As the government machinery initiated arrangements for hanging deposed prime minister Zulfikar Ali Bhutto, Justice Ghulam Safdar Shah of the Supreme Court (SC) made a remark that returned to haunt him ... with a vengeance.
Talking to a BBC correspondent, Justice Shah pointed to the SC’s observation while rejecting the review petition that the arguments of the defence counsel, Yahya Bakhtiar, could not be disregarded by the executive while deciding the question of implementing the death sentence or not. This interview was held on March 26, 1979 — two days after the SC had rejected Bhutto’s review petition and upheld the verdict of the Lahore High Court verdict.
The SC’s observation was also mentioned by the federal Interior secretary in his summary sent to President General Ziaul Haq on April 1, 1979: “… although we have not found it possible in law to review the sentence of death on the grounds urged by Mr Yahya Bakhtiar, yet these are relevant for consideration by the executive authorities in exercise of their prerogative of mercy.”
The summary added that while such court recommendations are not binding on the executive, but in the past, such advice has always been honoured.
In his press talk, Justice Shah gave the impression that he would have accepted the argument of Bhutto’s defence team, and also remarked that other judges of the bench had the same feeling too.
The might of the state is used against a dissenting voice
This caused a stir in political and judicial circles, because judges of superior courts generally do not express their views through the press but observe the maxim that judges speak through their judgments.
The Chief Justice took notice; on March 29, he issued a statement on behalf of the SC. “The attention of the Chief Justice of Pakistan and the remaining five judges constituting the Bench which dismissed Mr Zulfikar Ali Bhutto’s review petition against the appellate judgment of the Supreme Court dated Feb 6, 1979 has been drawn to some remarks reported in the press today having been made by Mr Justice G. Safdar Shah, in relation to certain observations contained in the order made by the learned judge to the BBC correspondent and two others whom he came across while walking on a road in Islamabad.
“It is not the practice of the superior court to issue statements explaining the import of their judgment or the orders, or any observation contained therein, as they speak for themselves. Whatever Mr Justice Safdar Shah has said reflects his personal views only and he had no authority to speak on behalf of the other members of the Bench. As the remaining judges would not like to depart from this settled practice, they would refrain from making any comments on this behalf.”
This panicked Gen Zia’s team of advisers, who immediately asked the Federal Investigation Agency (FIA) to begin an inquiry against Justice Shah. He was then forced to submit a number of explanations. The aim was to hound him to such an extent that he should be maligned and discredited.
The FIA began investigating on the presumed charges that he got his job as a judge through placing fraudulent academic certificates and changed his age certificate to get an extension. A case was also filed in the Supreme Judicial Council, which after consideration on April 30, 1980, decided that a notice be issued to him by the referring authority. The Council after its initial hearing on May 13, 1980 sought a reply from him.
In his press talk, Justice Shah gave the impression that he would have accepted the argument of Bhutto’s defence team, and also remarked that other judges of the bench had the same feeling too.
The National Press Trust newspapers too began publishing baseless reports. Gen Zia began arguing that Justice Shah had committed misconduct by expressing his opinion in the press, thereby maligning the judiciary.
According to an official handout issued by the government on Nov 10, 1980, it was claimed that during the case trial of Nawab Mahmood Ahmad Kasuri’s murder in the LHC, Justice Shah had tried to influence one of the judges to extend a favour to an accused, Mian Mohammad Abbas. It was alleged that the LHC judge was asked to treat the accused lightly.
Justice Shah was also accused of misconduct and violating the oath he had taken as a judge of the SC. In the charge-sheet, Justice Shah was also accused of committing misconduct, including forgery in his education certificates.
On Oct 16, 1980, Justice Safdar Shah appeared before the Supreme Judicial Council. According to an official handout, it was claimed that he had decided to resign as a judge of the SC, rendering the proceedings against him as redundant. Justice Shah was so tightly squeezed by the authorities that after his resignation, he fled to Kabul where he spoke to the media to explain his viewpoint.
Another SC judge, Justice Naseem Hassan Shah, who had supported Chief Justice Anwarul Haq in upholding the LHC verdict, was later promoted to Chief Justice of Pakistan. After his retirement, he spoke to a journalist from an Urdu newspaper about the Bhutto case, in which he conceded that Bhutto could have escaped the gallows and his death sentence could have been reduced easily. The interview appeared on Aug 23, 1996.
Justice Naseem Hassan Shah commented on the constitution of the trial bench of the LHC, and said that Molvi Mushtaq Hussain should have avoided naming himself as a member of the trial bench to maintain the dignity of the court. Molvi Mushtaq Hussain, it was alleged, held a grudge against Bhutto, since the deposed prime minister had superseded his seniority while appointing the chief justice of the LHC.
Later, on Sept 4, 2009, Justice Naseem Hassan Shah also he said that Bhutto’s trial was nothing but a sham intended to physically eliminate him. He also said that there was immense pressure from the military dictator on the SC to uphold the LHC verdict. He also said that Gen Zia and Molvi Mushtaq Hussain both feared that Bhutto’s survival could be risky for them, and wanted him eliminated. During the PPP rule from 2008-2013, a move was initiated to reopen the Bhutto case, but considering the can of worms that would be opened along with it, it was not pushed through.
Published in Dawn, Sunday Magazine, March 1st, 2015
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