After former director general of the Federal Security Force (FSF), Masood Mahmood, broke down and confessed to having committed the murder of Nawab Mahmood Ahmad Kasuri, the prosecution branch was asked to prepare a case for legal proceedings. An eminent lawyer from Lahore, M. Anwar, was approached by the government to take up the case for prosecution. After meticulously going through the initial investigation papers and the evidence, he agreed.

The martial law authorities contemplated a few options for pursuing the case. Since the matter pertained to a former prime minister who had been toppled by General Ziaul Haq, the prosecution approached the Chief Martial Law Administrator (CMLA) for instructions, who took it to his inner cabinet.

Since Gen Zia did not want to leave anything to chance, he became overzealous about a speedy trial and a quick conviction. But while weighing all options, the most important factor to consider for the prosecution was backlash: in the absence of weak evidence, if the prosecution failed to prove the charges levelled, there were going to be serious repercussions.

With Bhutto incarcerated, two judges hearing the appeals case retire. The writing was on the wall: the deposed prime minister’s death sentence would be upheld

Some of Gen Zia’s advisers suggested that the case be prosecuted in a military court, but the idea was swiftly dropped as some saner elements in Gen Zia’s close circle of courtiers warned him about possible retaliation by the public, the PPP claiming that the trial was not fair, or even allegations that some prejudiced military official punished Bhutto out of vengeance.

Another option was to send the case to a civil court and make a plea for quick trial — this proposal was dropped too on the pretext that Bhutto and FSF officials might evade punishment. Finally, the case papers were taken to the CMLA.

Gen Zia was of the opinion that the evidence gathered should be such that a conviction could be handed down. He saw a major weak point: the evidence of Masood Mahmood, who had claimed that he received direct orders from the deposed prime minister. The General was initially not in favour of turning him into an approver on the pledge that he would not be convicted if he told the entire story. But eventually, the CMLA reluctantly agreed to the proposal. And subsequently, the Lahore High Court (LHC) sentenced Zulfikar Ali Bhutto and four FSF officials to death.

But during court proceedings, the prosecution faced a number of obstacles — the toughest was the defence’s strategy of prolonging the case for one reason or the other, perhaps to look for other options. Yahya Bakhtiar and other defence lawyers sought many adjournments, which naturally delayed the case. After five months, the court announced its verdict and Bhutto and the others headed to the Supreme Court (SC) for an appeal. The hearing in the appeal began on March 18, 1978.

On June 14, Benazir Bhutto was released after the Sindh High Court termed her detention illegal. She first met her father, whose appeal against the LHC verdict was being heard by the SC. This was a very crucial stage in the case proceedings, as on June 28, Bhutto filed an application in the SC claiming that Chief Justice of Pakistan (CJP) Justice Anwarul Haq was not impartial in the hearing of the appeal.

But during court proceedings, the prosecution faced a number of obstacles — the toughest was the defence’s strategy of prolonging the case for one reason or the other, perhaps to look for other options. Yahya Bakhtiar and other defence lawyers sought many adjournments, which naturally delayed the case. After five months, the court announced its verdict and Bhutto and the others headed to the Supreme Court (SC) for an appeal.

On July 3, the CJP handed a simple decision on the application, in which he rejected the appellant’s claim. The verdict said that the appellant’s claim was based on a report published by an Indonesian newspaper. It said that after the application, the CJP read the report again and found that there was nothing in it to dispute his neutrality. He reiterated his belief that a decision on the appellant’s appeal would be made purely on merit.

The proceedings of the appeal continued during which defence lawyer Yahya Bakhtiar read out all statements of the prosecution witnesses. At the outset, it was seen that the defence team was conducting proceedings in such a manner that the appeals process slowed down. During the hearing, Justice Qaisar Khan retired on July 30, leaving the appeal to be heard by the eight other judges.

On Aug 1, 1978, when hearing of the appeals resumed, defence lawyer Yahya Bakhtiar complained to the court that his client was not getting access to his personal doctor, which in turn was causing his client’s health to fail at a faster pace. Bakhtiar also requested that Bhutto be given the facility of his personal doctor, and that he be treated in a hospital rather than in a condemned prisoner’s cell.

The court ordered the formation of a medical board, comprising four doctors and including Bhutto’s personal doctor. The board visited Bhutto and reported on Aug 4 that Bhutto was in a satisfactory condition. As the proceedings of the case continued, the defence continued to seek adjournments and delayed proceedings.

After two long months, on Aug 20, Bakhtiar completed his arguments. During proceedings, he had been insisting on points such as claiming the partiality of the CJP — charges refuted time and again by the SC. Bakhtiar’s thrust was that the case had been politically motivated and thus he feared a biased decision.

In turn, Justice Anwarul Haq said that he had no enmity with the appellant. At one stage, the CJP also observed that perhaps the defence was not prepared to follow the case seriously. On many occasions, he also instructed Bakhtiar to focus on the merits of the case as irrelevant arguments would only prolong the hearing.

The proceedings continued for about 18 weeks, but then another delay struck the case: Justice Waheeduddin Ahmad, who was suffering from hypertension and diabetes, suffered an attack which damaged his eyesight and speech, rendering him physically unable to continue hearing the case.

The hearing of the appeal was stopped till a medical board examined the judge. The board concluded that the judge was in no state to work, reducing the bench to seven judges after Nov 20, 1978. The hearing was thus postponed for some time to allow Justice Waheeduddin Ahmad some time to recover, but when the SC reconvened on Dec 4, 1978, the medical board said that he could not possibly continue since his various faculties had been damaged.

The next day, the remaining seven judges reviewed the position and decided that hearing of the appeal would be carried out by them. When the verdict was delivered, many lawyers believed that had the two judges not left the bench, the verdict handed down might have been a different one.

shaikhaziz38@gmail.com

Published in Dawn, Sunday Magazine, November 16th, 2014