2025 PLD 737 SUPREME-COURT

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VS arts. 4,9, 10a, 66(1) & 186---Penal Code (XLV of 1860), Ss. 302, 307, 120B & 109---Criminal Procedure Code (V of 1898), S. 376---Reference by the President under article 186 of the Constitution to revisit the cases of Zulfiqar ali Bhutto (former Prime Minister of Pakistan) reported as Zulfikar ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Murder trial of Zulfiqar ali Bhutto (“Mr. Bhutto”) by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial not met---Legal heirs of deceaseddid not object to or challenge closure of (initial) investigation by the Magistrate---Investigation was reopened andtransferred to Federal Investgation agency (FIa) immediately after General Zia-ul-Haq's coup d'etat overthrowing Mr. Bhutto's government---Significantly, no judicial order was issued directing that the investigation be reopened or the crime reinvestigated by the FIa---In the post coup investigation interim investigation report (challan) was submitted, and in addition to section 302 (murder) of the Pakistan Penal Code, 1860 ('P.P.C.') and section 307 (attempt to murder) mentioned in the FIR, sections 120B (criminal conspiracy to commit an offence) and 109 (abetment of an offence) were added---acting Chief Justice ('aCJ') of the Lahore High Court transferred the case to the Lahore High Court for trial despite the fact that the Sessions Judge, Lahore had already taken cognizance of the case---This was done by the 'aCJ' without issuing notices to Mr. Bhutto and to the other accused, without providing them an opportunity of a hearing and without enabling them to acquire legal representation---Mr. Bhutto had appointed General Zia-ul-Haq as the army Chief who by his actions of 5 July 1977 (i.e. coup d'état) had clearly violated article 6 of the Constitution and committed the offence of high treason, the prescribed punishment for which is imprisonment for life or death---General Zia, therefore had a motive to proceed against Mr. Bhutto, because had he not done so, Mr. Bhutto may have proceeded against him for committing high treason---By conducting the murder trial itself, the High Court made redundant a number of provisions of the Constitution and Chapter XXVII of the Code of Criminal Procedure, 1898 (“the Code”)---Section 376 of the Code requiring the confirmation of death sentences was violated and this inalienable right was contravened---Since the trial was conducted by the High Court itself, Mr. Bhutto and the other accused were deprived of one right of appeal, which articles 4(1) and 9 of the Constitution guaranteed---Foremost basis for the conviction of Mr. Bhutto was the testimony of an accused, who turned approver, namely, the then Director-General of the Federal Security Force ('FSF')---after the coup d'etat of 5 July 1977 approver was arrested, nominated as an accused and pleaded that he would make disclosure of the crime, provided he was pardoned---His plea was accepted and he was made an approver---Crime was committed three years earlier and approver's conscience remained dormant and only awoke when he was arrested---approver's credibility was accepted and he was believed without demur by the Trial and appellate Courts---However, there were a number of factors which prudence should have alerted and shown that he was self-serving, self-preserving, morally bankrupt, and a false witness---Furthermore, confessions must be voluntary and must not have been obtained by fear of prejudice or hope or advantage---If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary---With regard to the three offences attracting death sentences, section 302, P.P.C. (murder), section 307 PPC (attempted murder) and section 111, P.P.C. (abetment), there was no direct or circumstantial evidence against Mr. Bhutto---Spent bullet casings, ejected from the firearm(s) that were used in the attack, didnot match any of the weapons in use of the FSF---Trial Court proceeded on an incorrect assumption that the motive stood established, even though the facts did not suggest this---Proceedings of the National assembly were also relied upon by the Courts for establishing motive, which was not permissible [article 66(1) of the Constitution]---Mr. Bhutto's enmity with the complainant was cited by the complainant as the motive, however, it was not even considered that such enmity could equally be a reason to falsely implicate Mr. Bhutto---First reporting of the crime to the police was by complainant's brother, however, the FIR was not registered when he reported the crime, nor was he cited as the informant/complainant in the FIR when it was registered---Surprisingly, complainant's brother was also not produced as a witness---all the six co-accused were arrested after General Zia's coup d'etat and the imposition of Martial Law, and all of them had confessed to the crime---This remarkable coincidence was not considered by the Trial Court or the appellate Court to be unusual nor was it ever considered whether these confessions could have been induced---Two of the accused were pardoned and made approvers---acting Chief Justice, who headed the Bench of the Lahore High Court which had convicted Mr. Bhutto, and the Chief Justice of the Supreme Court who headed the Bench which had upheld the conviction, both assumed their offices in somewhat unusual circumstances giving rise to justifiable misgivings---Bias was on display in a number of paragraphs of the Trial Court's (High Court's) judgment---Gratis observations were made which had absolutely nothing to do with the case before the Court---Manner in which the trial was conducted was antithetical to a fair trial and due process---Trial Court (High Court), which had tried and convicted Mr. Bhutto, and the appellate Court (Supreme Court), which had dismissed his appeal, were operating when there was no constitutional rule in the country and one man's (General Zia-ul-Haq's) will and whim became legislation and his person had replaced the entire democratic order----Major constitutional and legal lapses that had occurred during the trial, appeal and review stage with respect to requirements of fair trial and due process stated.

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