ISLAMABAD: Retired Sup­reme Court Justice Manzoor Malik has pointed out harrowing illegalities in the trial of former prime minister Zulfikar Ali Bhutto, insisting that the case is rightly described by people as a “judicial murder”.

One by one, Justice Malik, an expert in criminal law and one of the amici, demonstrated malfeasance in the murder trial during Tuesday’s hearing by an SC bench of a presidential reference seeking the top court’s opinion on revisiting the death penalty awarded to the PPP founder.

The way the trial was conducted showed something beyond malice and dishonesty, which was floating on the surface, Justice Malik regretted.

The nine-judge SC bench had taken up the reference filed in April 2011 on behalf of ex-president Asif Ali Zardari.

In March 1979, nearly two years after the Bhutto government’s ouster by military dictator Gen Ziaul Haq, a seven-judge SC bench, in a split four-three verdict, upheld the Lahore High Court’s verdict awarding death sentence to ex-PM Bhutto.

Justice Malik notes ex-PM was not named as accused in two FIRs of Kasuri’s assassination

At the conclusion of Tuesday’s proceedings, Ahmed Raza Kasuri, a complainant in the case, even requested the court to issue notices to the relatives of prominent judges who had conducted the trial, since their reputation and image were at stake.

He said a lot of things had been said about these judges and tho­ugh the judges may have passed away, their successors must be alive to protect their honour.

PPP Chairman Bilawal Bhutto-Zardari, who was present inside Courtroom No 1 to witness the hearing, approached Justice Malik to commend him for his preparation and the way he presented the case.

The former prime minister, Justice Malik highlighted, was never named as an accused in the two FIRs of the assassination of Nawab Mohammad Ahmed Kasuri, adding that investigation into the murder allegations was closed on the orders of a magistrate in October 1976, but a re-investigation commenced on July 24, 1977 without any written order from the magistrate or any quarter, when the record of the case was taken from the police in August 1977.

Later, an incomplete challan was submitted to the court on Sept 12, 1977 and sent to the district and sessions judge the same day, he recalled, adding that on the same day an application by the state for the transfer of the murder trial was allowed without any reason and without any notice to the accused [Bhutto], in which the accused were summoned to appear before the high court.

This is one of the cases, Justice Malik emphasised, which should be taught to students of law to explain how a miscarriage of justice happens. Thereafter, Mr Bhutto moved an application before the high court on the grounds of bias, since the case was transferred without any notice to him.

While rejecting this application, the five-judge LHC bench held that under Section 526 of the Criminal Procedure Code, no notice was required to be issued to the accused, and therefore, no bias or a mistake was committed by the court.

This was a blatant and sheer violation of the law, Justice Malik regretted.

Moreover, under the law, the sessions judge always referred award of the sentence of death to the high court for confirmation by a two-judge bench. Without such a confirmation, the sentence of death cannot be executed, he explained.

Justice Sardar Tariq Masood deplored that it was quite clear that there was no order of confirmation of the death sentence by the high court and this also showed the execution of the death sentence was absolutely illegal.

Since there was no reference from the sessions judge to the high court, no confirmation could be made, Justice Malik replied.

Justice Malik emphasised that the five-judge high court assumed the jurisdiction to conduct the trial knowing that a two-judge bench of the same court was seized with a complaint moved by Ahmed Raza Kasuri. But what had become of the complaint, nobody knew till date, he said.

The court asked Mr Kasuri to submit the complaint he filed before the two-judge high court, if he had a copy.

Published in Dawn, February 28th, 2024

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