Stoking the ashes

Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be eager to deal out death in judgement.—JRR Tolkien

Any apex court is a far inferior arbiter of justice than the verdict given under the gavel of history that had squarely vindicated Bhutto long long ago. I am, therefore, quite perplexed as to why President Asif Zardari sent a reference to the Supreme Court in 2011 to revisit the Bhutto case. He invoked its advisory jurisdiction during the first tenure of his presidency.

The last two Chief Justices decided, and perhaps rightly so, to let the reference be swept into the dustbin of history. Perhaps they realised the futility as it would not have unraveled the mystery of Bhutto going to the gallows. More so, as the ensuing perception transformed it as Bhutto’s judicial murder with the passage of time.

Not going with his predecessors’ wisdom, the present Chief Justice decided to finally dispose of the reference. A larger bench of nine judges was thus constituted to hear it out . But it became obvious from the remarks of the judges made during the open trial that they were not inclined to look into the case for a deep and conclusive examination. The case had attained finality some more than four decades ago. How could they now change the judicial history and exonerate Bhutto charged with political vendetta leading to a murder? Bhutto was enmeshed as the main character who had used the Federal Security Force to eliminate his political rival in which the latter’s father got killed instead.

Needless to reiterate the case as its details are firmly etched in the memory of the older generation, and well documented for posterity in the repository of our chequered political history.

Understandably, the opinion rendered by the current Supreme Court had to be temperate and expedient, yet bringing some consolation for Bhutto’s clan. The facts and evidence of the murder conspiracy allegedly involving Bhutto and his Federal Security Force did not come under scrutiny at all. The Supreme Court gave its carefully worded opinion that was luckily acceptable to the scions of the Bhutto family, Pakistan People’s Party and its supporters. The essence of the apex court’s conclusion was that Bhutto did not get a fair trial in accordance with the constitution as the due process of law was not observed.

I have no hesitation in saying that the outcome of the reference has utterly disappointed me. I had known throughout the years of our tumultuous political journey that Bhutto did not get a fair trial as the case was directly sent to the Punjab High Court for trial instead of the District and Sessions Court. I am not a legal expert to comment whether a concurrent jurisdiction is available in our Criminal Procedure Code for making such a deviation from an established practice of our criminal justice system. In short, our pliable judicial system was used by Gen Zia ul Haq to his best advantage.

Bhutto’s trial was undoubtedly politically motivated but then we cannot ignore the murder of Ahmad Raza Kasuri’s father. A crime had purportedly taken place under the umbrella of the Federal Security Force. Masood Mahmood and Ghulam Hussain from FSF turned approvers in the case by will or by coercion, God only knows.

No matter what, I believe that awarding capital punishment on the evidence of the approvers, further strengthened by a number of slanting witnesses, is like demeaning the justice to the lowest category of law.

Has that unscrupulous legal system become any better now? The answer is a big No! In fact, we are living through a period when the criminal justice system in Pakistan is nothing more than a mockery of constitution, law and trials.

If the idea behind sending the reference was to gain some political mileage and resurrect the vengeance free image of Bhutto then I am afraid PPP threw a stone in murky waters. They had better relied on GB Shaw’s thought: “Criminals do not die by the hands of the law. They die by the hands of other men.”

You don’t have to question a trial that was always considered a mistrial. You don’t have to legally exonerate a great leader who was acquitted by the people at large. You don’t have to seek resurgence of a leader who still throbs in the heart of his followers.

You don’t need official titles such as ‘Shaheed’ and a ‘National Hero’ for Bhutto by passing resolutions in the National and Provincial Assemblies. The world recognises him as the great Muslim leader of his times who successfully revitalised the OIC and led the famous Islamic Summit in Lahore in 1974.

If at all the purpose of reference was to wipe off the stains of blood on the hands of Bhutto, then it proved a flawed strategy. An enactment of the law was required to allow the Supreme Court to conduct a retrial with the sole purpose of going through the complete evidence to either retain or overturn Bhutto’s implication in the crime which was judicially adjudged as a collusion between Bhutto and his own creation in the name of Federal Security Force.

But needless to point out that this move would have served as a double edged sword, a risk that was best avoided in my opinion. We exist in a country where a bottle of liquor, personally recovered by the former Chief Justice of Pakistan, Saqib Nisar, from an under-trial political prisoner dubiously convalescing in a Karachi hospital was turned into honey while going through our corrupt evidentiary process and rotten legal system. Keeping in with the title, I conclude with one of my favourite couplets from Ghalib:

Jala hai jism jahan dil bhi jal gaya hoga;

Kuredte ho jo ab raakh justuju kya hai.

Published in The Express Tribune, March 26^th, 2024.

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