File photo. Aamir Qureshi—AFP
The Supreme Court of Pakistan on Wednesday issued its reserved opinion on the trial, sentencing, and execution of late prime minister Zulfikar Ali Bhutto, ruling he did not get a chance to a “fair trial.”
A nine-member bench, led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justices Sardar Tariq Masood, Syed Mansoor Ali Shah, Yahya Afridi, Aminud Din Khan, Jamal Khan Mandokhel, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali had on Monday reserved its opinion on a 2011 presidential reference seeking to revisit the sentence and execution of the late Pakistan Peoples Party (PPP) founder.
Bhutto was executed on April 4, 1979 in a murder case on orders of the Supreme Court, with his party describing the matter as a “judicial murder.” Then-president Asif Ali Zardari had filed the reference when the PPP was in government and the matter was initially taken up by an 11-member larger bench headed by former chief justice Iftikhar Muhammad Chaudhry. However, after five hearings of the reference, the case was adjourned indefinitely. It was taken up again by the incumbent court on Dec. 12, 2023,.
“Zulfikar Ali Bhutto did not get a fair trial and it was not in accordance with the constitutional requirement of due process,” CJP Isa said on Wednesday while announcing the short order. Noting it was a unanimous decision, he said judges were bound to “do right to all manner of people according to law without fear of favor, affection or ill will.”
As such, he continued, judges must be “willing to confront our past missteps and infallibilities with humility in the spirit of self-accountability and as a testament to our commitment to ensure that justice shall be serving with unwavering, integrity and fidelity to the law.” CJP Isa said that the “reference files that the president of Pakistan has provided us an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of Bhutto under the regime of military dictator Gen Ziaul Haq.”
He then read out the five questions raised in the reference. “Whether the decision of the Lahore High Court (LHC) as well the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of the fundamental rights as guaranteed in Article 4, sub-articles 1 and 2(a), Articles 8, 9, 10-A due process and Article 14 and 25 of the Constitution.” To this question, the CJP said the court found the proceedings did not “meet the requirements of the fundamental rights to a fair trial in due process enshrined in Articles 4 and 9 of the Constitution and later guaranteed as the separate and independent fundamental right under Article 10-A of the Constitution.”
He noted Article 10-A was not part of the Constitution at the time, but the “principles enunciated therein” have always been part of our jurisprudence.
“The second part of the opinion of this question is that the question and the Constitution and the law does not provide a mechanism to set aside a judgment whereby Bhutto was convicted and sentenced. The said judgment attains finality after the dismissal of the review petition by this court,” he observed.
To the second question, “will the conviction leading to the execution of Bhutto be termed as the decision of the SC binding on all courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution?” the CJP said it could not be answered as the reference does not specify the questions of the principle of law regarding which opinion was sought.
The CJP then read out the third and fifth questions: “Whether in the peculiar circumstances of this case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view glaring bias against Bhutto?” and “The second question was whether on the basis of conclusions arrived at inferences drawn from the evidence material in the case and order of conviction and sentence against Bhutto could have been recorded?”
According to the short order, the court ruled that “In its advisory jurisdiction and Article 186, this court cannot reappraise the evidence and undo the decision of the case. However, in our detailed reasons, we shall identify the major constitutional and legal lapses that had occurred with regard to fair trial and due process. We did not find that the fair trial in due process requirements were met.”
On question four, which referred to Islamic injunctions, the court ruled it was not given any assistance on this question. “Therefore, it would be inappropriate to render an opinion on the Islamic aspect,” he said. The CJP then reiterated that the court has decided that Bhutto did not get a fair trial and it was not in accordance with the Constitutional requirement of due process.
‘Historic’ ruling
Speaking with media after the verdict, PPP Chairman Bilawal Bhutto-Zardari, Bhutto’s grandsom, welcomed the “historic” ruling, noting the court had acknowledged that the party founder did not get a fair trial. “We hope that following today’s historical development—when history is being set straight—the future of this country, the court and the democracy will be prosperous,” he added.
Terming Bhutto’s death sentence a stain on the judiciary, the former foreign minister highlighted that the masses lacked confidence in the judicial system and believed that they wouldn’t get any justice from the courts. “Due to this stain on the court, people thought that it would be difficult to get justice,” he claimed and thanked the judges, lawyers and amici curiae for their role. He hoped that the system would start moving in the right direction after this ruling.