ISLAMABAD: Continuing his arguments as amicus curiae for a second day on Wednesday, retired Supreme Court judge Manzoor Malik described the presidential reference seeking an opinion on revisiting the death penalty awarded to former prime minister Zulfikar Ali Bhutto as “historical question”, saying it’s for the top court to rectify the miscarriage of justice or simply brush it aside on technical grounds.

Justice Malik, an expert in criminal law, cited an application of the PPP founder before the Lahore High Court seized with the murder trial, uttering the historical words: “It was not a trial of murder but a murder of trial.”

Though the reference has been sent by the president under the court’s advisory jurisdiction, the Supreme Court has the authority to do complete justice by invoking Article 187 of the Constitution, contended Justice Malik.

A nine-judge SC bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, had recently taken up the reference filed in April 2011 on behalf of then president Asif Ali Zardari. The court hinted at concluding the proceedings on Monday next week.

Ex-SC judge terms it ‘a murder of trial, not a trial of murder’; apex court hints at concluding proceedings on Monday

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 LHC verdict awarding death sentence to ex-PM Bhutto.

At the conclusion of arguments by Justice Malik, complainant Ahmed Raza Qasuri came to the rostrum and wondered whether the court had crossed the bridge of maintainability as Justice Malik appeared to be more of a defence counsel than the friend of the court (amicus).

Justice Malik explained that he did not want to go into political repercussion of the murder trial of the former prime minister, but it was a question of history, arguing that the injustice committed to Mr Bhutto was still alive in the minds of the people of interior Sindh.

Dissecting the confession of former director general (DG) of the Federal Security Force (FSF) Masood Mehmood who later turned approver, the ex-judge explained that his confession was not confidence-inspiring since his claims seemed not plausible in every aspect of the matter. No prudent mind will ever fathom what the approver was claiming in his statement, he said.

During the hearing, CJP Isa asked Attorney General for Pakistan Mansoor Usman Awan to find out from the government record how did and under what circumstances the approver left for the US where he died eventually — whether under some deal offered to him or witness protection programme or he just chose to move to America.

Justice Malik contended that the FSF director general’s statement was not natural and after reading the same, it emerged as if he was the man of integrity and his personality even was appreciated by then PM Bhutto that suggested that he had a clean slate.

And from his statement it appeared as if Mr Bhutto was a person who would never tolerate any dissent and even go to the extent of taking life of political opponents; besides the intention of raising the FSF was to kill the ex-PM’s political opponents and that Mr Bhutto was looking for a suitable person for the task, he added.

The CJP wondered whether it was possible that Masood Mehmood himself was the perpetrator since he might have animosity with the complainant and then he put it on the shoulders of Mr Bhutto.

Zahid F. Ebrahim, another amicus on behalf of Fatima Bhutto and Zulfikar Ali Bhutto junior, contended that it was never too late to right a wrong, adding that “we will always be a prisoner to our crimes if we do not correct what we now know as plain miscarriage of justice”.

He said there was no doubt that an elected prime minister was overthrown in a military coup and a farcical judicial trial was orchestrated for no other reason but to murder Mr Bhutto and perpetuate a dictatorship.

Farooq H. Naek, appearing on behalf of PPP Chairman Bilawal Bhutto-Zardari emphasised that one right of appeal to the ex-PM was denied when the high court acted as the trial court and thus violated the requirement of due process.

Aitzaz Ahsan, another amicus, contended that the judgement in Bhutto case has suffered because of the environment where judges were made oppressive because of the martial law.

Published in Dawn, February 29th, 2024