Zulfikar Ali Bhutto the founder
of the Pakistan Peoples Party (PPP), the largest and
the most influential political party in Pakistan had
also served as the President of Pakistan from 1971
to 1973 and as Prime Minister from 1973 to 1977. Educated
at the University of California at Berkeley in the
United States and University of Oxford in the United
Kingdom, he was executed in 1979 by the Supreme Court
of Pakistan for authorizing the murder of a political
opponent Nawab Mohammed Ahmed Qasuri, a move that
was taken under the directives of General Muhammad
Zia-ul-Haq.
After General Zia declared Martial Law in the country
on the 5th July 1977, Bhutto and members of his cabinet
were arrested by troops of General Zia. Under martial
law Pakistan was under the temporary rule of military
authorities. The constitution was suspended all assemblies
were dissolved civil rights also stood suspended the
normal activities of civil court were restricted.
In a way there was no Rule of Law in Pakistan. But
Zia promised that elections would take place in October.
The validity of martial law was challenged in Zulfiqar
Ali Bhutto v. State1 , the Court on
10th November 1977 unanimously validated imposition
of martial law over the country under the “doctrine
of necessity”.
The court held “The
reason underlying such a view obviously is that once
an extra-Constitutional action or intervention is
validated on the ground of State or civil necessity,
then, as a logical corollary it follows that the new
Regime or Administration must be permitted, in the
public interest, not only to run the day-to-day affairs
of the country, but also to work towards the achievement
of the objectives on the basis of which its intervention
has earned validation.
In other words, if it can be shown that the impugned
action reasonably falls within one or the other of
the enumerated categories, then it must be construed
as being necessary and thus held valid under the law
of necessity2.” Thus the
imposition of Martial Law, therefore, stands validated
on the doctrine of necessity. Bhutto was later
released on July 29.
Bhutto was arrested again on 3rd September 1977 on
charges of “conspiracy to murder” under
Chapter XVI of Pakistan Penal Code 1860, for authorizing
the murder of a political opponent who was a 35-year-old
politician by the name of Nawab Mohammed Ahmed Qasuri,
in March 1974. It was alleged that Bhuto had targeted
an assault on Nawab Mohammed’s car on 11th November
1974. Bhutto was released within 10 days after his
arrest on 13th September 1977 after, Justice K.M.A.
Samdani of the Lahore High Court, found the evidence
“contradictory and incomplete”. Justice
Samdani had to pay for this; he was immediately removed
from the court and placed at the disposal of the law
ministry. Fearing another arrest, Bhutto named his
wife, Nusrat, the president of the Pakistan People's
Party.
Three days later on 17th September 1977 General Zia
arrested Bhutto again with other number and leaders
of PPP on the same charges, this time under “martial
law”, and moreover Bhutto was disqualified them
from contesting in elections. Bhutto’s trial
began on October 24th October 1977. Bhutto was held
in detention for a month. Zia pledged that new elections
would be held within 90 days but he kept postponing
the elections time again.
Bhutto was tried for Qatl-e-Amd (murder)
under Section 300 of The Pakistan Penal Code which
reads as “Qatl-e-Amd: Whoever,
with the intention of causing death or with the intention
of causing bodily injury to a person, by doing an
act which in the ordinary course of nature is likely
to cause death, or with-the knowledge that his act
is so imminently dangerous that it must in all probability
cause death, causes the death of such person, is said
to commit qatl-e-amd.”, for which the punishment
mentioned under Section 302 are
302 (a) punished with death as qisas
302 (b) punished with death or imprisonment for
life as ta'zir having regard to the facts and circumstances
of the case, if the proof in either of the forms specified
in Section 304 is not available
302 (c) punished with imprisonment of either description
for a term which may extend to twenty-five years,
where according to the injunctions of Islam the punishment
of qisas is not applicable.
Bhutto was also tried under Section 109 of the Pakistan
Penal Code which reads as “Punishment of
abetment if the Act abetted committed In consequence
and where no express provision is made for its punishment:
Whoever abets any offence shall, if the act abetted
is committed in consequence of the abetment, and no
express provision is made by this Code, for the punishment
of such abetment, be punished with the punishment
provided for the offence”.
