Reference 1 2011 08072024

IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
Present:
Justice Qazi Faez Isa, CJ
Justice Sardar Tariq Masood
Justice Syed Mansoor Ali Shah
Justice Yahya Afridi
Justice Amin-ud-Din Khan
Justice Jamal Khan Mandokhail
Justice Muhammad Ali Mazhar
Justice Syed Hasan Azhar Rizvi
Justice Musarrat Hilali
REFERENCE NO. 1 OF 2011

[Reference by the President of Islamic Republic of Pakistan under Article
186 of the Constitution]
In Attendance:
On behalf of the Mr. Mansoor Usman Awan,

President: Attorney-General for Pakistan assisted by
Ch. Aamir Rehman,
Additional Attorney-General,
Malik Javed Iqbal Wains,
Additional Attorney-General,
Raja M. Shafqat Abbasi,
Deputy Attorney-General and
Ms. Marium Ali Abbasi, Advocate.
On Court Notice: Mr. Khalid Ishaq, Advocate-General, Punjab,

assisted by Mr. Sanaullah Zahid, Addl. AG.
Mr. Hassan Akbar, Advocate-General, Sindh
assisted by Qazi M. Bashir, Addl. AG.
Mr. Amir Javed, Advocate-General,
Khyber Pakhtunkhwa, assisted by
Mr. Sultan Mazhar Sher Khan, Addl. AG.
Mr. Asif Reki, Advocate-General, Balochistan
assisted by Mr. M. Ayaz Swati, Addl. AG.
On behalf of the LRs of Mr. Farooq H. Naek, Sr. ASC, assisted by

the late Mr. Zulfiqar Ali Messrs Iftikhar Shah and Sheraz Shaukat
Bhutto: Rajpar, Advocates.
(representing grandson Mr. Bilawal Bhutto Zardari)
Mian Raza Rabbani, ASC, assisted by

Mr. Zeeshan Abdullah, Advocate.
(representing daughter Ms. Sanam Bhutto and
grandchildren Ms. Bakhtawar Bhutto and Ms.
Aseefa Bhutto)
Reference No. 1/2011. 2
Mr. Zahid F. Ibrahim, ASC, assisted by

Mr. Altamash Arab, Advocate.
(representing grandchildren Ms. Fatima Bhutto and
Mr. Zulfiqar Ali Bhutto)
Amicus Curiae: Mr. Manzoor Ahmad Malik,

Hon’ble former Judge,
assisted by Mr. Ansar Nawaz Mirza, ASC,
Mr. Haider Rasul Mirza, ASC and
Mr. Shahryar Riaz, Advocate High Court.
Mr. M. Makhdoom Ali Khan, Sr. ASC,

assisted by Mr. Saad Mumtaz Hashmi, ASC.
Mr. Khalid Jawed Khan, ASC.
Ch. Aitzaz Ahsan, Sr. ASC,

assisted by Ms. Zunaira Fayyaz Siwia, Adv.
and Mr. Qaiser Nawaz, Advocate.
Mr. Assadullah Khan Chamkani, ASC,

assisted by Mr. M. Tariq Khan Hoti, ASC.
Mr. Salahuddin Ahmed, ASC,

assisted by Mr. Ehsan Malik and
Mr. Aman Aftab, Advocates.
Complainant: Mr. Ahmed Raza Khan Kasuri, ASC.

(in person)
For SCBA: Mr. Ali Imran, ASC.
Dates of Hearing: 12.12.2023, 08.01.2024, 20.02.2024,

26.02.2024, 27.02.2024, 28.02.2024
and 04.03.2024.
Opinion
Qazi Faez Isa, CJ.
Background
1. The Federal Cabinet 1 headed by the Prime Minister decided
to file a reference under Article 186 of the Constitution of the
Islamic Republic of Pakistan (‘the Constitution’) ‘in respect of the
proceedings of the judicial process in the case of trial Shaheed
1 In its meeting held on 28 March 2011.

Zulfiqar Ali Bhutto, former Prime Minister’ (‘Mr. Bhutto’), and the
Prime Minister advised2 the President of Pakistan (‘the President’)
to file the reference. Resultantly, the President submitted a
reference to the Supreme Court,3 which was numbered as
Reference No. 1 of 2011 (‘the Reference’).
Seeking the Opinion of the Supreme Court

2. Article 186 of the Constitution, pursuant to which the
Reference was filed, states that:
‘186. (1) If, at any time, the President considers that it
is desirable to obtain the opinion of the Supreme Court
on any question of law which he considers of public
importance, he may refer the question to the Supreme
Court for consideration.
(2) The Supreme Court shall consider a question so

referred and report its opinion on the question to the
President.’
Questions Formulated for Opinion

3. The following questions for the opinion of the Court were
formulated:
‘1. Whether the decision of the Lahore High Court
as well as the Supreme Court of Pakistan in the
murder trial against Shaheed Zulfiqar Ali Bhutto
meets the requirements of fundamental rights as
guaranteed under Article 4, sub- Articles (1) &
(2) (a), Article 8, Article 9, Article
10A/due process, Article 14, Article 25 of the
Constitution of the Islamic Republic of Pakistan,
1973? If it does not, its effect and
consequences?
2. Whether the conviction leading to execution of

Shaheed Zulfiqar Ali Bhutto could be termed as
a decision of the Supreme Court binding on all
other courts being based upon or enunciating
the principle of law in terms of Article 189 of the
Constitution of the Islamic Republic of Pakistan,
1973? If not, its effect and consequences?
3. Whether in the peculiar circumstances of this

case awarding and maintaining of the death
2 On 1 April 2011, pursuant to entry 54 of Schedule V-B, Rule 15-A(1) of the

Rules of Business, 1973 (enacted under Articles 90 and 99 of the Constitution of
the Islamic Republic of Pakistan.
3 On 2 April 2011.
sentence was justified or it could amount to

deliberate murder keeping in view the glaring
bias against Shaheed Zulfiqar Ali Bhutto?
4. Whether the decision in the case of murder trial

against Shaheed Zulfiqar Ali Bhutto fulfills the
requirements of Islamic laws as codified in the
Holy Quran and the Sunnah of the Holy Prophet
(SAW)? If so, whether present case is covered by
doctrine of repentance specifically mentioned in
the following Suras of Holy Quran:
(a) Sura Al-Nisa: verses 17 & 18

Sura Al-Baqara: verses 159, 160 and 222
Sura Al-Maida: verse 39
Sura Al-Aaraaf: verse 153
Sura Al-Nehal verse 119
Sura Al-Taha: verse 82
as well as
(b) Sunan Ibn-e-Maaja, Chapter 171, Hadith

No. 395
What are effects and consequences of doctrine

Re: Repentance
5. Whether on the basis of conclusions arrived at

and inferences drawn from the
evidence/material in the case an order for
conviction and sentence against Shaheed
Zulfiqar Ali Bhutto could have been recorded?’
Larger Bench
4. The Supreme Court4 ordered that a larger Bench should be
constituted to hear the Reference. Resultantly a larger Bench,
comprising of the Chief Justice and eight Judges, was constituted,
and it last heard the Reference on 12 November 2012; the
Reference was not fixed in Court for eleven years. All the members
of this Court who were hearing the Reference have retired.
Rehearing of the Reference

5. The Reference was again fixed in Court for hearing on 12
December 2023. This Court noted that, ‘A number of other
presidential references, filed later under Article 186, of the
4Before a three-Member Bench, comprising of Iftikhar Muhammad Chaudhry,

CJ, Muhammad Sair Ali, J and Ghulam Rabbani, J.
Constitution, were taken up for hearing and decided by this Court, 5

but this Presidential Reference remains pending, it merits
determination as early as possible.’ It would be appropriate to
reproduce the following paragraphs from the order passed on 12
December 2023:
‘2. Learned Mr. Farooq H. Naek referred to an
application (CMA No.8622/2018) filed on behalf of Mr.
Bilawal Bhutto Zardari, the grandson of the late Mr.
Bhutto and states he wants to be represented herein.
We are informed that there is only one surviving
daughter of the late Mr. Bhutto and he has eight
grandchildren. The application is allowed and learned
Mr. Naek may represent Mr. Bilawal Bhutto Zardari
and assist this Court. If Mr. Bhutto’s daughter and
any of his grandchildren also want to be represented
they may engage counsel. Mr. Naek states that he has
also filed an application (CMA No. 10492/2023)
seeking live telecast of these proceedings, however, the
committee constituted in this regard had before filing
of the application already made requisite
arrangements and recommended that the Presidential
Reference be broadcast, and proceedings are being
broadcast,6 therefore, this application has become
infructuous and is disposed of.
3. Learned Mr. Naek refers to the report of Justice

Shafi-ur-Rehman, who was then a Judge of the Lahore
High Court, regarding the investigation into the
murder of Mr. Mohammad Ahmed Khan, the father of
the complainant, Mr. Ahmed Raza Khan Kasuri. He
requested that he be provided its copy. A Tribunal of
inquiry was constituted by the Government of Punjab
in exercise of its powers conferred by section 3 of the
West Pakistan Tribunals of Inquiry Ordinance, 1969.7
The Report of the Tribunal is dated 22 February 1975
and comprises of 30 pages, and is mentioned in the
judgment of the Lahore High Court 8 and also in the
appeal therefrom.9
4. The learned Attorney-General for Pakistan (‘AG’)

was asked whether any of the successive Presidents or
the Federal Government sought to withdraw the
Presidential Reference or wants to do so now, and the
5 (1) Reference No. 1 of 2012 filed on 7 December 2012, (2) Reference No. 1 of
2020 filed on 23 December 2020, (3) Reference No. 1 of 2022 filed on 21 March
2022 and (4) Reference No. 2 of 2022 filed on 18 October 2022.
6https://www.youtube.com/live/fnsKtf1yM78?si=Wnye57Er_IJ39zB0.
7 Notification No.SOG-III-6-309/74, dated 13 November 1974, published in the
Punjab Gazette on 11 December 1974.

