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Bishwajit Bhattacharyya

C.R.Dua

Diljeet Titus

Hemant Batra

John Callagy

K.K.Lahiri

K.S.Bagga

Lalit Bhasin

Dr. Linda S. Spedding

Martin Rogers

M.L.Sarin

Prof. V.S.Mani

Rajiv Atmaram

Rajiv K.Luthra

Rajiv Nayar

Editors

Gitanjali Saraf

Vikramaditya Rai

Sagar S.P. Singamsetty

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Vikrant Pachnanda

Associate Editors

Naina Pachnanda

Shashank Manish

Vishwam Jindal

Editorial Team

Conference Corner

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Scholarship Corner

Historical Trials

The Trial of Zulfikar Ali Bhutto

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 1977unanimously 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 Mohammeds 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. Bhuttos 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 PenalCode which reads as Qatl-e-Amd: Whoever, with the intention of causing death or withthe intention of causing bodily injury to a person, by doing an act which in the ordinarycourse of nature is likely to cause death, or with-the knowledge that his act is soimminently dangerous that it must in all probability cause death, causes the death ofsuch person, is said to commit qatl-e-amd., for which the punishment mentionedunder 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 factsand circumstances of the case, if the proof in either of the forms specified in Section304 is not available

302 (c) punished with imprisonment of either description for a term which may extendto twenty-five years, where according to the injunctions of Islam the punishment ofqisas 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 noexpress provision is made for its punishment: Whoever abets any offence shall, if theact 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 thepunishment 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 Kasuris 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. Bhuttos 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 Honble 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 Courts 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 Bhuttos 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 Pakistanis 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.

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