Masood Mahmood, the Director General of the Federal
Investigation Agency, testified against Bhutto. In
his testimony, he claimed Bhutto had ordered Kasuri’s
assassination and that four members of the Federal
Investigation Agency had organized the ambush on Bhutto's
orders. The four alleged assassins were arrested and
later confessed. They were brought into court as “co-accused”.
Bhutto’s defense challenged the prosecution.
During the defense's cross-examination of witnesses,
the bench often interrupted questioning.
When Bhutto began his testimony on 25th January 1978,
Chief Justice Maulvi Mustaq closed the courtroom to
all observers. Bhutto demanded a retrial, accusing
the Chief Justice of biasness. The court refused his
demand. Bhutto was sentenced under Section 302 (a),
when the Court found that the former President and
Prime Minister was guilty under Section 300. The reason
given by the Hon’ble Court was that, from the
evidence produced before the Court it was beyond all
reasonable doubt that Bhutto was the mastermind behind
the murder of his political rival. The Court also
pointed out that the murder was not a normal murder,
the sole purpose of the murder was to remove his political
rival, and moreover the murder was a pre planned murder.
The Court also added that such a murder not only defeated
political ethics but also the defeated constitutionalism.
On 18th March 1978, Bhutto was declared guilty of
murder and sentenced to death. Bhutto was transferred
to a cell in Rawalpindi central jail and his family
appealed on his behalf, the hearing commenced in May
before the Supreme Court. The matter was placed before
a bench comprising of nine Judges, consisting of Chief
Justice Anwar ul Haq, Justice Muhammad Akram, Justice
Dorab Patel, Justice Abdul Haleem, Justice Nasim Hasan
Shah, Justice Ghulam Safdar Shah, Justice Karam Elahi
Chauhan, Justice Waheedudin Ahmad and Justice Qaisar
Khan. Chief Justice S. Anwarul Haq who was close to
Zia, and had also served as Acting President when
Zia was out, adjourned the court until the end of
July 1978 because five of the nine judges were willing
to overrule the Lahore verdict. The reason behind
adjourning the matter was Justice Qaisar Khan among
the five judges who were willing to overrule the Lahore
verdict would retire very soon and thereafter General
Zia would appoint some of his own men as the Judge.
During the hearing, Justice Qaisar Khan got retired
and Justice Waheedudin Ahmad who was also against
the Lahore verdict fell ill. Still today there is
a lot of controversy whether Justice Waheedudin was
genuinely ill or whether he was asked by General Zia
not to preside over the matter, as he was against
the Lahore verdict. The remaining seven judges heard
the case. The expected majority was reduced to minority
and the decision taken by the Lahore High Court was
upheld. Had the original Bench of nine judges been
maintained, the verdict could well have been 5-4 in
Bhutto's favour.
The appeal was completed on 23rd December 1978. On
February 6, 1979, the Supreme Court issued a guilty
verdict; a decision reached by a 4: 3. Chief Justice
Anwar-ul-Haq in his eight-hundred pages judgment dismissed
all allegations of errors and illegalities of the
Lahore High Court’s trial as totally irrelevant
to the verdict and confirmed the death sentence. The
Bhutto family had seven days in which to file a review
petition. The Supreme Court granted a stay of execution
while studying the petition.
On 24th March 1979 the Supreme Court dismissed the
appeal. Zia-ul-Haq who was already calling the former
President-Prime Minister a murderer while the case
was still under trial, dismissed hundreds of clemency
appeals from all the heads of the country and ordered
for Bhutto’s execution. Zia-ul-Haq's decision
was motivated by political considerations and was
not the action of an impartial head of state. Bhutto
was hanged at Central jail, Rawalpindi, on 4th April,
1979, and was buried in the village cemetery at Garhi
Khuda Baksh.
For the millions of Pakistani’s the trial of
Bhutto and his execution stands as a judicial murder
committed by the Supreme Court of Pakistan.
SURAJIT BHADURI is a 4th year student
pursuing B.A. LLB (Hons) from Gujarat National Law Universiy,
Gandhinagar (Ahmedabad) who has written this trial for
India Law Journal. He can be reached at mailsurajitbhaduri@gmail.com.