8State v Zulfiqar Ali Bhutto PLD 1978 Lahore 523.
9Zulfiqar Ali Bhutto v State, PLD 1979 Supreme Court 53, p. 61, para 9.
learned AG stated that this was not done nor is this

sought to be done now.
5. Learned AG was asked to read the Presidential

Reference, which he did. He also read some of the
orders of this Court, including order dated 21 April
201110 which formulated questions for the opinion of
this Court. A number of amici curiae were appointed,
some of whom have passed away and others we are
told are indisposed. Learned Mr. Ali Ahmed Kurd, an
amicus appointed by this Court, states that he will be
rendering assistance. We are also informed that
learned Mr. Makhdoom Ali Khan, another amicus
appointed by this Court, will also be rendering
assistance. Notice had also been issued to the
Supreme Court Bar Association (‘SCBA’) and the late
Ms. Asma Jahangir represented SCBA; if SCBA want
to be represented before this Court they may nominate
a counsel to assist us. We also appoint learned Messrs
Khalid Javed Khan, Salahuddin Ahmed and Zahid F.
Ebrahim as amici curiae. Mr. Yasser Kureshi, an
academic working at Oxford University, United
Kingdom, and Ms. Reema Omer of the International
Commission of Jurists are also appointed as amici
curiae. They are appointed to particularly attend to the
constitutional and legal aspects of the matter.
6. The first and foremost constitutional and legal

points, in addition to those recorded in order dated 21
April 2011, that require consideration are:
(1) Whether the Presidential Reference is

maintainable under Article 186 of the
Constitution;
(2) Whether the Presidential Reference requires a

factual inquiry, and if so, whether under Article
186 of the Constitution an opinion can be given
in this regard;
(3) The constitutional-legal position of the trial and

appeal, and its credibility/legitimacy when the
person being tried was removed from power by a
usurper who himself assumed power and then
launched the prosecution of Mr. Bhutto in a
criminal case which was filed as ‘untraced’; and
(4) Were certain judge(s) removed from the trial

and/or hearing the appeal to secure a particular
result.
10In re: Reference No. 1 of 2011, 2011 SCMR 962.

7. If the aforesaid aspect is successfully attended

to then we will need to consider the trial and appeal
which will require expertise in criminal law and
procedure. Justice Manzoor Ahmed Malik, former
Judge of the Supreme Court, and Justice Assadullah
Khan Chamkani, a former Judge of the Peshawar High
Court, have vast experience and we want to benefit
from their knowledge in this regard, therefore, they are
appointed as amici curiae, who may either submit a
written brief and/or address us in person. We note
that learned Mr. Khawaja Haris Ahmed was the
Advocate-General, Punjab and was associated with the
Presidential Reference when it was earlier heard and is
also a criminal law expert, therefore, he is also
appointed as amicus curiae to assist with the criminal
law and procedure.
8. With regard to the criminal law aspects the

learned amici curiae may assist on the following:
(1) If, and when, can a murder trial be conducted

by the High Court, and to cite local and
international precedents;
(2) Was the murder-trial being conducted by the

High Court objected to, and if it was, how was
the objection attended to;
(3) The consequences, if any, of departing from the

usual mode of trial;
(4) The admissibility or otherwise of a confessional

statement of an approver and to what extent can
it be used against a co-accused;
(5) Was there any legal bias, and if so its effects;

and
(6) What were the facts leading to reopening the

investigation, and was it because fresh evidence
had been discovered or was it on account of the
usurper securing his position.
9. The Presidential Reference refers to an interview,

which we are told was given to Mr. Iftikhar Ahmed of
Geo television by Justice Nasim Hassan Shah, who
was on the Bench of the Supreme Court which decided
the appeal and review11. Mr. Ahmed Raza Kasuri also
refers to his application (CMA No. 5788/2011) and
states that he has filed extracts from a book written by
the same learned Judge - Constitution, Law and
11 Zulfikar Ali Bhutto v State, PLD 1979 Supreme Court 741.

Pakistan Affairs. Mr. Naek states that Justice Dorab

Patel had also given an interview about the case.
10. Office is directed to send copies of the

Presidential Reference, all orders and the Report of the
Tribunal to the learned amici curiae who may attend to
the questions noted above, in order dated 21 April
2011 and in the Presidential Reference. The learned
amici may submit their respective written opinions on
all or any of the said matters, and on any other aspect
which they consider relevant, by Friday, 5 January
2024.’
6. We heard this Reference on 8 January, 20, 26, 27 and 28

February and 4 March 2024. On 6 March 2024 we announced our
Opinion under Article 186 of the Constitution which read as
follows:
‘In the course of performing our core duty to
administer justice ‘in accordance with the Constitution
of the Islamic Republic of Pakistan and the law’, we
(judges) are bound to ‘do right to all manner of people,
according to law, without fear or favour, affection or
ill-will.’12 There have been some cases in our judicial
history that created a public perception that either fear
or favour deterred the performance of our duty to
administer justice in accordance with the law. We
must, therefore, be willing to confront our past
missteps and fallibilities with humility, in the spirit of
self-accountability, and as a testament to our
commitment to ensure that justice shall be served with
unwavering integrity and fidelity to the law. We cannot
correct ourselves and progress in the right direction
until we acknowledge our past mistakes.
2. The advisory jurisdiction, under Article 186 of

the Constitution, requires this Court to render an
opinion on any question of law of public importance
referred to by the President. To us, the question of law,
in essence, is whether the requirements of due process
and fair trial were complied with in the murder trial of
Mr. Zulfiqar Ali Bhutto (“Mr. Bhutto”), the former
Prime Minister of Pakistan, by the trial court (the
Lahore High Court) and the appellate court (the
Supreme Court). This question we approach and
answer considering whether the trial court and the
appellate court attended to and dealt with the
requirements of due process and fair trial.
12 Oath of Office for Judges of the Supreme Court and the High Courts,
prescribed under Articles 178 and 194 in the Third Schedule to the Constitution
of the Islamic Republic of Pakistan.
3. The reference filed by the President of Pakistan

has provided us an opportunity to reflect upon the
proceedings of the trial, conviction and death sentence
of Mr. Bhutto, under the regime of the military dictator
General Zia Ul Haq. The reference was filed during the
government of the political party founded by Mr.
Bhutto but the successive governments of other major
political parties carried forward this inquiry and did
not opt to withdraw the reference. This collective
interest reflects the widespread desire of the people of
Pakistan to seek the opinion of this Court on whether
Mr. Bhutto was afforded a fair trial and due process
for his trial for the murder of Mr. Muhammad Ahmed
Khan Kasuri.
4. With the able assistance of the eminent legal

minds of the country, we for the reasons to be
recorded later and subject to amplifications and
explanations made therein, render an opinion on the
referred questions in the following terms:
Question (1)
Whether the decision of the Lahore High Court as well

as the Supreme Court of Pakistan in the murder trial
against Shaheed Zulfiqar Ali Bhutto meets the
requirements of fundamental rights as guaranteed
under Article 4, sub-Articles (1) and (2)(a), Article 8,
Article 9, Article 10A/due process, Article 14, Article
25 of the Constitution of the Islamic Republic of
Pakistan, 1973? If it does not, its effect and
consequences?
Opinion
(i) The proceedings of the trial by the Lahore High

Court and of the appeal by the Supreme Court of
Pakistan do not meet the requirements of the
Fundamental Right to a fair trial and due process
enshrined in Articles 4 and 9 of the Constitution and
later guaranteed as a separate and independent
Fundamental Right under Article 10A of the
Constitution.
(ii) The Constitution and the law do not provide a

mechanism to set aside the judgment whereby Mr.
Bhutto was convicted and sentenced; the said
judgment attained finality after the dismissal of the
review petition by this Court.
Question (2)
Whether the conviction leading to execution of

Shaheed Zulfiqar Ali Bhutto could be termed as a
decision of the Supreme Court binding on all other
courts being based upon or enunciating the principle
of law in terms of Article 189 of the Constitution of the
Islamic Republic of Pakistan, 1973? If not, its effect
and consequences?
Opinion
Referenced questions do not specify the principle of

law enunciated by this Court in the Zulfiqar Ali Bhutto
case regarding which our opinion is sought. Therefore,
it cannot be answered whether any principle of law
enunciated in the Zulfiqar Ali Bhutto case has already
been dissented to or overruled.
Questions (3) and (5)
Whether in the peculiar circumstances of this case

awarding and maintaining of the death sentence was
justified or it could amount to deliberate murder
keeping in view the glaring bias against Shaheed
Zulfiqar Ali Bhutto?
Whether on the basis of conclusions arrived at and

inferences drawn from the evidence/material in the
case an order for conviction and sentence against
Shaheed Zulfiqar Ali Bhutto could have been
recorded?
Opinion
In its advisory jurisdiction under Article 186 of the

Constitution, this Court cannot reappraise the
evidence and undo the decision of the case. However,
in our detailed reasons, we shall identify the major
constitutional and legal lapses that had occurred with
respect to fair trial and due process.
Question (4)
Whether the decision in the case of murder trial

against Shaheed Zulfiqar Ali Bhutto fulfils the
requirements of Islamic laws as codified in the Holy
Quran and the Sunnah of the Holy Prophet (SAW)? If
so, whether present case is covered by doctrine of
repentance specifically mentioned in the following
Suras of Holy Quran:
(a) Sura Al-Nisa, verses 17 and 18; Sura Al-

Baqara, verses 159, 160 and 222; Sura Al-
Maida, verse 39; Sura Al-Aaraaf, verse 153;
Sura Al-Nahl, verse 119; Sura Al-Taha, verse
82; as well as (b) Sunan Ibn-e-Maaja, Chapter
171, Hadith No. 395.
What are effects and consequences of doctrine – Re:

Repentance
Opinion
We were not rendered any assistance on this question,

therefore, it would be inappropriate to render an
opinion.’
Retirement of Senior Puisne Judge Sardar Tariq Masood

7. Sardar Tariq Masood, J was the senior puisne judge when
the Reference was heard and the above opinion was rendered,
however, he retired on 10 March 2024. It is commonsensical that,
if a Judge has already signed a written opinion/short order, but
then retires, he can sign/give the detailed reasons post-retirement.
This also prevents the unnecessary wastage of public resources
and Court time, which would happen if the Bench was to be
reconstituted (after the retirement of a Judge) and the entire
matter heard again. A Supreme Court Bench comprising of
thirteen Judges13 held that Judges who had retired before signing
the detailed reasons could do so after their retirement.
Facts of the case

8. On 11 November 1974 at 12.30 am Mr. Muhammad Ahmad
Khan (‘Mr. Khan’), his wife, his wife’s sister and his son Mr.
Ahmad Raza Kasuri (‘Mr. Kasuri’) were returning home after
having attended a wedding in a car driven by Mr. Kasuri when it
was fired upon and a bullet struck Mr. Khan in the head, which
resulted in his death. The FIR14 was registered on the written
complaint of Mr. Kasuri (‘the Complainant’), who stated that he
13 Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of

