In a detailed 48-page opinion on the murder reference, the SC highlighted serious flaws in the judicial proceedings of the time.
The apex court noted that the trial court, which had tried and convicted Mr. Bhutto, and the appellate court, which had dismissed his appeal, were operating when there was no constitutional rule in the country “and one man’s will (and whim) became legislation and his person had replaced the entire democratic order”.
“Unfortunately, the chief martial law administrator was adulated in another case. He was stated to have ‘stepped in to save the country.’ The expression of such incredulous admiration undermined the credibility of the appellate court,” the opinion read.
The larger bench of the apex court, led by CJP Qazi Faez Isa, has already unequivocally stated in a previous short order that the former premier did not receive a fair trial in the murder case.
The detailed opinion further asserted it was obvious General Ziaul Haq stood to benefit directly from a guilty verdict as Mr Bhutto’s acquittal might have led to the military dictator’s prosecution for high treason. Therefore, the military dictator’s survival depended on Mr Bhutto being found guilty, ensuring the continuation of usurped power required the ex-PM to be convicted.
“Admittedly, the trial was conducted and the appeal heard without Mr Bhutto having the constitutional protection of the Fundamental Rights and other rights guaranteed in the Constitution. Any single one of the aforesaid noted transgressions may have vitiated the trial and the conviction, however, cumulatively they destroyed any semblance of due process and fair trial and revealed that innocent men were rushed to the gallows. The court said that the trial and appellate courts, which conducted the trial and heard the appeal, were not true courts under the Constitution. “The country was captive to martial law and so too were its courts. When judges declare allegiance to dictators, the courts are no longer of the people.”
The SC also criticized the portrayal of General Ziaul Haq’s unconstitutional acts as a popular mandate, stating, “It was not at all necessary, nor desirable, to state how popular he was. It was not for the Supreme Court to measure populism, nor what it entailed.”
Addressing bias in the proceedings, the SC highlighted irregularities involving Justice Mushtaq Hussain, noting, “Transferring the trial to the high court, taking away the pending complaint case from the division bench of the high court and fixing it before the trial court, which he headed, was extraordinary. The law was not followed and settled methodology departed from.”
The top court also observed, “Bias was evident in several paragraphs of the trial court judgment. Gratis observations were made which had nothing to do with the case before the court, whether Mr. Bhutto had conspired to order the assassination of extraneous paragraphs were written to dishonor and disgrace Mr Bhutto by five hon’ble judges.”
The court noted that the former premier had repeatedly claimed that Justice Mushtaq Hussain, who was the acting chief justice – later chief justice – of the Lahore High Court, was prejudiced against him and was motivated by bias, and that he should not conduct the trial, let alone head the bench conducting the trial. However, this objection was cast aside by the court.
The detailed opinion stated that the mere allegation or apprehension of prejudice or bias is not sufficient to sustain it, adding that there must be something tangible and credible that exhibits bias.
However, where there is bias it corrodes impartiality, and impartiality is necessary for correct decision-making and also to engender the acceptance of decisions.
“It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done,” it added