Supreme Court rules ZAB murder trial was unfair and failed to follow procedural rules

ISLAMABAD: Pakistan’s Supreme Court has said the murder trial of former prime minister Zulfiqar Ali Bhutto was unfair and lacked due process, noting that the country and its courts were under martial law at the time.

The observation was part of a detailed 48-page opinion issued in response to a presidential referral filed by former President Asif Ali Zardari more than a decade ago.

The petition, heard by a larger nine-member bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, sought an opinion under the advisory jurisdiction of the Supreme Court on review of Bhutto’s death sentence.

The bench comprised Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.

Filed in April 2011, the petition sought a review of the death sentence handed down to the PPP founder.

The Supreme Court’s detailed opinion said that the trial procedure before the Lahore High Court (LHC) and the appeal procedure before the Supreme Court did not meet the requirements of the fundamental right to fair trial and due process as described in Articles 4 and 9 of the Constitution, and later guaranteed by Article 10A.

The opinion addressed all the issues raised in the reference, emphasizing that judges are required to administer justice impartially and without fear or favour. It noted that some landmark cases have created a public perception that fear or favouritism influenced judicial decisions.

The Supreme Court explained that the trial and appellate courts during Bhutto’s trial were not genuine courts within the meaning of the Constitution because they were functioning under martial law.

When judges pledge allegiance to dictators, courts lose their independence and legitimacy. The opinion emphasizes that the Supreme Court, in its advisory jurisdiction, cannot re-evaluate the evidence and overturn the decision.

The opinion also points out that the trial court and the appellate court are functioning without constitutional rule and that the regime of General Zia-ul-Haq has replaced the democratic order with its will.

He stressed that General Zia-ul-Haq was a direct beneficiary of Bhutto’s guilty verdict, as Bhutto’s acquittal could have led to charges of high treason against Zia.

The opinion also recalls that the Supreme Court, including the three judges who acquitted Bhutto, had declared that fundamental rights had been suspended since July 5, 1977.

In conclusion, the opinion stated that the trial and conviction had failed to meet the standards of due process and a fair trial, thereby undermining the legitimacy of the proceedings.

He noted that innocent men were being rushed to the gallows. In March 1979, a seven-judge Supreme Court upheld Bhutto’s death sentence in a split 4-3 verdict, nearly two years after her government was overthrown by General Zia-ul-Haq.