ISLAMABAD: A retired judge who is assisting the Supreme Court in reaching answers to a presidential reference conceded on Tuesday that Lahore High Court chief justice Maulvi Mushtaq Hussain, who headed the bench which handed down the controversial death sentence to Zulfikar Ali Bhutto, had harboured bias against the former prime minister.

“Eight-year junior Justice Aslam Riaz Hussain, a close friend of then attorney general Yahya Bakhtiar and known to be not a bright judge, superseded seven judges, including Maulvi Mushtaq, when he was elevated to the LHC chief justice during the tenure of Mr Bhutto,” Justice (retd) Tariq Mehmood, who is assisting the court as amicus curiae (friend of the court) and also briefly witnessed the Bhutto trial, told an 11-judge special bench hearing the presidential reference sent to it for revisiting the murder case of the PPP founder.

“What I believe,” Justice Mehmood said, “miscarriage of justice was done when Mr Bhutto was awarded capital punishment.”

But he suggested the court to move forward in a way the US, South Africa and India had done by coining the concept of “curative judgment” through a special law to rectify historic wrongs.

“I also have a complaint against the present government which failed to come up with a similar legislation over the past three years,” he said.

Barrister Aitzaz Ahsan, who is also witness to the entire court proceedings in the Bhutto case, said the trial was very hostile.

“We are hearing things which we never heard before,” Chief Justice Iftikhar Muhammad Chaudhry, who heads the special bench, observed. He hinted that the court might request Prime Minister Yousuf Raza Gilani to come and watch the proceedings.

“Thank God there is a democratic dispensation and parliament is working independently,” the chief justice observed.

Dr Babar Awan, who is representing President Asif Zardari in the reference, said it was a coincidence that he had a telephonic conversation with the prime minister during which he expressed a desire to watch the court proceedings.

The chief justice asked Mr Awan if there was “something personal” between Mr Bhutto and Justice Maulvi Mushtaq, saying Mr Bhutto had also used guarded language against the latter.

The chief justice ordered Law Secretary Masood Chistie to produce the notification approving the leave application of Justice Maulvi Mushtaq, who went to Switzerland and spent two years after he had been superseded, but returned immediately after General Ziaul Haq imposed martial law in 1977.

The court also asked Punjab's Advocate General Khwaja Haris to procure the relevant record of Lahore's Ichhra police station which had consigned to record investigations against Mr Bhutto in 1975, but started re-investigations in 1977.

“Investigations are always consigned to record when no further evidence is available,” the chief justice observed. He asked Dr Awan to make a proper formulation of his case to establish bias against Mr Bhutto.

Khwaja Haris assured the court that he would try to provide the relevant record by Wednesday and said he would also request the provincial government to make public, if it had not been done so, a report of the Justice (retd) Shafiur Rehman Commission, set up by the then Punjab government on the complaint of Ahmed Raza Kasuri.

On Nov 11, 1974, an FIR was lodged at the Ichhra police station after the assassination of Nawab Mohammad Ahmed Khan Kasuri implicating former prime minister Zulfikar Ali Bhutto for conspiracy to murder his political opponent Ahmad Raza Kasuri, under Sections 120-B, 302, 109, 301 and 307 of the Pakistan Penal Code. Ahmad Raza Kasuri, son of the deceased, claimed in the FIR that he was the actual target.

The court asked the amici curiae to study the complete record which had come up for the first time and suggest whether the trial was fairly conducted and what procedure should the Supreme Court follow.

Babar Awan said Mr Bhutto had died in custody much before he was hanged and alleged that it was a case of custodial assassination. He regretted that the high court had kept pending an application of Mr Bhutto to be decided after the trial in which he had expressed his apprehensions of an unfair trial by the court.

Mr Awan also read out different applications and letters written by Mr Bhutto like that of Oct 5, 1977, challenging the maintainability of the trial; another on the same date highlighting bias of Justice Maulvi Mushtaq; Nov 5, 1977, expressing that he had no expectation of a fair trial; Feb 25, 1978, letter to the then Punjab governor requesting him to transfer the case to another bench.

Justice Jawwad S. Khawaja observed that independence of judiciary meant weak judges should not be appointed because they could easily succumb to pressure.

Justice Javed Iqbal said the time had gone when judges could be pressured to follow the dictates of rulers.