May 9, 2011

Holes in Bhutto’s trial

ZAB openly said ‘they’ would not spare him

By S. M. Masud

A presidential reference is now before the Supreme Court of Pakistan to revisit the case of death of Zulfikar Ali Bhutto. Under Article 186, the president, if at any time, considers it desirable to clarify any question of law which he thinks is of public importance, can refer the question to the Supreme Court.

Before we go any further, certain prerogatives of the Supreme Court are to be kept in mind. First, it is not bound by its own decision. It has in a decision, titled PLD 1962 S.C. 335 in case of Lt. Col. Nawabzada Muhammad Amir Khan Vs. The Controller of Estate Duty, etc. held that this court is competent, no doubt, to reconsider a question of law and indulgence by way of review which may be granted to prevent irremedial injustice being done by a court of last resort. If there is a material irregularity, it has powers to do “complete justice” and is not bound by any technicalities.

The Guardian, in a report from Rawalpindi in its issue of May 22, 1978, published that after the first two days of ZAB’s appeal, it appeared to most disinterested foreign observers that a number of holes had already appeared in the government’s case against him.

Daily Mail reported on April 28, 1978, that the selection of a panel of five judges for the trial court was not a normal move. The two judges Justice Samdani and Justice Mazhar ul Haq, who had earlier heard the case, were not included. An appeal regarding the non-trust on the bench before the Supreme Court was disallowed and it was ordered that the objection be raised before the same bench of the High Court.

Syed Afzal Haider in his book Bhutto Trial has clearly alleged that record was collected by interested authorities much before the military coup`detat of July 4, 1977, and was placed before senior advocates like Barrister M. Anwar and A.K. Brohi who were provided separate rooms in the GHQ for preparation of prosecution case and interview with officials of FSF (Ref. page 400 of Bhutto Trial).

After July 5, 1977, ZAB Bhutto was arrested. On September 13, 1977, Mr. Justice K.M. Samdani of Lahore High Court granted interim bail to him in the murder trial. I was informed by late Ch. Liaqat Warraich, advocate in the High Court, that ZAB is going to be detained again and Chief Justice Mushtaq Hussain was on hotline with General Zia. ZAB was sitting with Sheikh Rashid and some important leaders, including ex-Chief Minister Punjab Sadiq Qureshi in the retiring room of the Registrar for submitting the bail papers when I informed him about his possible detention. He shouted, “Look! What is Masud saying?” Sadiq Qureshi went out to confirm if the report was correct. He came back saying the rumour was ill-founded.

ZAB openly said they would not spare him. The same day he wrote a letter to Begum Nusrat Bhutto which is referred to by many writers in their books. It opens with my name that S.M. Masud today informed him that he was going to be detained. Through this letter, he authorised Begum Nusrat Bhutto that the Pakistan’s People’s Party, in the event of his detention by any preventive law or martial law which may be issued by General Zia, should take delegated steps. He also expressed his fears that Zia wanted to perpetuate himself by using the name of Islam and also by effectively creating a divide in the party. Begum Bhutto used her delegated authority under this letter to expel Maulana Kausar Niazi from the party.

ZAB’s defence was completely ignored. Rao Rashid suffered all consequences for giving affidavit in favour of ZAB and suffered detention during trial on refusal.

Cross examination was limited, contradictions in evidence were ignored, “hearsay evidence” and false evidence was brought on record. Justice Shafiur Rehman’s enquiry report was destroyed; its copy from the office of former Advocate General, Punjab, Mr. A.S. Najam, was stolen.

A fresh larger bench of the Supreme Court has been constituted. The apex court is now again been placed with the authority to reverse the verdict. The Bhutto’s trial was significant because for the first time the decision was discussed and criticised publicly in Pakistan. The Bhutto trial was seen as a travesty of justice and the manner it was conduced threw doubts into the independence and autonomous character of the judiciary, wrote Mushahid Hussain in The Frontier Post.

Victoria Schofield on page 260 of her book, Bhutto, Murder and Execution, writes: “Perhaps one day there will be a re-trial to set the record straight.”

I wish the Supreme Court could investigate the manner in which the independent opinion of all the judges is written at the conclusion of the judgment.

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