Pakistan, PLD 2016 Supreme Court 61, para 206, pp. 203-4.
14 First Information Report No. 402/74 was registered at Police Station Ichhra,
Lahore on 11 November 1974 at 3.45 am under section 302 (murder, now qatl-i-
amd) and under section 307 (now section 324) – attempt to kill - of the Pakistan
Penal Code, 1860.
suspected that he (and not his father) was the intended target
because he was vociferously opposed to the government party
(Pakistan Peoples Party) of Mr. Bhutto. Attributing motive to Mr.
Bhutto, he stated that Mr. Bhutto had addressed him in the
National Assembly (of which both were members – MNAs) saying
that he (Mr. Kasuri) had exhausted his patience (‘‫)’ﺑﺮداﺷﺖ ﺳﮯ ﺑﺎﮨﺮ ﮨﻮﭼﮑﺎﮨﮯ‬
and that he (Mr. Bhutto) had said that he had had enough of Mr.
Kasuri (‘‫)’ﻣﯿﮟ اِس ﺷﺨﺺ ﺳﮯ ﺗﻨﮓ آﭼﮑﺎ ﮨﻮں‬.
Police Investigation of the Crime

9. The Police commenced its investigation 15 of the crime but the
perpetrators could not be unearthed. Therefore, the Senior
Superintendent of Police (‘SSP’) transferred the investigation to a
specialized investigation unit, that is, to the Crime Investigation
Agency (‘CIA’).16 However, the CIA also failed to trace the criminals,
and after nine and a half months submitted its report
recommending the closure of the investigation.17
Closing the Investigation

10. The Police could not make any progress in discovering those
who had committed the crime which had killed Mr. Khan. The CIA
too drew a blank. Therefore, a report was prepared by Inspector
Abdul Hameed of CIA, Lahore which was also signed on 19 March
1976 by the Deputy Superintendent of Police (‘DSP’), Ichhra Circle,
Lahore within the limits of which the crime was committed, and
on 24 April 1976 by the Superintendent of Police (‘SP’),
Cantonment, Lahore, recommending that the investigation be
closed. The Magistrate ordered the closure of the investigation on 3
May 1976. Neither Mr. Kasuri, nor the other legal heirs of the late
Mr. Khan, nor anyone else objected to the closure of the
15 The investigation commenced on 11 November 1974 by Sub Inspector Abdul

Hayee, who was the Station House Officer (SHO) of Police Station Ichhra, and
continued till 14 December 1974.
16 CIA’s Inspector Abdul Hameed took over the investigation on 15 December
1974.
17 The closure report dated 1 October 1975 was prepared and submitted under
rule 25.57 of the Police Rules, 1937, read with section 173 of the Code of
Criminal Procedure, 1898.
investigation. The Magistrate’s order closing the investigation was

never challenged.
Tribunal of Inquiry
11. The Government of Punjab appointed a Judge of the Lahore
High Court as the Tribunal 18 to inquire into:
‘NOTIFICATION
The 13th November 1974
No. SOG-III-6-309/74 - Whereas the Government of

the Punjab is of the opinion that it is necessary to
appoint a Tribunal for the purpose of making an
inquiry into the incident which took place at
Shadman-Shah Jamal Round-about, nearly four
furlongs to the north of P. S. Ichhra, Lahore on the
night between 10th and 11th November, 1974 at 12-30
a.m. (night):
Now, therefore, in exercise of the powers conferred on

him by Section 3 of the West Pakistan Tribunals of
Inquiry Ordinance, 1969 (Ordinance II of 1969), the
Governor of the Punjab is pleased to appoint Mr.
Justice Shafi-ur-Rehman, Judge, Lahore High Court
as the Tribunal.
2. The terms of reference of the Tribunal shall be-
(i) To inquire into the incident which took

place on the night between 10th and 11th
November, 1974 at Shadman-Shah Jamal
Round-about, nearly four furlongs to the
north of P. S. Ichhra, Lahore leading to the
death of Nawabzada Muhammad Ahmed
Khan, resident of 130-J, Model Town,
Lahore, father of Mr. Ahmed Raza Khan
Qasuri, MNA, in which connection FIR No.
402/74 was recorded on 11th November
1974 at P. S. Icahra, Lahore
(ii) To examine the investigations conducted

by the Police in the case and give such
directions as may be appropriate.
3. The Tribunal will finalize the inquiry and submit

his report within one month.
F. K. BANDIAL
Chief Secretary.’
18 Inquiry Tribunal comprising of Justice Shafi-ur-Rehman was constituted

under the West Pakistan Tribunals of Inquiry Ordinance, 1969 vide Notification
No.SOG-III-6-309/74, dated 13 November 1974, published in the Punjab
Gazette on 11 December 1974.
12. The Tribunal submitted Report of the Tribunal on 22

February 1975, which found that:
‘15. The only motive mentioned in the FIR
accounting for the occurrence is the affiliations and
the political activities of the complainant, Mr. Ahmed
Reza Khan Kasuri, and the extreme exasperation and
dislike for him of the Prime Minister publicly expressed
on the floor of the National Assembly. In explaining the
mention of such a motive in the FIR the complainant
made it clear that it does not necessarily mean that he
was subjected to this and the precedent attacks
directly at the bidding of the Prime Minister or that the
attack was organized by someone in Government or
Party. He said that on political differences, whatever
their nature or extent, such a public condemnation by
the Prime Minister, who happens to be, for the time
being, the repository and source of all political and
governmental powers, could prompt a die-hard, an
over enthusiastic person, or a trigger happy individual,
in the government or outside, of the party or not, to
accomplish his extermination from the scene.’
The Tribunal issued the following directions:

‘36. In short, the directions that I propose giving to
the investigating agency are the following:-
(i) A more thorough and expert examination of the

spot.
(ii) Preservation of property connected with the

crime, already recovered or recoverable from the
spot.
(iii) Expert examination of all the recovered articles

together, with a view to narrow down the class of
weapon used in the commission of the crime.
(iv) Natural witnesses to the occurrence i.e.

residents of the area, invitees at the house of
Bashir Shah, the Patrol Parties to be subjected
to more purposive interrogation particularly for
ascertaining the number of shots fired, number
of weapons used and the suspects.
(v) The surviving occupants of the car should have

been profitably interrogated on certain aspects of
the investigation.
(vi) The material witnesses in the case and the

suspects to be fully protected against physical
harm.’
However, nothing was unearthed about the perpetrator(s) of the

crime.
5 July 1977
13. The Chief of Army Staff, General Mohammad Zia-ul-Haq,
overthrew the democratic order and imposed martial law on 5 July
1977. The investigation of the murder of Mr. Khan on 11 November
1974, which was closed on 3 May 1976, was reopened on the
verbal orders of the Director of the Federal Investigation Agency
(‘FIA’).19 The prosecution never explained how and why an
investigation into a thirty-two month old case, which was closed
fourteen months earlier, was reopened. It was also not explained
how and why the investigation was transferred to the FIA. Both of
these actions (the reopening of the investigation and its transfer to
FIA) were taken immediately after General Zia-ul-Haq’s coup d’etat
overthrowing Mr. Bhutto’s government. The case was
resurrected.20
Post Coup Investigation

14. The interim investigation report (challan) was submitted on
11 September 1977.21 In addition to section 302 (murder) of the
Pakistan Penal Code, 1860 (‘PPC’) and section 307 (attempt to
murder) mentioned in the FIR were added, sections 120B (criminal
conspiracy to commit an offence) and 109 (abetment of an offence).
The following seven persons were nominated in the interim
investigation report to having conspired to murder Mr. Kasuri and
for the murder of Mr. Khan:
Mr. Bhutto, Prime Minister
(Sheikh) Masood Mahmood, Director-General FSF
Mian Muhammad Abbas, Director FSF
19 As per the testimony of Abdul Khaliq, Deputy Director FIA (PW 41).
20 The first entry in the case diary (zimni) by FIA is recorded by Abdul Khaliq,
Deputy Director FIA, on 24 July 1977, though the file of the case was received
by Inspector FIA Muhammad Boota on 8 August 1977.
21 Section 173 of the Code of Criminal Procedure, 1898.
Mr. Ghulam Hussain, Inspector FSF

Mr. Ghulam Mustafa, Inspector FSF
Mr. Arshad Iqbal, Sub Inspector FSF
(Rana) Iftikhar Ahmad, Assistant Sub Inspector FSF
However, in the final investigation report (challan) dated 18

September 1977 Masood Mahmood and Mian Muhammad Abbas
were shown as approvers.
Transfer of case to the Lahore High Court

15. A murder case under section 302 PPC can only be tried by a
Court of Session. Therefore, the investigation report, which was
submitted to the Magistrate, was forwarded to the Sessions Judge,
Lahore on 12 September 1977. After receipt of the report the trial
would have commenced. However, on the very next day (13
September 1977) the case (Criminal Original No.60/77, titled State
v Z. A. Bhutto) came up before Justice Mushtaq Hussain, the
Acting Chief Justice (‘ACJ’), who the very same day ordered that,
‘In view of submissions made in the petition the case is transferred
to this Court for trial.’ This was done despite the fact that the
Sessions Judge, Lahore had already on 12 September 1977 taken
cognizance of the case. It is inexplicable how then the case was
listed for hearing before the ACJ. Criminal Original No.60/77 is
untraceable, therefore, it cannot be ascertained what was recorded
therein, and what had necessitated its immediate fixation in the
High Court, and before Justice Mushtaq Hussain. The record
(which is available), however, shows that Justice Mushtaq Hussain
immediately and on the same day 13 September 1977 granted the
said petition, by passing the following order:
‘In view of the submissions made in the petition the
case is transferred to this Court for trial. It shall be
heard by a Full Bench consisting of
1. Myself
2. Zakiuddin Pal
3. M.S.H. Qureshi
4. Sheikh Aftab Hussain and
5. Malik Gulbaz Khan, JJ.
To be heard on 24.9.1977.
Maulvi Mushtaq Hussain

ACTING CHIEF JUSTICE’
Commencement of the Trial

16. On 24 September 1977 the trial of Mr. Bhutto and of the
other co-accused commenced. The High Court ordered that the
evidence be summoned, however, even though the accused were
present in Court, the charge was not framed against them. The
charge was also not framed on the next date, that is, on 3 October
1977. Framing of charge is a mandatory requirement,22 and only
after it is framed can a trial commence. The charge was finally
framed on 11 October 1977 when all the accused pleaded not
guilty. From 11 October 1977 to 25 February 1978 the High Court
(acting as the Trial Court) recorded the statements of forty-one
prosecution witnesses (PWs) and of four defence witnesses (DWs).
On 2 March 1978 judgment was reserved and it was announced on
18 March 1978. Mr. Bhutto was convicted for the following
offences of the PPC: (a) section 120-B and sentenced to five years
rigorous imprisonment, (b) section 302 read with sections 301 and
111 and sentenced to death and (c) under section 307 read with
section 109 and sentenced to seven years rigorous imprisonment
for each offence.
Appeal and Review

17. Mr. Bhutto appealed his conviction before the Supreme
Court,23 but his appeal was dismissed on 6 February 1979 by a
majority of four to three.24 A review petition25 seeking review of the
Judgment dismissing Mr. Bhutto’s criminal appeal was filed, but it
was unanimously dismissed on 24 March 1979.
22 Section 265-D of the Code of Criminal Procedure, 1898.

