LHC in spotlight in Bhutto case reference

The Supreme Court was informed on Tuesday that the five judges of the Lahore High Court (LHC) bench that originally awarded the death penalty to former prime minister Zulfikar Ali Bhutto should not have sat on that bench, which was formed only to award the punishment.

A nine-member larger bench led by Chief Justice Qazi Faez Isa heard the Zulfikar Ali Bhutto presidential reference.

During the hearing, amicus curie, Justice (retd) Manzoor Malik, said that there was no precedence for a murder case trial in a high court.

The late Bhutto was convicted in the murder case of Muhammad Khan Kasuri by the LHC over a year after the toppling of his government by military dictator Gen Ziaul Haq. Later, Bhutto’s appeal against his conviction was rejected by the Supreme Court in a 4-3 split verdict.

Bhutto’s Pakistan Peoples Party (PPP) always contended that the party founder and the country’s first elected prime minister was falsely convicted and hanged.

During the PPP government from 2008-13, the then president sent a reference to the apex court to review the case and acquit Bhutto.

At the outset of the hearing on Tuesday, Malik gave arguments on the criminal side of the case.
He said that then acting LHC chief justice, Maulvi Mushtaq Hussain, who headed the five-member bench, had expressed personal grudges against Bhutto and made it part of the order, but he did not leave the bench.

Sitting on the bench despite a personal grudge was something that was more than malice, he continued. The remaining four judges, who signed the order, should also not have sat on the bench.
In fact, Malik said, they sat on the bench to punish Bhutto.

According to Malik, a crime punishable by death could not be tried in a high court.

He added that the high court had never conducted a direct trial of a murder case in India.

On that, Justice Mansoor Ali Shah said that even martial law could not be imposed there.

Giving the history of Bhutto’s case, Malik said that after the investigation, the case was shelved in Oct 1976 on the order of a magistrate. However, after the declaration of martial law, the investigations started again without any written order.

On Sept 11, 1977, an incomplete challan was submitted in which seven accused, including Bhutto, were nominated. Later, accused Ghulam Hussain and Masood Mahmood were pardoned and made approvers, and on Sept 18, 1977, those two names were removed from the complete challan.

Later, Malik continued, the five remaining accused, including Bhutto, were tried and sentenced to death. Bhutto was charged with conspiracy to murder, although the complainant had not mentioned any conspiracy.

Meanwhile, the investigation of the murder case also started, and an incomplete challan of the murder case was submitted to a magistrate's court, which sent it to the sessions court on the same day, while a request to transfer the case to the high court for trial was submitted the next day.

Malik said that Maulvi Mushtaq approved the application without giving notice to the parties and sought the record of the case.

Cleverly, the judges who heard the petition of the complainant were not included in the trial bench because one of the judges had approved Bhutto's bail, he added.

During the hearing, Chief Justice Isa remarked that the manner in which the case was tried seemed to be a fixed match. At one point, Justice Sardar Tariq Masood said that the execution of Bhutto was illegal, asking how four Supreme Court judges could confirm the decision of five LHC judges.

During the hearing, Ahmad Raza Kasuri said that the Supreme Court judges who heard the Bhutto case were no longer alive and their reputation was being damaged by the ongoing proceedings. He said that notice should be issued to his family.

Chief Justice Isa said that the court proceedings were being shown live and that anyone could become a party to the case. Addressing Kasuri, Justice Masood said that if he wished to defend those judges, he could. The case will be heard again on Wednesday (today).