Pakistan's Judiciary Revisits A 'Judicial Murder' 44 Years Later

Chief Justice of the Lahore High Court Maulvi Mushtaq Hussein was a known Bhutto hater and made no secret of his dislike and enmity with the former Prime Minister

Pakistan's Judiciary Revisits A 'Judicial Murder' 44 Years Later

At 2:00 AM on the 4th of April 1979, at the Central Jail Rawalpindi, Zulfikar Ali Bhutto, who was the first elected Prime Minister, former President and former foreign minister of Pakistan, was informed by his jailers “It’s time.” He was removed from the death cell and taken to the gallows or “Phansi Ghar” for execution. The word had leaked out among the inmates of the jail and the melancholy quiet of the night was now punctuated with recitations from the Holy Quran. Head held high, in proud defiance, Bhutto walked the short distance to his place of execution – his tryst with destiny, and the final act in his turbulent chaotic and historical career.

Tara Masih, the official executioner, tightened the noose around Bhutto’s neck, and now, in the eerie silence of that macabre scene, those present heard Bhutto’s final words “Finish it, finish it!” At a signal from the jail superintendent, Tara Masih pulled the lever. Bhutto was hanged from the neck until dead. 

The trial of Zulfikar Ali Bhutto and five other defendants commenced on 11 October 1977 in the Lahore high court before the following five judges (i) Maulvi Mushtaq Hussein, Chief Justice (ii) Jaki ud Din Pal, Judge (iii) MSM Qureshi, judge (iv) Aftab Hussein, judge (v) Gulbaz Khan. The public prosecutor was Ejaz Hussen Battalvi, and Bhutto was defended for part of the proceedings by DM Awan, Ehsan Qadir Shah and Enayatullah. 

General Zia-ul-Haq’s mind was already made up. He was determined to kill Bhutto. This is evident from the interview he gave on 6 September 1977, in which he confirmed that he had personally ordered the arrest of ZAB and added “Mr Bhutto was a Machiavelli in 1977. An evil genius running the country on more or less Gestapo lines, misusing funds, blackmailing people, detaining them and even perhaps ordering people to be killed.” The Learned judges of the Lahore High Court pronounced their historic but unfortunate judgment on 18th March 1978. Bhutto was found guilty and sentenced to death. This unanimous decision stated that the prosecution had proved their case “to the hilt” and that Zulfikar Ali Bhutto was a “compulsive liar.” To add fuel to fire, Zia had stated in an interview to the Urdu Digest on 15 September 1977 that Bhutto is a cheat and a murderer, and he will not be able to escape the severest punishment on the basis of the evidence already available.

Chief Justice of the Lahore High Court Maulvi Mushtaq Hussein was a known Bhutto hater and made no secret of his dislike and enmity with the former Prime Minister. Just before the beginning of the trial, the constitution of the court had been challenged by Bhutto on the grounds of appointment of Maulvi Mushtaq Hussein as the Chief Election Commissioner by the Zia regime. Bhutto’s appeal and rejoinder to the press alleged partisanship from justice Maulvi Mushtaq Hussein and labeled it a travesty of justice in combining the office of the Chief Election Commissioner and Chief Justice of the High Court.  Bhutto also pointed out the visible bias and vindictive nature of Maulvi Mushtaq by bringing to light the fact that the latter had, on the retirement of Justice Iqbal, been superseded during Bhutto’s rule although he was the seniormost judge of the Lahore High Court. Bhutto took the view that since that day he had nurtured a grudge against the former Prime Minister. All the allegations were repeated in the application for transfer of the case on behalf of Bhutto before the high court and the supreme court of Pakistan. The high court dismissed the appeal summarily on 9th October 1977.

After being sentenced to death by the Lahore High Court, Zulfikar Ali Bhutto appealed to the Supreme Court of Pakistan on 25 March 1978. ZAB appealed to the Chief Justice to withdraw from the case, as he had publicly criticised Bhutto and his Government and had even referred to Zia-ul-Haq as a “national saviour” and had also acted as Head of State during Zia’s absence from the country. This appeal was rejected by Anwar Ul Haque as being “unfounded and based on a misunderstanding.” The CJ announced that he was going to nominate a full bench of nine judges and that his view will be only one of the nine. Hearings of the appeal continued from 20 May 1978 to 23 December 1978. 

