ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa, hearing a presidential reference seeking the court’s opinion on revisiting the death penalty awarded to Zulfikar Ali Bhutto, has wondered how a high court judge can dictate a Supreme Court judge to be part of a bench to decide appeal against his verdict.

Heading a nine-judge SC bench that had taken up the reference, CJP Isa described as “inappropriate” the conduct of then Lahore High Court chief justice Mushtaq Hussain to approach and ask the then Justice Dr Nasim Hasan Shah to sit in the SC bench hearing the challenge to his order of awarding death to ex-PM and PPP founder Bhutto in 1979.

The fact was more damaging than sitting as an ad hoc judge on the bench, the chief justice observed. “I find this amazing,” he remarked.

The observation came when one of the amici curiae, Salahuddin Ahmed, cited Memoirs and Reflection — a book by Justice Dr Nasim Hasan Shah — to highlight how the then LHC CJ Mushtaq Hussain along with then Attorney General for Pakistan Sharifuddin Pirzada came to see the author and asked him to sit in SC bench against his judgement of death sentence.

Amicus curiae refers to Justice Nasim Hasan’s book, interview to make ground for setting aside LHC verdict

The nine-judge bench had recently taken up the reference filed in April 2011 on behalf of ex-president Asif Ali Zardari, to seek an opinion on revisiting the death sentence in Bhutto case under the Supreme Court’s advisory jurisdiction.

In March 1979, nearly two years after the Bhutto government’s ouster by military dictator Gen Ziaul Haq, a seven-judge SC bench in a split verdict by four to three upheld the LHC verdict of death sentence to ex-PM Bhutto.

The amicus curiae reminded CJP Isa-led bench that even if Justice Mushtaq had visited Dr Shah with a request not to be part of the SC bench hearing Bhutto’s appeal, it was his judicial duty to disclose the same to all other judges of the seven-member bench as well as the defence counsel particularly when Dr Shah was hearing application on the ‘bias’ of Justice Mushtaq and when 90 paragraphs were devoted to the ‘bias’ in the judgement that rejected the application against bias.

This alone could be an independent ground for setting aside the LHC verdict, the lawyer argued.

‘Hearsay?’

At this, Justice Sardar Tariq Masood wondered should we not call this confession as hearsay evidence unless Justice Mushtaq also confirmed the allegations. The counsel, however, said it was not hearsay.

Justice Musarrat Hilali wondered whether this meeting was meant to convey the message of someone else. Why an SC judge would explain his position to the chief justice of a province, she noted. “This means he had conveyed message of someone else,” Justice Hilali remarked.

This could be a reasonable conclusion, the amicus curiae said, adding he only intended to highlight the personal interest of Justice Mushtaq on the matter.

Another aspect from the memoirs was the negotiations conducted by him to reduce the sentence from death to life term, he reminded, adding Dr Shah had admitted in his book he and then CJP Anwarul Haq made personal efforts in this regard.

Now the SC, in the case at hand, has to apply a legal test by considering what conclusion a reasonable observer would draw as to the safety of the judicial proceedings after these revelations, he said.

The verdict should always be unanimous in case of awarding death sentence and the only permissible part of negotiation between judges should be about details of the case since the political impact of the case was “not a judicial rather extraneous consideration”, he said.

The counsel then referred to interview of Dr Shah with journalist Iftikhar Ahmed during which the former conceded that Justice Mushtaq harboured animosity against Bhutto, therefore it was better if he had not sat on the LHC bench in the first place.

Published in Dawn, February 27th, 2024