23 Criminal Appeal No. 11 of 1978.
24 S. Anwarul Haq, CJ, Muhammad Akram, Karam Elahi Chauhan and Nasim
Hassan Shah, JJ, dismissing the appeal, while Dorab Patel, Muhammad Haleem
and G. Safdar Shah, JJ, allowing it.
25 Review Petition No. 5/R of 1979.
Death Warrant and Execution

18. Mr. Bhutto’s ‘Warrant of Execution on Sentence of Death’ (‘the
death warrant’) was signed by Mushtaq Hussain, J, who by now
had become the Chief Justice of the Lahore High Court. The death
warrant concluded in the following words: ‘Given under my hand
and the seal of the Court this 25th day of March 1979’, and it
directed the Superintendent District Jail at Rawalpindi to execute
the sentence on ‘the Second day of April 1979’. The execution date
was later changed to ‘the Fourth day of April 1979’. Mr. Bhutto was
executed and the Superintendent District Jail Rawalpindi issued a
certificate stating that he was ‘hanged by the neck till he was dead
at Rawalpindi on Wednesday the 4th day of April, 1979; that the
body remained suspended for a full hour and was not taken down
until life was ascertained by a medical officer to be extinct…’.
The Constitutional scope of this matter

19. We want to clarify, and emphasize, that we are not hearing a
petition, an appeal or a review petition. Neither the Constitution
nor the law provides a mechanism whereby Mr. Bhutto’s conviction
could be set aside. Mr. Bhutto’s conviction attained finality after
the dismissal of the review petition by the Supreme Court. In our
advisory jurisdiction, under Article 186 of the Constitution, the
decision cannot be undone.
Detailed Reasons
20. With regard to the conviction and sentence of Mr. Bhutto, on
6 March 2024 we had recorded that, ‘in our detailed reasons, we
shall identify the major constitutional and legal lapses that had
occurred with respect to fair trial and due process’. The following are
the detailed reasons.
Reopening of the Investigation

21. The investigation of the murderous attack that took place on
11 November 1974 was undertaken by the Police, however, as no
progress could be made it was transferred to the CIA, but still the
perpetrator(s) could not be discovered. A Tribunal comprising of a
High Court Judge was then constituted who issued certain
directions but it did not help in unearthing the criminal(s). The

recommendation to close the investigation was then made, which
was accepted by the Magistrate and the investigation was officially
closed on 3 May 1976. No one objected to the closure of the
investigation. No application was submitted to reopen the
investigation, and no Court ordered that the investigation be
reopened. The complainant, who was a lawyer of some standing,
also did not object to the closure of the investigation nor did he
take the objection that its closure was premature.
22. Within a few days of General Zia’s take over those, who were
made the accused, were arrested, the crime, which was declared to
be untraced and the investigation of which had been closed, was
reopened (without authorization) and FIA re-investigated it
(without aurthorization). Everyone who was made a co-accused
with Mr. Bhutto had surprisingly confessed to the crime. And, the
High Court unilaterally and without hearing the accused elected to
itself conduct a murder trial, which was wholly unprecedented. Mr.
Bhutto had appointed General Zia-ul-Haq as the Army Chief26 who
by his actions of 5 July 1977 had clearly violated Article 6 of the
Constitution and committed the offence of high treason, the
prescribed punishment for which is imprisonment for life or death.
General Zia, therefore had a motive to proceed against Mr. Bhutto,
because had he not done so, Mr. Bhutto may have proceeded
against him for committing high treason.
Reinvestigation by FIA
23. The Federal Investigation Agency Act, 1974 (‘the FIA Act’)
constituted the FIA, and empowered the FIA to investigate the
offences listed in the Schedule to the FIA Act, but it does not
permit the reinvestigation of a crime which has already been
investigated by the Police and the investigation whereof was
ordered to be closed. Significantly, no judicial order was issued
directing that the investigation be reopened or the crime
reinvestigated by the FIA. The FIA had received the case file on 8
26 On 1 March 1976.
August 1977, but it had already commenced reinvestigation on 24

July 1977, as per case diary recorded by Abdul Khaliq, Deputy
Director, FIA. This suggests that there was a preconceived
objective. This transgression escaped the attention of the Trial
Court Judges and also of the majority of the Appellate Court
Judges.
Transfer of Case to the High Court

24. The reinvestigation report was submitted to the Sessions
Judge, Lahore27 on 12 September 1977 who sought a report from
the Public Prosecutor. However, the very next day (on 13
September 1977) the case was placed before a single Judge of the
Lahore High Court, namely, Justice Mushtaq Hussain, who did
something most unusual. Without issuing notices to Mr. Bhutto
and to the other accused, without providing them an opportunity
of a hearing and without enabling them to acquire legal
representation, he ordered that, ‘In view of the submissions made
in the petition the case is transferred to this Court for trial.’
25. Section 526 of the Code of Criminal Procedure, 1898 (‘the

Code’) empowers the High Court to transfer a criminal case to
itself if: (a) a fair trial is not possible, (b) the case involves some
questions of law of unusual difficulty, (c) if the place in or near
which any offence has been committed needs to be viewed, (d) it
will be to the general convenience of the parties or witnesses or (e)
to secure the ends of justice. However, Justice Mushtaq Hussain,
ACJ did not cite any reason, let alone any of those mentioned in
the law necessitating the transfer of case to the High Court and for
it to conduct the trial itself.
Prejudice Caused to the Accused/Convict

26. A murder trial is conducted by a Court of Session.28 Appeal
against conviction lies before the High Court.29 Article 185(2)(b) of
the Constitution and sections 411-A and 526 of the Code permit
27 Code of Criminal Procedure, 1898, section 190(2) read with section 346(2).
28 Ibid., sections 190(2) and 265-A.
29 Ibid., section 410.
trials to be conducted by the High Court, but these provisions do

not provide for a High Court to conduct a murder trial. There was
not a single precedent of a High Court conducting a murder trial.
Mr. Bhutto’s murder trial by the High Court made history; never
before nor since has this happened. In other countries of the
Indian subcontinent, where there are similar legal provisions, a
High Court has never conducted a murder trial.
27. By conducting the murder trial itself, the High Court made
redundant a number of provisions of the Constitution and Chapter
XXVII of the Code. Section 374 requires that every sentence of
death is required to be confirmed by the High Court; a vitally
important safeguard against faulty convictions and hasty
hangings. The sentence of death which is confirmed by the High
Court must also be signed by two judges.30 When a sentence of
death is passed, the High Court to which the matter is sent for
confirmation of the conviction and sentence is also empowered to
pass any other sentence warranted by law or acquit the accused
person.31 In this case the trial was conducted by the High Court as
the Trial Court, therefore, the death sentences passed by the Trial
Court had to be confirmed by the Appellate Court. The mandatory
requirement of section 376 of the Code, reproduced hereunder,
was not complied with:
‘Power of High Court to confirm sentences or annul
conviction: In any case submitted under Section 374
the High Court:
(a) may confirm the sentence, or pass any

other sentence warranted by law; or
(b) may annul the conviction and convict the

accused of any offence of which the
Sessions Court might have convicted him
or order a new trial on the same or an
amended charge; or
(c) may acquit the accused person;
Provided that no order of confirmation shall be

made under this section until the period allowed for
preferring an appeal has expired, or, if an appeal is

presented within such period, until such appeal is
disposed of.’
28. If for argument’s sake it be accepted that the High Court

could have conducted a murder trial, this it then did as a Trial
Court, and as death sentences were passed these had to be
confirmed by submitting the case to the High Court. Any two
Judges of the High Court, who had not conducted the trial, could
have done so in terms of section 376 of the Code. But, this was not
done. Without confirming the sentences of death they could not
have been executed. The Code, and its section 376, which provides
essential protection to those sentenced to death, was enacted in
1898, but this provision has only once been disregarded, which
was in this case.
Constitutional Safeguards were Disregarded

29. The Constitution mandates that, ‘To enjoy the protection of
law and to be treated in accordance with law is the inalienable right
of every citizen.’32 And, ‘In particular no action detrimental to the life,
liberty, body, reputation or property of any person shall be taken
except in accordance with law.’33 The law (section 376 of the Code)
requiring the confirmation of death sentences was violated and this
inalienable right was contravened. Article 9 of the Constitution
stipulates that, ‘No person shall be deprived of life or liberty save in
accordance with law,’ and this fundamental right too was violated,
regrettably, by those mandated to ensure the laws compliance.
Right of appeal lost

30. An appeal against the conviction and sentence of a Court of
Session lies to the High Court.34 However, since the trial was
conducted by the High Court itself, Mr. Bhutto and the other
accused were deprived of one right of appeal. Article 4(1) of the
Constitution which requires that all be treated in accordance with
law, and Article 9 of the Constitution which prohibits anyone to be
32 Constitution of the Islamic Republic of Pakistan, Article 4(1).