The judgment was delivered on 6 February 1979. It was a split decision of 4:3 that finally sealed the fate of the charismatic former Prime Minister of Pakistan. During the course of the trial in the Supreme Court, fate played a trick on ZAB not once but twice. The number of judges hearing the appeal was reduced to seven from nine. Justice Qaiser Khan retired on 30 July and justice Wahid ud Din stepped down after suffering a stroke on 20 November 1978. The handpicked Zia nominee Chief Justice Anwar Ul Haque, a member of the general’s Arain biradri, wrote the judgment, dismissing the Bhutto appeal and upholding the conviction and death sentence awarded by the Lahore High Court. Justice Mohammed Akram, Justice Karam Elahi Chohan and Justice Nasim Ali Shah agreed with the decision of the Chief Justice and the three other judges who allowed the appeal of Bhutto and the other accused Mian Abbas were Justice Dorab Patel, Justice Haleem Sidiqui and Justice Safdar Shah. Ironically, another paradox of this historical case is that all the four judges who upheld the death sentence belonged to the Punjab province. The Chief Justice was a part of the “Jullundari Junta” that ruled Pakistan and a member of the all-powerful Arain biradri of Zia-ul-Haq. As for the three judges who disagreed with the Chief Justice, they all belonged to the smaller provinces of Pakistan.

The controversial trial and conviction of ZA Bhutto has been called a “judicial murder” by many renowned lawyers and leading jurists of the world. Bhutto family and peoples party stalwarts have always maintained that the judges came under pressure from General Zia-ul-Haq to sentence Bhutto to death. After many decades of Bhutto’s execution, former President Asif Ali Zardari, who is Bhutto’s son-in-law, filed the presidential reference in 2011 when the PPP was in power, citing Article 186 (1 and 2) of the Constitution, which empowers the president to refer a question of public importance to the Supreme Court to seek its opinion or interpretation. Almost 44 years after Bhutto’s execution, a nine-member bench of the Supreme Court has commenced on 12 December 2023 the long pending Presidential Reference seeking to revisit the 1979 controversial court decision in the case of ZA Bhutto. The bench was headed by the Chief Justice Qazi Faez Isa and consists of Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah and Justice Yahiya Afridi, Justice Amin ud Din Khan, Justice Jamal Khan Mandokhel and Justice Mohammed Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali. The court appointed around a dozen new amici curiae to seek their assistance and legal submission in the case. The court also allowed the legal heirs of Bhutto to appoint their counsels if they wanted to. The case was adjourned until the second week of January, with the court hinting that it might conduct daily hearings once proceedings restarted.

The nine-member Supreme Court bench headed by Chief Justice Qazi Faez Isa finally announced its review decision on 6 March 2024, just 44 years after the hanging of ZA Bhutto in the Rawalpindi Central Jail. The Supreme Court of Pakistan announced its reserved opinion regarding the presidential reference against the ‘controversial’ death sentence handed to Zulfikar Ali Bhutto, stating that the former prime minister Bhutto was not afforded a “fair trial.” CJP Isa announced the short order, stating, “Zulfikar Ali Bhutto did not receive a fair trial and due process as guaranteed in Articles 4 and 9 of the Constitution.” 

Bilalwal Bhutto Zardari, the chairman of the PPP, along with some party stalwarts, was present in the court to hear the verdict. And later, talking to the media, he termed the verdict as historical. Bilawal was emotionally charged and was seen wiping away his tears as the judgment was announced. As the grandson of Zulfikar Ali Bhutto, who has succeeded him as the head of the PPP, Bilawal said that the court has accepted that Zulfikar Ali Bhutto did not get the opportunity for a fair trial. He added that the court had given the verdict to correct past mistakes. He added that the people of Pakistan had pinned their hopes on this case, expecting that the court would finally do justice, and now that the verdict had come, they can hope to attain justice in the courts. The PPP chairman said his party would consult with their lawyers when a detailed written judgment was released. 

PM Shehbaz Sharif, in a message, said that while it is not possible to correct a historical mistake, admitting a serious mistake creates new history and new traditions. He termed the court's decision as one that admits to the past abuse and corrects it as a positive step.