kot Lakhpat, Lahore (on May 7, 1978) about forming a bench of the full court, rather than exercising his own prerogative and forming a smaller bench with his choice of judges.
Due to the time it took to complete the arguments, one of the judges, Qaisar Khan, reached his superannuation age and retired. Another judge, Waheedudin Ahmad, fell ill and became indisposed and consequently was also not part of the bench.
The decision of the Supreme Court was a split one (4/3) for the sentencing. For (Sentencing) were Anwarul Haq, Muhammad Akram, Karam Chauhan and Nasim Hasan Shah. Dissenting (Acquittal) were Dorab Patel, Muhammad Haleem and Safdar Shah. However, the Review Petition was dismissed unanimously.
It should also be noted that one of the dissenting judges, Muhammad Haleem, was appointed by General Zia to succeed Anwarul Haq as the Chief Justice and served in that capacity from 1981 until 1989.
No discussion of this case would be complete without discussing the level of legal defense mounted on behalf of Mr. Bhutto. Stanley Wolpert in his book “Zulfi Bhutto of Pakistan” on page 259 quoted parts of a letter that Mr Bhutto wrote to his wife Nusrat Bhutto from his death cell:
“I was left to the mercy of a lazy lawyer (referring to Yahya Bakhtiar, lead defense counsel) who did no homework, no research and forgot documents in his car and forgot instructions…..It was a fatal blunder, an unforgivable one”.
Should the Supreme Court revisit the case? At least one member of the formed bench, Syed Mansoor Ali Shah, has made an observation and questioned the re-opening of the matter. One of the appointed amici curiae was one of my father’s closest associates and mentees, the very able Makhdoom Ali Khan (former Attorney General).
Some other amici the court may wish to consider from my father’s associates would be Anwar Mansoor Khan (former Attorney General), Salman Butt (former Attorney General) and Mohommed Waqar Rana (former Additional Attorney General).
What would my father think of the Supreme Court entertaining the reference at this time?
He had a razor-sharp mind and coupled with an encyclopedic knowledge of law, enabled him to take both sides of any legal dispute and make such persuasive arguments for each side that most judges in Pakistan would agree with him.
No wonder that Grand Old Man of Karachi (and his good friend) Ardeshir Cowasjee used to call him Jadoogar (Wizard).
My father believed in the sanctity of the Supreme Court, the rule of law as interpreted by the court and its judgments (even on the handful of occasions, in over 60 years of appearing before the court, when the court decided against his arguments).
I am reminded of the dictum of that great jurist Robert Jackson; referring to the Supreme Court of the USA, he said:
“We are not final because we are infallible, but we are infallible only because we are final.”
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