33 Ibid, Article 4(2) (a).
34 Code of Criminal Procedure, 1898, section 410.
deprived of life save in accordance with law were vitiated. The

convicts were deprived of one right of appeal, which Articles 4(1)
and 9 guaranteed, and these rights can not be undone or
disregarded, even during the proclamation of emergency.35
Right to Fair Trial and Due Process

31. The right to due process and a fair trial is part of the
jurisprudence of Pakistan. These rights subsisted even before ‘the
right to fair trial and due process’ were specifically incorporated in
the Constitution, through Article 10A in the year 2010 as
Fundamental Rights.36 In the case of Abul A’la Moudoodi v
Government of West Pakistan 37 a five-Member Bench of the
Supreme Court had stated (in 1964) that the necessity of due
process ‘is an element of justice which forms part of the British
Common Law’, that is inherited by Pakistan. In the case of Benazir
Bhutto v Federation of Pakistan 38 (1988) the Fundamental Right to
life (Article 9 of the Constitution) was held, by an eleven-Member
Bench of the Supreme Court, to include access to justice, which
incorporates fair trial and due process:
‘The right of “access to justice to all” is a well-
recognised inviolable right enshrined in Article 9 of the
Constitution. This right is equally found in the
doctrine of “due process of law”. The right of access to
justice includes the right to be treated according to
law, the right to have a fair and proper trial and a right
to have an impartial Court or Tribunal. This
conclusion finds support from the observation of
Willoughby in Constitution of United States, Second
Edition, Vol. II at page 1709 where the term “due
process of law” has been summarised as follows:
“(1) He shall have due notice of proceedings which

affect his rights.
(2) He shall be given reasonable opportunity to

defend.
(3) That the Tribunal or Court before which his

rights are adjudicated is so constituted as to give
35 Constitution of the Islamic Republic of Pakistan, Part X.

36 Article 10A was inserted by the Constitution (Eighteenth Amendment) Act,
2010.
37 PLD 1964 Supreme Court 673, p. 710.
38 PLD 1988 Supreme Court 416.
reasonable assurance of his honesty and

impartiality, and
(4) That it is a Court of competent jurisdiction.”
It therefore follows that in terms of Article 9 of the

Constitution a person is entitled to have an impartial
Court and tribunal. Unless an impartial and
independent Court is established the right to have a
fair trial according to law cannot be achieved.’
The above principle was reiterated (in 1993) in the case of

Government of Balochistan v Azizullah Memon:39
‘The right of access to justice is internationally well-
recognised human right and is now being implemented
and executed by granting relief under the
Constitutional provisions. Article 10 of Universal
Declaration of Human Rights and Article 14 of the
United Nations Convention on Criminal Political
Rights40 recognize the right of fair trial by an
independent and impartial Tribunal established by
law.’
‘The right of access to justice does not only mean that

the law may provide remedies for the violation of
rights, but it also means that every citizen should have
equal opportunity and right to approach the Courts
without any discrimination. It also envisages that
normally the Courts established by law shall be open
for all citizens alike. Where the jurisdiction of the
ordinary Courts established under the ordinary law is
excluded or barred and certain class of cases or class
of persons or inhabitants of an area are not allowed to
approach such Courts and are to be tried or rights
adjudicated by special Courts, then a fair, rational and
reasonable classification must be made which have
nexus with the object of the legislation.’
Al-Jehad Trust v Federation of Pakistan 41 was decided by a

five-Member Bench (in 1996) and it reiterated the earlier (1994)
decision in the case of Government of Sindh v Sharaf Faridi,42 in
which the due process of law requirement had been stressed.43

40 Incorrectly mentioned, as it is the International Covenant on Civil and Political
Rights.
43 PLD 1996 Supreme Court 324, p. 423YY.
In the above mentioned cases, and in many others recording

similar opinions, the jurisprudence of fair trial and due process
stood established as a fundamental right well before the insertion
of Article 10A44 in the Constitution in 2010. The safeguards to
ensure that an accused is fairly and justly treated and that
essential requirements of a fair trial and due process are met were
disregarded in the case of Mr. Bhutto.
Basis of Conviction
32. The foremost basis for the conviction of Mr. Bhutto was the
testimony of an accused, who turned approver, namely, (Sheikh)
Masood Mahmood, the then Director-General of the Federal
Security Force (‘FSF’). After the coup d’etat of 5 July 1977 Masood
Mahmood was arrested, nominated as an accused and pleaded
that he would make disclosure of the crime, provided he is
pardoned. His plea was accepted and he was made an approver.45
Masood Mahmood the Approver

33. After Masood Mahmood’s arrest he wrote to the District
Magistrate, Lahore on 7 September 1977, stating he had, ‘simply
carried out orders of the former Prime Minister of Pakistan, Mr.
Zulfiqar Ali Bhutto, to cause the death of Mr. Ahmad Raza Kasuri.’
And, ‘in case I am granted pardon… I would be able to disclose
material facts regarding the conspiracy leading to the murder…’. He
did so because, to use his own words, ‘the commission of this
heinous crime has haunted my conscience.’ Incarceration had
revived his flagging conscience. The crime was committed three
years earlier and Masood Mahmood’s conscience remained
dormant and only awoke when he was arrested. A conscience
which first wanted to secure a pardon for himself. A conscience
which considered that to order an assassination was ‘simply’ a
matter of ‘carrying out orders’, as was stated by this most senior
police officer. The Additional District Magistrate accepted Masood
44 Article 10A was inserted by the Constitution (Eighteenth Amendment) Act,

2010.
45 Under section 337 of the Code of Criminal Procedure, 1898.
Mahmood’s plea on 14 September 1977, seven days after he had

written to him offering ‘to disclose material facts.’
Statement of Masood Mahmood

34. Masood Mahmood was made an approver on 14 September
1977, and his statement was recorded the same day. He waxed
eloquent and most of what he said was irrelevant. The first four
pages mention the various positions that he had held and how he
reached grade 21. ‘My selection to the Indian Police was made
against a war reserved vacancy as I had served briefly in the Royal
Indian Air Force.’ And, ‘I resumed duty on 18th September 1948 as
Assistant Superintendent Police.’ This was followed by saying that
Prime Minister Mr. Bhutto had sent for him on 12 April 1974, had
praised him and noted the ‘good work’ he had done and
acknowledged his ‘established reputation for integrity, honesty and
hard work.’ It is questionable whether integrity and honesty would
be the qualities to look for in a henchman. Masood Mahmood
stated that after an hour of Mr. Bhutto persuading him he
condescended to ‘take-over as D.G. (FSF) to re-organise and train
the force.’ He then proceeded to reveal his vulnerability, stating
that his ex-colleague Saeed Ahmad Khan, Chief Security Officer of
the Prime Minister, and his Assistant, Abdul Hamid Bajwa, told
him that if he did not do as Mr. Bhutto asked, ‘your wife and
children may see no more of you.’ Saeed Ahmed Khan was not
produced as a witness and Abdul Hamid Bajwa had died,
therefore, anything allegedly said by them constituted hearsay.
Masood Mahmood then disclosed his cowardice, stating that Mr.
Bhutto had told him, ‘You do not want Waqar chasing you…?’
Waqar was also not produced as a witness. Another name which
Masood Mahmood dropped was of M. R. Welch, Director FSF in
Quetta, who he ‘instructed to take care of him [Mr. Kasuri] if
possible in Quetta’. Masood Mahmood stated ‘that Mian Abbas had
previously been asked under his orders through Mr. Haq Nawaz
Tiwana do away with Ahmad Raza Kasuri. He directed me to tell
Mian Abbas to get on with the job and tell Mian Abbas to produce
either Ahmad Raza Kasuri’s dead-body or his body totally
bandaged all over.’ Mian Muhammad Abbas, however, retracted his

statement before the Trial Court and Haq Nawaz Tiwana, the
previous Director-General of FSF, was not produced to testify.
Masood Mahmood stated that Mr. Bhutto had wanted Mr. Kasuri
to be killed for quite some time and had already directed Mian
Abbas to do so, but to no effect. However, only when Masood
Mahmood directed him to do so was Mr. Kasuri fired upon, which
instead killed Mr. Khan.
Masood Mahmood Defiance of the Prohibition to Kill

35. Masood Mahmood put himself forward as a man having faith
(‫ )اﯾﻣﺎن‬in God and knew that ordering someone’s murder was
‘against the dictates of God’, but since he was given ‘specific orders’
from Mr. Bhutto he became ‘instrumental in defying God Almighty
(May He forgive me) for taking a valuable human life.’ The reason
cited by Masood Mahmood for defying God was his marital status –
‘I would have chucked the job and walked down on the street, had I
been a bachelor.’
Masood Mahmood’s Credibility

36. Masood Mahmood’s credibility was accepted and he was
believed without demur by the Trial and Appellate Courts.
However, there were a number of factors which prudence should
have alerted and shown that he was self-serving, self-preserving,
morally bankrupt, and a false witness:
(1) Masood Mahmood testified that Mr. Bhutto had
appointed him as the Director General of FSF because
of his integrity and honesty, but would those be the
qualities that would be sought in one appointed to
fulfill a criminal agenda and carry out nefarious
activities.
(2) Masood Mahmood stated that ‘his father and the
deceased were great friends’ yet he had no qualms to
order the assassination of the son of his father’s great
friend.
(3) Mr. Bhutto had already instructed Mian Muhammad

Abbas to assassinate Mr. Kasuri, according to Masood
Mahmood, therefore, it is inexplicable why he would
then also tell Masood Mahmood to do so.
(4) Masood Mahmood stated that Mian Muhammad Abbas
did not follow Mr. Bhutto’s directions to kill Mr.
Kasuri, but offered no explanation why he disobeyed
and suffered no consequences for such disobedience.
(5) However, Masood Mahmood’s orders were followed by
Mian Muhammad Abbas, who had earlier disobeyed
the Prime Minister.
(6) As stated by Masood Mahmood it was acceptable to
Mr. Bhutto if Mr. Kasuri was given a thorough beating
yet he directed that Mr. Kasuri be killed.
(7) In ordering an assassination, and not a beating,
Masood Mahmood alone would be responsible for it.
(8) Masood Mahmood stated that the following were
complicit and were informed about the conspiracy to
kill Mr. Kasuri: (1) Haq Nawaz Tiwana, the first
Director-General of FSF, (2) Mian Muhammad Abbas,
Director FSF, (3) M. R. Welch, Director FSF, Quetta, (4)
Saeed Ahmed Khan, Prime Minister’s Chief Security
Officer, (5) Abdul Hamid Bajwa, Assistant Chief
Security Officer and (6) himself. This number of
persons knowing about a heinous conspiracy showed
complete recklessness and disregard of detection,
which any reasonable person would find hard to
accept.
(9) The conspiracy theory put forward by Masood
Mahmood was believed without a shred of supporting
evidence.
(10) After Mr. Khan’s murder Masood Mahmood continued
to hold the position of DG of FSF, however, he was
never again asked by Mr. Bhutto to do anything
nefarious, let alone to kill. Did this mean that Mr.
Bhutto had only one enemy, and the FSF comprising
of thousands of personnel, was established for this

sole purpose.
(11) Masood Mahmood secured his freedom and a passage
out of the country by sacrificing Mr. Bhutto. A prudent
person would be alerted to the conduct of such a
person, yet Masood Mahmood’s credibility was not
questioned by those whose judicial duty it was to
satisfy themselves of it.
Conscience and Convenience

37. Masood Mahmood repeatedly referred to his conscience. ‘My
conscience haunted me’ and ‘that this action [murder] would be
against my conscience.’ However, his conscience, lay dormant
throughout his tenure as the Director-General of the FSF; it
surfaced when he had spent only a few days in custody, and, his
resurgent conscience was premised on first extricating himself and
securing for himself a pardon. His convenience and safety trumped
his conscience, which begs the question, was he truthful or an
opportunist? Confessions must be voluntary and must not have
‘been obtained from him by fear of prejudice or hope or advantage’. 46
And, ‘If the confession directly or indirectly is the result of
inducement, threat or promise from a person in authority, it would
be treated as not voluntary’.47 It must be ‘ensure[d] that the
confessional statement should be absolutely free from the slightest
tinge or taint of extraneous influence such as threat, promise or
inducement and the Courts are placed under an obligation to
affirmatively satisfy themselves that it is free and voluntary’. 48
Masood Mahmood obtained for himself freedom from captivity by
his self-serving statement. Masood Mahmood melodramatically put
forward his faith by overlooking Islam’s most fundamental
teaching, and prohibition: to kill a human, and that killing one
person was like the killing of all of humanity and saving one
person was like the saving of all of humanity.49 This type of person
46 Ibrahim v King, (1975) 3 AllER 175.

