9-member apex court bench says judiciary must be willing to confront past missteps, fallibilities with humility in the spirit of self-accountability n Court opines we can’t correct ourselves and progress in right direction until we acknowledge our past mistakes.

 

ISLAMABAD  -  The Supreme Court of Pakistan Wednesday observed that the founder of Pakistan Peoples Party (PPP) Zulfikar Ali Bhutto was not afforded a fair trial by the Lahore High Court and the apex court.

A nine-member SC bench, headed by the Chief Justice Qazi Faez Isa, and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musar­rat Hilali unanimously delivered its opinion on the Presidential Reference, which it had reserved on March 4. The written opinion stated; “In the course of perform­ing our core duty to administer justice ‘in accordance with the Constitution of the Islamic Re­public of Pakistan and the law’, we (judges) are bound to ‘do right to all manner of people, ac­cording to law, without fear or favour, affection or ill-will.”

It added, “There have been some cases in our judicial his­tory that created a public per­ception that either fear or favour deterred the performance of our duty to administer justice in ac­cordance with the law. We must, therefore, be willing to confront our past missteps and fallibilities with humility, in the spirit of self-accountability, and as a testa­ment to our commitment to en­sure that justice shall be served with unwavering integrity and fidelity to the law. We cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes.”

The advisory jurisdiction, un­der Article 186 of the Constitu­tion, requires this court to ren­der an opinion on any question of law of public importance re­ferred to by the President.

“To us, the question of law, in essence, is whether the require­ments of due process and fair trial were complied with in the murder trial of Zulfiqar Ali Bhutto (Bhut­to), the former Prime Minister of Pakistan, by the trial court (the Lahore High Court) and the appel­late court (the Supreme Court),” maintained the opinion.

The court stated that the ref­erence provided an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of Zulfikar Ali Bhutto, under the regime of the military dictator General Zia Ul Haq.

It said that the reference was filed during the PPP govern­ment, but the successive gov­ernments of other major po­litical parties, including the interim governments, carried forward this inquiry and did not opt to withdraw the reference. “This collective interest reflects the widespread desire of the people of Pakistan to seek the opinion of this Court on wheth­er Bhutto was afforded a fair trial and due process for his tri­al for the murder of Muhammad Ahmed Khan Kasuri.”

It continued that with the able assistance of the eminent legal minds of the country, we for the reasons to be recorded later and subject to amplifications and ex­planations made therein, render an opinion on the referred ques­tions in the following terms:

Question (1) Whether the de­cision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder tri­al against Shaheed Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guar­anteed under Article 4, sub-Arti­cles (1) and (2)(a), Article 8, Ar­ticle 9, Article 10A/due process, Article 14, Article 25 of the Con­stitution? If it does not, its effect and consequences?

Opinion: (i) The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan do not meet the requirements of the Fundamental Right to a fair trial and due process enshrined in Articles 4 and 9 of the Con­stitution and later guaranteed as a separate and independent Fundamental Right under Arti­cle 10A of the Constitution. (ii) The Constitution and the law do not provide a mechanism to set aside the judgment where­by Bhutto was convicted and sentenced; the said judgment attained finality after the dis­missal of the review petition by this Court.

Question (2): Whether the conviction leading to execution of Shaheed Zulfiqar Ali Bhutto could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the princi­ple of law in terms of Article 189 of the Constitution? If not, its ef­fect and consequences?

Opinion: Referenced questions do not specify the principle of law enunciated by this Court in the Zulfiqar Ali Bhutto case re­garding which our opinion is sought. Therefore, it cannot be answered whether any principle of law enunciated in the Zulfiqar Ali Bhutto case has already been dissented to or overruled.

Questions (3) and (5): Wheth­er in the peculiar circumstances of this case awarding and main­taining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Shaheed Zulfiqar Ali Bhutto?

Whether on the basis of con­clusions arrived at and infer­ences drawn from the evidence/material in the case an order for conviction and sentence against Shaheed Zulfiqar Ali Bhutto could have been recorded?

Opinion: In its advisory juris­diction under Article 186 of the Constitution, this Court can­not reappraise the evidence and undo the decision of the case. However, in our detailed rea­sons, we shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.

Question (4): Whether the de­cision in the case of murder tri­al against Shaheed Zulfiqar Ali Bhutto fulfils the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (SAW)? If so, whether present case is covered by doctrine of repentance spe­cifically mentioned in the fol­lowing Suras of Holy Quran: (a) Sura Al-Nisa, verses 17 and 18; Sura AlBaqara, verses 159, 160 and 222; Sura AlMaida, verse 39; Sura Al-Aaraaf, verse 153; Sura Al-Nepal, verse 119; Sura Al-Taha, verse 82; as well as (b) Su­nan Ibn-e-Maaja, Chapter 171, Hadith No. 395. What are effects and consequences of doctrine – Re: Repentance

Opinion: “We were not ren­dered any assistance on this question, therefore, it would be inappropriate to render an opinion”.