A leaf from history: Supreme Court rejects Bhutto’s appeal

Published December 21, 2014
Zulfikar Ali Bhutto  — Reuters/file
Zulfikar Ali Bhutto — Reuters/file

It was almost time for the verdict in the appeals case to be announced by the Supreme Court. After Zulfikar Ali Bhutto’s statement was recorded, the court had also heard the other four accused in the murder case of Nawab Mohammad Ahmad Kasuri. But a day before the verdict, on Feb 5, a series of arrests was made throughout the country under the title ‘Operation Sweep’.

Though the military government had claimed that Operation Sweep was aimed at “history sheeters and suspects whose names were on police record,” it was actually an attempt to pre-empt any serious reaction from the opposition. A large number of PPP activists were arrested from all over the country, while Begum Nusrat Bhutto was kept detained in her house. The action was ordered in Islamabad but provincial governments were also asked to make arrests and ensure that no serious reaction ensued. On that day, all educational institutions were closed indefinitely and examinations postponed.

On Feb 6, 1979, the apex court handed its decision: all appeals were rejected and the Lahore High Court’s decision to award capital punishment to Bhutto and four others still stood. But it was a split decision, in which four judges upheld the LHC verdict while three judges dissented. The decision was read out by Chief Justice Anwarul Haq. The court had begun hearing the appeal on May 20, 1978 while proceedings continued till Dec 23, 1978.


PPP activists and others rounded up in Operation Sweep ahead of the verdict


The verdict, written by the chief justice, comprised over 825 pages. Together with dissenting notes from the three other judges, the judgment was spread over 1,495 pages. The majority judges were Justice Anwarul Haq, Justice Mohammad Akram, Justice Karam Illahi Chowhan and Justice Nasim Hassan Shah. Those arguing for Bhutto’s acquittal included Justice Durab Patel (from Balochistan), Justice S. Ghalam Safdar Shah (NWFP) and Justice Mohammad Haleem (Sindh).

In his main decision, Chief Justice Anwarul Haq dismissed all errors and illegalities during the Lahore high Court trial as totally irrelevant to the verdict. He termed the appeal as being “unfounded and based on misunderstanding”.

“I am left in no doubt that the prosecution has fully succeeded in establishing its case,” he wrote, arguing that the cumulative effect of all oral and documentary evidence conclusively established the existence of motive on the part of appellate (Bhutto), and the existence of a conspiracy between him, approver Mian Mohammad Abbas, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad.

As to their sentences, he went on to say: “This was a diabolic misuse of the instruments of state power by the head of 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 (FSF), whose director general occupied a special position under him. Ahmad Raza Kasuri was pursued relentlessly in Islamabad and Lahore until finally his father became the victim of the conspiracy, and Ahmad Raza Kasuri miraculously escaped … the High Court was accordingly right in imposing the normal penalty sanctioned by law for the offence of murder as well as its abetment.”

The dissenting judges held that they could not find any direct evidence of a conspiracy to murder Nawab Kasuri. Justice Dorab Patel did not consider Masood Mamhmood as a reliable witness, and stated that his evidence required strong corroboration needed in this type of murder case, based on the evidence of an approver.

Justice G. Safdar Shah also spoke about the credibility of Mahmood’s statements and argued that they were more in the nature of hearsay, and thus, were not admissible as evidence. Besides, he wrote, this approver was not a reliable witness. He felt that the existence of a criminal conspiracy between Zulfikar Ali Bhutto and Masood Mahmood had not been proved.

Justice Mohammad Haleem, agreeing with Justice G. Safdar, said that the case against Bhutto and Mian Abbas had not been proved, but since the other appellants had confessed to the crime, there was no doubt with regard to their guilt.

During proceedings, Mian Mohammad Abbas, who was director of operations of the FSF, had confessed again and said that he took part in the criminal act because he could not afford disobeying the orders of his superiors. Similarly, another accused, Inspector Ghulam Mustafa, said in his statement that he did not commit any crime except that he obeyed the orders of his superiors. He told the court that he acquired the arms. He said every employee had to take an oath to remain loyal to Z A. Bhutto.

Another inspector and accused, Arshad Iqbal, confessed to his participation in the crime and said the employees of FSF were forced to commit illegal acts, and on refusal, the person would be punished. The last accused and former Inspector of the FSF Rana Iftikhar Ahmad said that he took part in the crime as he had no option. After their statements, the hearing in the appeals was closed and on Dec 23, 1978, the court reserved the verdict.

The Supreme Court ordered that Mr Bhutto should not be transferred in any other jail for seven days. This week was allowed to the appellate to file a clemency appeal. The court also ordered the jail authorities that Bhutto’s lawyers should be allowed to meet him. When the judgment was being announced, no member of the Bhutto family was present in court; their representation could only come through their counsel, Abdul Hafeez Pirzada.

The Supreme Court’s comments appeared in both the national and international media. The lawyers’ community held the opinion that in case of a tie, the swing vote of the chief justice should not have been cast. In such a high profile case, the maximum punishment was based on one vote — the CJ’s vote — which could have been misjudged. In such cases, a retrial was necessary. Based on this view, an American journal headlined the story with “Death by proxy.”

On Feb 13, 1979, Yahya Bakhtiar filed a review petition spread over 80 pages, which was accepted for hearing on the 24th. On Feb 19 Hafeez Pirzada filed an application in the court that Justice Waheedudin and Justice Qaisar Khan be included in the bench which would hear the review petition. This request was turned down on Feb 24, and the bench remained the same which had heard the appeal. On March 17, the hearing in the review petition came to an end and the judgment was reserved.

shaikhaziz38@gmail.com

Published in Dawn, Sunday Magazine, December 21st, 2014

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