47 Muhammad Amjad v State, PLD 2003 Supreme Court 704, 717.
48 Dhani Bakhsh v State, PLD 1975 Supreme Court 187, 191B.
49 Al-Qur’an, surat Al-Maidah (5) verse 32.
the Federal Court had perceptively categorized as ‘a moral

wretch’.50
Lack of Evidence
38. With regard to the three offences attracting death sentences,
section 302 (murder), section 307 (attempted murder) and section
111 (abetment), there was no direct evidence against Mr. Bhutto,
there wasn’t even circumstantial evidence, which would exclude
any reasonable hypothesis of innocence. The entire prosecution
case was built on the statements of Masood Mahmood and Mian
Muhammad Abbas, however, Mian Muhammad Abbas retracted
his confession and testified to the contrary. Haq Nawaz Tiwana and
Abdul Hamid Bajwa had died. M. R. Welch and Saeed Ahmed
Khan, without being made approvers, were produced as
prosecution witnesses.
Negative Forensic Report

39. The spent bullet casings, ejected from the firearm(s) that
were used in the attack, did not match any of the weapons in use
of the FSF. The prosecution contended that they were substituted,
but without producing any positive evidence to substantiate this.
Nonetheless, this contention of the prosecution was accepted, and
it was further presumed that the purported substitution was done
at the behest of Mr. Bhutto.
Unsubstantiated Inferences
40. Certain notings in some file/document, statedly made by
Abdul Ahad, DSP, and Abdul Hamid Bajwa (exhibits 3/2-A and
3/2-A/1), were brought on record. And, Mr. Bhutto was sought to
be implicated by relying on them purely on the basis of
assumptions and his ‘subsequent conduct’, without stating what
this was and how it incriminated him. The Trial Court held that,
‘These documents corroborate the evidence of these witnesses on
this point,’ but without stating the said point. The judgment follows
this with another vague sentence – ‘These documents further show
50 Ishaq v Crown, PLD 1954 Federal Court 335, 343.

that the principal accused as well as P.W.3 agreed to this

suggestion’, without expounding on what was this suggestion and
to what had they agreed. Neither Abdul Ahad nor Abdul Hamid
Bajwa were produced as witnesses (Abdul Hamid Bajwa had died),
therefore, they could not be subjected to cross-examination.
Extraordinary effort was made to draw arbitrary connections,
derive meanings therefrom and then use them against the accused.
This eroded the fundamental principle of establishing guilt beyond
reasonable doubt. The manner in which the trial was conducted
was antithetical to a fair trial and due process.
Motive - Corroboration
41. Section 114 of the Evidence Act, 187251 in its illustration (b)
states, ‘that an accomplice is unworthy of credit, unless he is
corroborated in material particulars.’ In criminal jurisprudence it is
well settled that motive cannot corroborate an approver’s
testimony.52 However, the Trial Court was of the opinion that
motive could be used as corroboration as expressed in paragraph
584 of its judgment, comprising of 627 paragraphs. Respectfully, it
was also incorrect to say that, ‘The principle laid down is not so
wide’, which was in complete negation of the said statutory
provision. Only in paragraph 584 of the judgment was there a
fleeting reference to motive yet the Trial Court proceeded on an
incorrect assumption that the motive stood established, even
though the facts did not suggest this.
42. The Appellate Court’s majority judgment,53 which comprised

of 963 paragraphs, probably the longest judgment in any criminal
case, upheld the High Court’s judgment. The majority of the
Judges of the Appellate Court took an even more novel approach,
by first holding that the four co-accused and two approvers were
not accomplices but witnesses, and then holding (on this entirely
incorrect assumption) that they did not require corroboration.
51 Illustration (b) of Article 129 of the Qanun-e- Shahadat, 1984.

52 Qabil Shah v State, PLD 1960 Karachi 697.
53 The majority judgment was authored by Anwarul Haq, CJ, and was agreed by
Mohammad Akram, Karam Elahee Chauhan and Nasim Hassan Shah, JJ.
Corroboration of accomplices was categorized as an artificial

requirement. ‘Without introducing an artificial requirement of
corroboration of his evidence by applying the rule contained in
illustration (b) to section 114 of the Evidence Act.’ Disregarding a
statutory provision and declaring it to be an artificial requirement
did not behove judges, and all the more so when the object of the
law is to prevent wrong convictions.
The Asserted Motive - Constitutional Protection

43. The motive cited by Mr. Kasuri for targeting him was his
political differences with Mr. Bhutto. Mr. Kasuri cited Mr. Bhutto’s
speech of 3 June 1974 in the National Assembly and the exchange
of words between them as the motive for the crime. Other speeches
in the National Assembly were also referred to, and relied upon, to
support motive. The proceedings of the National Assembly were
also relied upon by the Courts. This was not permissible. The
Constitution stipulates that, ‘no member shall be liable to any
proceedings in any court in respect of anything said’54 in
Parliament. This constitutional provision, and protection accorded
to the Members of Parliament, was not even considered.
44. Mr. Kasuri stated that he was an opponent of Mr. Bhutto yet
whatever he said was believed. The possibility of others having a
motive, which were mentioned in Report of the Tribunal was not
explored. Mr. Khan was shot at and died; the investigators also did
not consider the possibility that Mr. Khan may have been the
intended target. There were also two ladies in the ill-fated car but,
surprisingly, neither of them, nor any of the other children of Mr.
Khan were examined to consider whether someone else may have
had a motive. Mr. Bhutto’s enmity with Mr. Kasuri was cited by
Mr. Kasuri as the motive, however, it was not even considered that
such enmity could equally be a reason to falsely implicate Mr.
Bhutto.
54 Constitution of Islamic Republic of Pakistan, Article 66(1).

Did Mr. Bhutto or Mr. Kasuri have Motive?

45. The entire prosecution case was premised on the motive
which Mr. Kasuri asserted. However, this at best was an
expression of suspicion; he could not say that he had personal
knowledge of any specific conspiracy on Mr. Bhutto’s part. When
Mr. Kasuri testified in Court he undermined his own credibility,
and consequently the suspicion he harboured that Mr. Bhutto was
behind the attack. Mr. Kasuri had successfully contested on the
Pakistan Peoples Party (‘PPP’) ticket from Kasur (NA 63) in the
general elections held in 1970. He stated that Mr. Bhutto had
‘suspended my primary membership of PPP’ on 2 May 1971. And
the very next day, ‘On 3.5.1971, in a Press Conference I floated my
own group in the PPP, which was known all over the country as PPP
(Raza Progressive Group).’ Mr. Kasuri stated that he then ‘made a
temporary peace with Mr. Bhutto as a matter of political strategy…
in the year 1972.’ But, ‘Immediately after the lifting of the Martial
Law on 21st April, 1972, I showed my teeth against Mr. Bhutto and
revived my old role of criticising him both outside and inside the
National Assembly of Pakistan.’ He continued, ‘Mr. Bhutto formally
expelled me from the PPP in October, 1972. In June, 1973 I joined
Tehrik-I-Istiqlal and I re-joined PPP on 6th April 1976. I joined the
PPP because of instinct of self-preservation, because I knew I was a
marked man.’ The inconsistencies in Mr. Kasuri’s testimony
abound.
46. Mr. Kasuri attributed the killing of his father to Mr. Bhutto
but had no qualms applying to him for a PPP ticket to contest the
1977 general elections - ‘I did apply for a PPP ticket for election to
the National Assembly this year, … The ticket was not awarded.’
Surely, self-preservation could not be a reason for applying for a
PPP ticket in the coming elections. Mr. Kasuri was confronted in
cross-examination with his letter (P.W. 1/19) through which he
had requested for an interview with Mr. Bhutto, and he stated,
‘This request for seeking an interview pertains to the period from 8 th
of January to 30th of January, 1977, because in this period the
tickets had to be decided and I was seeking an interview in relation

to that.’
Motive Vitiated by Mr. Kasuri

47. Mr. Kasuri undermined his own narrative and credibility. He
rejoined the PPP, headed by Mr. Bhutto, who he had earlier
accused for the murderous attack on him, but which had killed his
father. Mr. Kasuri tried to resolve this contradiction by saying that
he did so for self-preservation. This explanation is difficult to
accept, because it would mean that when his father was killed in
1974 he had acted bravely and nominated the Prime Minister for
conspiracy and murder but later cowardice awashed over him. It is
inexplicable why he would solicit the PPP ticket from the
nominated accused after the murder of his father. The justification
he offered was irreconcilable and unbelievable. It was imperative
for the Trial Court to have scrutinized Mr. Kasuri’s vacillating
explanations and for the Appellate Court to have analyzed his
recorded testimony in this regard, but unfortunately this was not
done. The entire prosecution case was premised on Mr. Bhutto
having the motive to have Mr. Kasuri killed. A motive which Mr.
Kasuri himself vitiated.
48. The Trial Court and the Appellate Court gave credence to the
motive theory, however, Mr. Kasuri’s testimony could be equally
treated to be that of a person wanting to settle personal scores. His
testimony had created more than reasonable doubt about the
alleged motive and it was equally suggestive of his animus towards
Mr. Bhutto and to falsely implicate him. The prosecution is
required to establish the guilt of an accused beyond reasonable
doubt, which in the case of Mr. Bhutto with regard to motive, the
attendant conspiracy and resultant killing it had not done.
Failure to Establish Motive

