ZAB murder trial lacked due process, fair trial: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Yahya Afridi on Tuesday held that the requirements of due process and fair trial were not complied with in the murder trial of Zulfikar Ali Bhutto (ZAB) by the trial court and the appellate court. The CJP issued his separate opinion as a part of the apex court nine-member bench that heard the presidential reference filed in 2021, seeking revisiting the murder of former prime minister Bhutto.

On March 6 this year, the nine-member larger bench headed by former CJP Qazi Faez Isa, while announcing its opinion in the presidential reference, had admitted that ZAB was not given the right to fair trial.

Other members of the bench were Justice Sardar Tariq Masood, Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hasan Azhar Rizvi and Justice Musarrat Hilali.

“In light of the foregoing discussion, I am of the considered opinion that the requirements of due process and fair trial were not complied with in the murder trial of Mr. Zulfiqar Ali Bhutto by the trial court and the appellate court,” the chief justice held in his 5-page opinion.

Justice Afridi agreed with the observation of Justice Syed Mansoor that certain portions of the detailed opinion of the chief justice verge on reappraisal of evidence in a case that has already been finally decided by the apex court in its adjudicatory jurisdiction, and thus, the same exceed the scope of the inquiry delineated in the short opinion that “in its advisory jurisdiction under Article 186 of the Constitution, this court cannot reappraise the evidence and undo the decision of the case”.

“I fully concur with the observations given in paragraphs No. 23 to 25, 31, 58 to 64 and 67 to 76 of the detailed opinion rendered by the [former] chief justice, as well as paragraph No. 8 of the note authored by Justice Syed Mansoor Ali Shah, which highlight the violations of procedural due process and fair trial requirements,” the chief justice added.

“I also record my concurrence, for the reasons given therein, with the view of Justice Syed Hasan Azhar Rizvi that the observation of the chief justice – that Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code of Criminal Procedure 1898 do not permit the high court to conduct a murder trial – is untenable, as it is founded on a misconception of these provisions,” the CJP noted

Justice Afridi further agreed with the opinion of Justice Rizvi that Chapter XXVII of the Code of Criminal Procedure 1898 does not extend to death sentences passed by the high court in the exercise of its original criminal jurisdiction.

“Consequently, I respectfully differ from the view of the chief justice [Faez Isa] that these provisions necessitate confirmation of such sentences or lead to the forfeiture of the right of appeal, as such an interpretation is contrary to the established legal framework,” the CJP held.

He noted that this reference might never have come before them but for the events recounted and the facts disclosed in the interview and autobiography of Justice Nasim Hasan Shah.

“Accordingly, it is both relevant and necessary to address certain aspects of that interview and autobiography, which raise significant concerns regarding the due process and fairness of the trial of Mr. Zulfiqar Ali Bhutto, as discussed in the following paragraphs,” he noted.

The CJP further noted that Justice Nasim Hasan Shah revealed certain facts in his autobiography ‘Memoirs and Reflections’, which suggest that his inclusion in the Bench for the purpose of hearing the ZAB appeal was orchestrated by the Attorney General Sharifuddin Pirzada and Justice Maulvi Mushtaq Hussain.

“Such manipulation of the Bench composition undermines judicial impartiality and raises serious concerns about the fairness of the proceedings,” the CJP held, adding that it also shows that Justice Maulvi Mushtaq pursued the matter zealously even after the high court had decided the case and the appeal was pending before the Supreme Court, despite his role having concluded with the decision of the high court.

“This unwarranted involvement after conviction blurred the boundaries of judicial propriety and further eroded confidence in the impartiality of the appellate process,” the CJP held, adding that the above account of events effectively undermines the duly expected impartiality of judicial decision-making in the ZAB trial. Such events, if left unaddressed, risk eroding public confidence in the fairness of the judicial process.