AT PENPOINT
The decision by the Supreme Court in the review petition on Zulfikar Ali Bhutto’s case is not likely to become a precedent, just as the original Supreme Court decision, while blazing a trail, has never been quoted before as a precedent. Compared to that judgement, the Supreme Court has been conservative in its decision in the sense that it has made no departure from the past, has enunciated no new doctrine, but has relied on good old-fashioned legal principles.
The decision might indicate that there is something wrong with the death penalty. After all, if Bhutto had not been executed, he would have been 96, but perhaps he would have still moved for a retrial on the basis of that judgement (or maybe the Supreme Court would have ordered one anyhow), and probably been acquitted. His execution was on the basis of a 4-3 decision on his appeal, which was followed by a separate 4-3 decision on the sentence. In other cases, if there is even one judge holding out for an acquittal, the death sentence is never given. Even where there is unanimity in favour of conviction, even one dissent on the death sentence is enough to get the sentence converted to one of life imprisonment. A life sentence is one of 25 years, which is actually one of 14 years, after factoring in remissions, and would have meant that Bhutto, convicted in 1978, would have been released in 1992. At that time, he would not yet have been 70. It seems that justice has truly been denied by the delay.
Perhaps the real reason why this decision will set no precedents is that no relief has emanated from it. The execution took place, and that too a long while ago. There is no reduction in any sentence, There has been no reversal of any mutation, or of any possession, as generally occurs in civil matters.
There has been a certain sense of vindication in PPP circles, the most visible expression of which was the passing of resolutions by the Punjab and Sindh Assemblies of resolutions calling for Butto to be designated a martyr. As he is already called that by PPP supporters, who refer to him as ‘Chairman Shaheed’ (his daughter being ‘Bibi Shaheed’), it is not clear how this will have any effect. Already, the title is used in, for example, the Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology, with six campuses in Karachi, Islamabad, Larkana, Hyderabad, Dubai and Gharo, did not wait for any court decision or assembly resolution to declare him a Shaheed, and the Sindh Assembly did not hesitate to use the word when passing the required Act.
However, the fact is that he is no more. Further, the harsh reality is that he would probably not have been alive today. Such contemporaries as Mumtaz Bhutto (2021, 87) and Mustafa Jatoi (2009, 78) have passed away at great ages.
From the point of view of normalcy of procedure, Bhutto was executed very quickly. The final decision was delivered on 24 March 1979, and he was executed on 4 April 1979. Now that the Qisas and Diyat law is followed, longer intervals ensue, as families pursue victims’ heirs, and attempt to get them to forgive the wrongdoer, for a due consideration. Even at the time, this execution was so speedy as to smack of haste.
It should not be forgotten that while judges sedulously exclude transient popular opinion from their judgements, preferring to be right rather than popular, it is the public opinion, in its inchoate fashion, which decides whether justice has been done. Was justice done in 1979? Or in 2024?
The Supreme Court decision was based on a very solid basis, and merely confirmed what is already a consensus in society as a whole, not just legal circles: Bhutto did not get a fair trial; due process was not observed. One of the aspects of the trial criticised was that the original trial was conducted by the Lahore High Court, and thus one stage of appeal was eliminated. While the original trial should have been conducted by a sessions court, so that one appeal lay to the high court, and then to the Supreme Court.
The conviction also went against settled precedents, that one could not be sentenced to death on the evidence of an approver. It might be mentioned that Mr Bhutto was not accused of having fired the fatal bullet, or been present on the scene, but of having instructed that the murder be carried out. The evidence of that instruction was given by Federal Security Force Director-General Masood Mahmood, who followed the instruction but turned approver.
The immediate application is to the recent conviction of former PM Imran Khan in the cipher case, which was on the basis of the confessional statement of then Secretary to PM Azam Khan. Also, the attempt to find a Masood Mahmood might come to an end. There was much pressure applied on Ahad Cheema to turn approver against Mian Shehbaz Sharif as Punjab CM, just as there was severe pressure on Fawad Hassan Fawad to turn approver against Mian Nawaz Sharif, but their refusal ended their careers. At the same time, the evidentiary value of approvers may not be denied entirely. To that extent, a new judicial doctrine seems to be emerging.
It is possible to see lawyers in future quoting this judgement in future when arguing that due process was not followed in their client’s case. For that reason alone, it is not just a welcome judgement, but a useful addition to the country’s jurisprudence. However, there is also a danger because of that.
The danger is that the Supreme Court will find itself made to revisit other judgements. That can be avoided for now, but will it be possible in future? The decisions during the Musharraf Martial Law are all up for review, as are many decisions made since. Even the Bhutto case decision can be revisited again. Then there are the decisions like that upholding the Election Commission of the ‘bat’ symbol from the PTI.
The PTI is particularly liable to take this route because so many of its present leadership belong to the legal profession, and thus for whom litigation is a default position. However, is the same sort of catharsis to be made available to the country as was afforded by this case? There are two backdoor entries opening to things which the Supreme Court has long decried: politics, and the reopening of settled issues.
First of all, it has to be conceded that the case was political. Very few people are concerned with whether Bhutto got due process or not. Supporters feel that he was railroaded; opponents feel he got his just deserts. Because the intensity has gone out of the feeling, especially that against him, the judgement has become possible without any public demonstrations.
Then, even if he got an unfair deal, he was executed. Impugning the verdict against him cannot change that. One result of the verdict is the FIR against him registered back in 1972 moves back to being an unsolved crime.
Are we moving towards a greater accountability of the judiciary, or at least of its judgements? If responsibility for a crime was fixed in a manifestly unfair manner, can it really be said to be solved? Has the Supreme Court acted too late in saying what has been said frequently and widely enough so that it was not really very adventurous of the Court to join in?
If a Bench today might say that a previous Bench was wrong, could some future bench take the same view of this Bench’s decision? Or does this verdict, like the previous one, end up in the court of public opinion?
It should not be forgotten that while judges sedulously exclude transient popular opinion from their judgements, preferring to be right rather than popular, it is the public opinion, in its inchoate fashion, which decides whether justice has been done. Was justice done in 1979? Or in 2024?