49. The matter of motive in this case, unlike other criminal
cases, was very significant also because of the charge of
conspiracy. It is also well established that in criminal cases the
prosecution need not set up a motive but if it elects to do so and
then fails to establish it the prosecution suffers its consequences. 55

The motive’s absence, or failure to establish it is also consequential
in a murder case in which the guilt of the offender is established
but the asserted motive is not. In such cases the accused
invariably is not given capital punishment, but instead
imprisonment for life.56
Either Kill or Beat Mr. Kasuri

50. Masood Mahmood had confessed, and testified in Court, that
Mr. Bhutto wanted one of two outcomes; either that Mr. Kasuri is
killed or that he be severely beaten up. In his confessional
statement57 Masood Mahmood said, ‘He [Mr. Bhutto] then ordered
me to tell Mian Abbas to get on with it and produce either Ahmed
Raza Kasuri dead body or his body totally bandaged all over…’.
And, that, ‘After giving orders to Mian Abbas I carried on normal
work….’ In his testimony (recorded before the five-Member Trial
Court) he said, ‘The Prime Minister went on to instruct me that I
should ask Mian Muhammad Abbas to get on with the job and to
produce the dead body of Mr. Ahmed Raza Kasuri or his body
bandaged all over.’ And, ‘I repeated to [Mian Muhammad Abbas]
him the orders of the then Prime Minister verbatim.’ He did not
disclose the orders that he gave to Mian Abbas. Masood Mahmood
(in following Mr. Bhutto’s stated orders) could have elected to
direct that Mr. Kasuri be given a severe beating, however, he
presumably elected to order that he be killed. This aspect neither
the Trial Court nor the Appellate Court considered. Therefore,
Masood Mahmood, and not Mr. Bhutto, would be liable for the
killing.
First Information Report - FIR

51. The crime was first reported to the police, not by Mr. Kasuri,
but by his brother, as Mr. Kasuri himself stated. ‘My brother, Maj.
Ali Raza rang up S.S.P. [Senior Superintendent of Police] Lahore
55 Hakim Ali v State, 1971 SCMR 432, 445C, Habibullah v State, PLD 1969
Supreme Court 127, 130A.
56 Hakim Ali v State, 1971 SCMR 432.
57 Code of Criminal Procedure, 1898, section 164.
and told him about this incident on the telephone. S.S.P., Lahore at
that time was Mr. Asghar Khan, who after, receiving this message
on the telephone arrived in the hospital … alongwith others. A large
contingent of Police also arrived on various kinds of vehicles.’ S.S.P.
Lahore (PW 12) also confirmed that the crime was first reported by
‘Major Ali Raza son of Nawab Muhammad Khan Kasuri, after
midnight.’ Major Ali Raza, who first informed the police, was also in
the hospital when the police reached it. However, the FIR did not
mention Major Ali Raza as the informant and the FIR’s
complainant.
52. Mr. Kasuri submitted a written complaint after almost three

hours had elapsed since the crime, in which he mentioned Mr.
Bhutto. The FIR was registered at 3.45 am on 11 November 1974
which showed Mr. Kasuri (and not his brother) as the
informant/complainant.
53. Section 154 of the Code requires that when information of a

cognizable offence is given to the police it is required to be recorded
by the officer in charge of the concerned police station. The
categorization of reporting of a crime and reducing it into writing
as the first information report (FIR), as its name suggests, is the
very first information of a cognizable crime received by the police.
An important object of the FIR, which courts consider, is that the
crime was promptly reported to the police without retrospection
and embellishment.
54. The first reporting of the crime to the police was by Major Ali
Raza, however, the FIR was not registered when he reported the
crime, nor was he cited as the informant/complainant in the FIR
when it was registered. Surprisingly, Major Ali Raza was also not
produced as a witness. This glaring anomaly went unnoticed by
the Trial Court as well as by the majority of the Appellate Court.
On its own this may be inconsequential but since the courts had
categorized Mr. Kasuri as the informant, had assumed that the FIR
was promptly recorded, without Mr. Kasuri having had time to
embellish it and to falsely implicate Mr. Bhutto, and the
prosecution had alleged that there was a conspiracy by basing it

on the contents of the FIR, all of which the courts had
unquestioningly accepted, it became most significant. This was yet
another aspect showing that the law and the constitutional
safeguards to ensure a fair trial had been disregarded.
The Co-accused
55. All the six co-accused were arrested after General Zia’s
takeover and the imposition of Martial Law, and all of them had
confessed to the crime. This remarkable coincidence neither the
Trial Court nor the Appellate Court considered to be unusual nor
was it ever considered whether these confessions could have been
induced. Two of the accused were pardoned and made approvers.
One retracted his confession before the Trial Court but reiterated it
before the Appellate Court. The remaining three co-accused did not
even engage a counsel and the Trial Court appointed a counsel (at
State expense) to represent all three of them, however, their
counsel58 at every juncture wanted to implicate, rather than
extricate, his clients and was at pains to reinforce the prosecution
case to prove Mr. Bhutto’s guilt and thus of his own clients. It was
the duty of the counsel, and of the Trial Court, to explain to these
three co-accused that to abide by the command of a superior is not
a defence to the charge of murder, but this was not done.
Supreme Court Bench Reconstituted

56. Nine Judges commenced hearing the appeal filed by Mr.
Bhutto,59 and heard it till 30 July 1978, where-after seven Judges
heard it on 21 August 1978 and they announced their judgment
on 6 February 1979. One of the nine Judges was Qaiser Khan, J
who had retired on 30 July 1978, on his sixty-fifth birthday.60 The
Constitution envisages that an adhoc Judge may be appointed
within three years of his retirement, 61 but he was not appointed,
despite having heard the appeal; the appellant’s request in this
58 Mr. Irshad Ahmed Qureshi, Advocate.

59 Criminal Appeal No. 11 of 1978.
60 Constitution of the Islamic Republic of Pakistan, Article 179.
61 Ibid., Article 182.
regard was not heeded. Another Judge, Waheeduddin Ahmed, J,

fell ill when the appeal was in its final stages of hearing and
required about six weeks to recuperate, but rather than adjourning
the case and awaiting for him to resume work the appeal was
heard and was concluded in his absence. Considering that the
appellant had been convicted and was incarcerated it is not
understandable why Qaiser Khan, J was not appointed as an
adhoc Judge after his retirement nor why the Appellate Court
could not wait for Waheeduddin Ahmed, J to rejoin the Bench.
This may have been inconsequential if the Appellate Court’s
decision was unanimous, but when four Judges had upheld the
conviction and three had acquitted Mr. Bhutto it was a matter of
great concern.
President’s Power to Grant Pardon

57. Fazal Ellahi Chaudhry was elected as the first President of
Pakistan under the new Constitution. 62 General Zia-ul-Haq took
over the office of President on 16 September 1978, without being
elected to it. The Constitution grants to the President the power to
pardon, remit, suspend or commute any sentence passed by any
court.63 President Fazal Ellahi Chaudhry had (on his own volition)
written to General Zia-ul-Haq ‘spelling out extra-judicial
considerations which would weigh with the Executive in taking a
decision in this matter.’64 However, the High Court took inexplicable
umbrage with Mr. Bhutto’s counsel referring to this letter. ‘In these
circumstances, the introduction of this letter in the present
proceedings is nothing but an attempt to politicise the matter… We
deprecate such an attempt.’65 What, however, is of significance is
that Mr. Bhutto was not dealt with in accordance with Article 45 of
the Constitution, despite the reasons mentioned by President Fazal
Ellahi Chaudhry in his letter. This was yet another transgression
62 Constitution of the Islamic Republic of Pakistan, 1973.

64 Order dated 24 February 1978 in Cr. Misc. Petition No. 16-R/79 in Criminal
Review Petition No. 5-R/79.

65 Ibid., authored by S. Anwarul Haq, CJ.
of due process, and to enjoy the protection of law and to be treated

in accordance with law.66
Judges who Headed the Benches

58. Justice Mushtaq Hussain, in his capacity as the Acting Chief
Justice, headed the Bench of the Lahore High Court which had
convicted Mr. Bhutto, and Justice Anwarul Haq was the Chief
Justice of the Supreme Court and headed the Bench which had
upheld the conviction. The assumption of offices by both these
Judges was somewhat unusual.
(a) Lahore High Court: Justice Mushtaq Hussain was appointed
as the Acting Chief Justice of the Lahore High Court on 13 July
1977, when Justice Aslam Riaz Hussain was holding the position
of the Chief Justice of the Lahore High Court. However, Chief
Justice Aslam Riaz Hussain was appointed as the Acting Governor
of Punjab, and had relinquished the position of the Chief Justice of
the Lahore High Court on 16 July 1977, and on the same day
administered oath to Justice Mushtaq Hussain as the Acting Chief
Justice of the Lahore High Court. The Chief Justice of the Lahore
High Court became the Acting Governor of Punjab, who gave oath
to an Acting Chief Justice who continued in his acting position for
six months; he was given oath as Chief Justice on 16 January
1978. The Constitution does not permit the constitutional office of
the Chief Justice to be kept vacant for such a long duration. A
High Court consists of a Chief Justice and Judges67 and an Acting
Chief Justice is appointed temporarily and only under certain
circumstances.68 An Acting Chief Justice, who later was made the
Chief Justice, had transferred a murder case to the High Court
and had himself presided over the trial, which under the aforesaid
circumstances gave rise to justifiable misgivings.
(b) Supreme Court: Justice Muhammad Yaqub Ali was the Chief
Justice of Pakistan who, ‘relinquished charge of the office of Chief
Justice of Pakistan’ on 22 September 1977. A Judge retires or may

67 Ibid., Article 192(1).
68 Ibid., mentioned in Article 196.
resign.69 Relinquishment of charge is alien to the Constitution.

