Pakistan’s judicial history is stained by recurrent instances of unconstitutional and unlawful judgments handed down by the Supreme Court.
Consequently, in global judiciary rankings, Pakistan consistently finds itself placed between 125 and 130. This awareness is not absent within the Pakistani judiciary. Despite acknowledging this reality, the unfortunate trend persists, with each passing era witnessing the emergence of new and unique inappropriate judgments.
It’s not that the Supreme Court is immune to embarrassment. During the hearing of former Chief Justice Iftikhar Chaudhry’s case, when Justice Khalil Ramday was cited as an example in Maulvi Tameez-ud-Din’s case, and Justice Munir was mentioned, Justice Khalil Rahman Ramday remarked, “For God’s sake, don’t bring up Maulvi Tameez-ud-Din’s case; it has become a stigma for us.”
Pakistan’s history has unfolded across many decades, but the cycle continues. Now, a new scenario is emerging.
Justice Faez Isa is not just a new kind of Chief Justice in Pakistan’s history; it is more apt to describe him as a distinctive Chief Justice. He carries not only his present but also his past with him. Justice Isa keenly acknowledges that his position entails not only governmental duties but also comes with expectations shaped by his personal beliefs, role, and familial background.
Pakistan’s history has unfolded across many decades, but the cycle continues.
In the coming weeks or months, the Pakistani judiciary is poised to once again capture the limelight as Chief Justice Qazi Faez Isa takes a significant step-scheduling the case of former Prime Minister Zulfikar Ali Bhutto for regular hearing after 11 years.
During a public address, Justice Isa commented on the case, expressing how the confession by the learned judge Nasim Hasan Shah brought tears to his eyes, revealing the pressure Shah was under when deciding the case.
It appears that Justice Isa is determined to erase the dried ink surrounding Bhutto’s hanging, aiming to clear the lingering stigma on the face of the Supreme Judiciary in Pakistan.
Under the leadership of Chief Justice of Pakistan Justice Qazi Faez Isa, a nine-member larger bench of the Supreme Court is set to conduct the hearing on Zulfikar Ali Bhutto’s case on December 12 on the basis of presidential reference filed by former President Asif Ali Zardari in the Supreme Court in April 2011.
So far, there have been six hearings in the Supreme Court regarding the presidential reference related to Zulfikar Bhutto. The first hearing on the presidential reference took place on January 2, 2012, while the last hearing occurred on November 12, 2012.
The initial five hearings on the presidential reference were conducted under the leadership of former Chief Justice Iftikhar Chaudhry by the 11-member larger bench of the Supreme Court.
The final hearing on the presidential reference was conducted by the 9-member larger bench.
Zulfikar Ali Bhutto received a death sentence from a Lahore High Court bench led by Chief Justice Maulvi Mushtaq Husain. The intriguing question arises: What fueled Maulvi Mushtaq Hussain’s animosity toward Zulfikar Ali Bhutto?
The interesting story unfolds during Bhutto’s separation from Field Marshal Ayub Khan. As Bhutto spearheaded a movement against Ayub Khan, the government, under Ayub’s leadership, arrested him. After securing bail in one case, Bhutto found himself rearrested in another. In this complex scenario, Maulvi Mushtaq Hussain, serving as a judge of the Lahore High Court, issued a notable order of blanket bail. He stated that in all past cases, bail had been granted, and in the event of any new case, recourse should be taken to the court.
At that time, Bhutto’s associates claim that when Zulfikar Ali Bhutto came to power, he was thinking of making Justice Maulvi Mushtaq Hussain the Chief Justice of the Lahore High Court because of their relationship. However, someone advised Bhutto that if Mushtaq Hussain hadn’t listened to the military ruler, he probably wouldn’t listen to Bhutto, a civilian leader. So, Bhutto ended up appointing Justice Sardar Muhammad Iqbal as the Chief Justice of the Lahore High Court. This was the same grief that he expressed in the judgment passed against Zulfikar Ali Bhutto.
After overseeing the trial and execution of Zulfiqar Ali Bhutto, Judge Maulvi Mushtaq Hussain faced an unusual twist. Nature seemed to have its own way of dealing with him. During his funeral procession, a swarm of honeybees disrupted the proceedings, leaving the Janaza abandoned on the road.
Adding to the intrigue, Chaudhry Zahoor Elahi, associated with Judge Mushtaq and the forefather of the Chaudris of Gujrat, met a tragic end. Rumoured to have received the pen used to sign Bhutto’s death sentence as a gift, Zahoor Elahi was later murdered. The attackers, terrorists linked to Al-Zulfikar, added another layer of complexity to the aftermath of the controversial trial. These events paint a mysterious picture of the consequences that unfolded after significant historical decisions.
After being sentenced by the Lahore High Court, when Zulfikar Ali Bhutto’s case reached the Supreme Court, a 9-member bench was formed, with Chief Justice of Pakistan, Justice Anwar ul Haq, presiding. Alongside him, the bench included Justice Muhammad Akram, Justice Karam Ilahi Chohan, Justice Qaisar Khan, Justice Waheed-ud-Din, Justice Durab Patel, Justice Safdar Shah, Justice Muhammad Haleem, and Justice Nasim Hasan Shah.
Interestingly, Bhutto’s lawyers fought the case in the Supreme Court not as a criminal trial but as a political one, and they continued to prolong it. During this period, Justice Qaisar Khan, a member of the bench, completed his term of service and retired. Meanwhile, Justice Waheed-ud-Din suffered a severe stroke on the days of the case hearing, affecting his vision and eloquence to the extent that he became incapable of rendering further services.
As a result, seven members remained on the bench, including Chief Justice Anwar ul Haq, along with Justice Muhammad Akram, Justice Karam Ilahi Chohan, Justice Durab Patel, Justice Safdar Shah, Justice Muhammad Haleem, and Justice Nasim Hasan Shah.
Experts believe that if the case had not been unnecessarily prolonged, and if efforts had been made to expedite the decision as a criminal trial, the outcome could have been different. After the departure of two judges from the bench, the seven-member bench became more favourable for General Zia’s military government.
After retiring from the position of Chief Justice of Pakistan, in a TV interview, Justice Nasim Hasan Shah admitted that he was under pressure while delivering the verdict in Zulfikar Ali Bhutto’s case. Following this candid admission, in 2011, during the tenure of the People’s Party government, President Asif Ali Zardari filed a reference in the Supreme Court. The purpose of this reference was to provide justice by clearing the fog of allegations against Zulfikar Ali Bhutto regarding the murder.
Despite the fact that the Supreme Court’s decisions might not reverse the harrowing moments of April 4, 1979, when Zulfikar Ali Bhutto was executed, and notwithstanding the gravity of the ongoing political and economic crises in Pakistan, Chief Justice Qazi Faez Isa is perhaps attempting to rectify a wrong judgment made by the Supreme Court. Perhaps he aims to erase the dried ink, scraping away the dry dust on the surface and illuminating the obscured aspects of the judgment. However, this may only mark the initial steps in Pakistan’s history, given the extensive list of unlawful and unconstitutional judgments issued by the judiciary-a challenge too vast for Justice Faez Isa to fully address within his limited tenure. Nevertheless, he can, at the very least, set the stage for a positive beginning.
The writer is a veteran journalist based in Islamabad. He writes on social, political, economic, defence and strategic developments across the South Asian region. He can be reached through email at zm.journalist@gmail.com