General Zia-ul-Haq, promulgated Martial Law Order 6 of 1977 70
which compelled Justice Muhammad Yaqub Ali to relinquish the
office of Chief Justice of Pakistan and enabled the appointment of
another. Consequently, Justice Anwarul Haq was appointed as the
Chief Justice of Pakistan on 23 September 1977, ‘In pursuance of
the Proclamation of the fifth day of July, 1977, read with the Laws
(Continuance in Force) Order, 1977 (C.M.L.A Order No. 1 of 1977),
and in exercise of all powers enabling him in that behalf … .’ The
General who had overthrown the democratic order, cast aside the
Constitution, pushed aside the Chief Justice of Pakistan and
appointed another in his place, one who presided over the Bench
which had heard Mr. Bhutto’s appeal. And, crucially, Prime
Minister Mr. Bhutto was deposed by General Zia-ul-Haq, who had
appointed himself as the President of Pakistan by issuing
President’s Succession Order 1978.71 These are the facts,
historical irony notwithstanding.
Bias of Justice Mushtaq Hussain

59. Mr. Bhutto had repeatedly claimed that Justice Mushtaq
Hussain, who was the Acting Chief Justice (later Chief Justice) of
the Lahore High Court, was prejudiced against him and was
motivated by bias, and that he should not conduct the trial, let
alone head the Bench conducting the trial, but this objection was
cast aside by the Court.
60. The mere allegation or apprehension of prejudice or bias is

not sufficient to sustain it. There must be something tangible and
credible which exhibits bias. However, where there is bias it
corrodes impartiality, and impartiality is necessary for correct
decision-making and also to engender the acceptance of decisions.
‘It is not merely of some importance but is of fundamental

70 Laws (Continuance in Force) (Fifth Amendment) Order, 1977, Gazette of
Pakistan, Extraordinary, Part I, 22 September 1977, PLD 1977 Federal Statutes
441.
71 Gazette of Pakistan, Extraordinary, Part I, 16 September 1978, PLD 1978
Federal Statutes 156.

importance that justice should not only be done, but should

manifestly and undoubtedly be seen to be done.’72
61. Martial law was imposed on 5 July 1977 and Mr. Bhutto was
arrested on 3 September 1977, in a three year old criminal case
which had been closed as untraced. Despite having been granted
bail by the High Court Mr. Bhutto was arrested on 16 September
1977 under Martial Law Order No. 12.73 Mr. Bhutto had obtained
bail on 13 September 1977 on the very same day (13 September
1977) Justice Mushtaq Hussain constituted a Bench headed by
himself to try Mr. Bhutto and also himself heard the petition
seeking cancellation of his bail.
62. The five-Member Bench constituted by Justice Mushtaq

Hussain issued a show cause notice on 21 September 1977 to Mr.
Bhutto, and gave him all of two days to state why the bail granted
to him by the High Court should not be cancelled. The show cause
notice also paradoxically directed him to appear before the five-
Member Bench on 24 September 1977 despite the fact that Mr.
Bhutto was incarcerated. On 21 September 1977 Mr. Bhutto
challenged the transfer of the case to the High Court by Justice
Mushtaq Hussain and placing it before a Bench which he headed.
63. Mr. Bhutto submitted a petition before the Supreme Court

stating that Justice Mushtaq Hussain was prejudicial towards him
and also had a bias against him. On 24 September 1977 the
Supreme Court dismissed the application stating that the same
should first be filed before the Trial Court.
64. Mr. Bhutto, pursuant to the Supreme Court order, filed

applications seeking Justice Mushtaq Hussain’s recusal on a
number of grounds, including that: (1) Justice Mushtaq Hussain
‘was prejudiced and partial against the Pakistan Peoples Party’ and
in this regard his statements (published in newspapers) were
72 Rex v Sussex, [1924] 1 KB 256, per Lord Hewart, Chief Justice of England.
The aphorism – ‘justice is not only done, but is also seen to be done’ – is a part
of the Code of Conduct to be observed by Judges of the Supreme Court and of the
High Courts of Pakistan.
73 PLJ 1977 Federal Statutes 276.
referred to. (2) The application seeking cancellation of bail, which

was granted on 13 September 1977 by K.M.A. Samdani, J of the
High Court, was placed before a five-Member Trial Court,
constituted by Justice Mushtaq Hussain, and bail was cancelled
on 8 October 1977, which could not be done by the Trial Court
(because bail had been granted by the High Court), and that too
without giving sufficient notice. (3) Upon acceptance of the office of
Chief Election Commissioner Justice Mushtaq Hussain ceased to
be Acting Chief Justice/Chief Justice because the Constitution
stipulated that the Chief Election Commissioner could not hold
another office.74 (4) Specific instances of prejudicial conduct and
bias during the conduct of the case were also mentioned. (5) The
transfer of the trial from the Court of Session to the High Court,
without notice to the accused, further confirmed the prejudice and
the bias of Justice Mushtaq Hussain. (6) Private complaint case, on
the same facts, was fixed for hearing before a Bench of the High
Court,75 however, Justice Mushtaq Hussain got it placed before the
Bench he constituted and headed. (7) And, that Justice Mushtaq
Hussain had not taken the oath prescribed under the Constitution
but one crafted by the Chief Martial Law Administrator, therefore,
he could not be considered to be the Acting Chief Justice or the
Chief Justice of the Lahore High Court under the Constitution.
Bias of Trial Court

65. The five-Member Trial Court Bench unanimously dismissed
the applications76 filed by Mr. Bhutto. Request for recusal of a
Judge is to be attended by the Judge whose recusal is sought.
However, the Bench gave detailed findings on the objections which
had been raised by Mr. Bhutto with regard to Justice Mushtaq
Hussain. Justice Aftab Hussain77 wrote the order through which
Mr. Bhutto’s applications (seeking recusal) were dismissed. Justice
Mushtaq Hussain simply wrote two words – ‘I agree’ – on the order.
The Hon’ble Judges signing this order justified taking oath under

75 K.M.A. Samdani and Mazharul Haq, JJ.
76 Order dated 9 October 1977 authored by Aftab Hussain, J.
77 Ibid.
Martial Law78 (and not under the Constitution) because if they did
not do so ‘it will lead to the result that there is no superior Court in
Pakistan.’ The expression of such nihilism was wholly unjustified,
and unnecessary when attending to a request for the recusal of a
Judge. The Judges forgot that ‘Obedience to the Constitution’ was
their ‘basic obligation’, like it is of every person in Pakistan.79 And,
that they had also taken the oath to ‘preserve, protect and defend
the Constitution.’80 Such anomie expressed by the Judges
undermined the Constitution, and the necessity to abide by it. The
order had a devastating effect on citizens and the body politic.
Inculcating acceptance of autocratic rule and making it difficult to
shake off the yolk of servitude.
66. The order dated 9 October 1977 also gave a definite finding
with regard to Justice Mushtaq Hussain simultaneously holding
the offices of Acting Chief Justice and of the Chief Election
Commissioner by staggeringly extraordinary reasoning - ‘The Acting
Chief Justice cannot be said to have been appointed as Chief
Election Commissioner under the Constitution. His appointment is
regulated by Election Commission of Order, 1977 (President’s Post
Proclamation Order 4 of 1977).’ The applicable constitutional
provisions with regard to the Chief Election Commissioner81 were
disregarded in preference to the proclamation of one man, who had
assumed power unconstitutionally. Incongruity mocked when the
Chief Election Commissioner could not even ensure that the stated
‘forthcoming General Elections’ were held, for which he was chosen
and given the office of the Chief Election Commissioner. Scorching
irony replaced unconvincing reasoning.
67. With regard to Justice Mushtaq Hussain’s transfer of the

trial from the Court of Session to the High Court, without issuing
78 High Court Judges (Oath of Office) Order, 1977, President’s Order (Post
Proclamation) No. 1 of 1977, High Court (Appointment of Acting Chief Justices).
Order, 1977 and Supreme Court Judges (Oath of Office) Order, 1977.
79 Constitution of the Islamic Republic of Pakistan, Article 5. This Article
originally used the word ‘basic’. It was replaced with the word ‘inviolable’
through President’s Order No. 14 of 1985.
80 Ibid., Third Schedule.
81 Articles 213, 214, 215 and 216.
notice to Mr. Bhutto, the order disregarded the age old wisdom
that a party is entitled to an opportunity of a hearing.82 It held
that, ‘No such notice was required in the present case.’ This
flagrantly disregarded the due process principle which is firmly
embedded in our jurisprudence.
68. Mr. Bhutto’s objection to the assumption of jurisdiction by

the five-Member Bench and also that of the complaint case (filed by
Mr. Kasuri) after it was listed for hearing before ‘a Division Bench
consisting of K.M.A. Samdani, J and Mazharul Haq, J’ was brushed
aside by expressing surprise. ‘It looks rather strange that the
accused petitioner should prefer to be tried by a Bench of two
Judges and not a larger Bench of five Judges bound by their oath of
office to impart justice without fear or favour.’ The learned Judges
of the Trial Court referred to their oath, but forgot that they had
also taken one under General Zia-ul-Haq’s dispensation. In any
event the two Judges of the Division Bench were as bound by their
oath of office to impart justice as were the five. Stressing that they
were bound by their oath and to state that the ‘constitution of such
a Bench [of five Judges] should inspire more confidence rather than
create any apprehension in the mind of any party’ was quite
unnecessary.83 In any event, and with hindsight, the apprehension
of Mr. Bhutto proved to be correct.
69. In Justice Mushtaq Hussain transferring the trial to the High

Court, taking away the pending complaint case from the Division
Bench of the High Court and fixing it before the Trial Court, which
he himself headed, was extraordinary. The law was not followed
and settled methodology departed from.
70. Bias was on display in a number of paragraphs of the Trial

Court judgment. Gratis observations were made which had
absolutely nothing to do with the case before the Court, which was,
whether Mr. Bhutto had conspired to order the assassination of
82In Latin – audi alteram partem.

83Reverberating the famous line from William Shakespeare’s play Hamlet – ‘The
lady doth protest too much, methinks.’
Mr. Kasuri. Extraneous paragraphs were written to dishonour and

disgrace Mr. Bhutto by five Hon’ble Judges who deemed it
necessary to state that, before Mr. Bhutto sought ‘election to the
office of the Chief Executive of the Federation he would order his
own life in accordance with the injunctions and teachings of Holy
Qur’an and Sunnah.’ The priggish sanctimony, with respect, did
not stop here. The moralizing continued:
‘Before undertaking to observe the principles of
democracy, freedom, equality, tolerance and social
justice, as enunciated by Islam he should inculcate
these qualities in himself. Before a person embarks
upon swearing to strive to preserve the Islamic
ideology he would bring himself to believe in that
ideology and test his firmness in that belief. Before
presuming his ability to guarantee to the citizens the
enjoyment of the protection of law and their treatment
in accordance with law he would be a believer and a
true adherent of law. He would consider himself to be
as much subject to law as he would wish others to be.
A person who considers the Constitution and the law
as the handmaid of his polity is neither qualified to be
elected to the high office of the Prime Minister nor can
ever be true to his Oath.’
71. Mr. Bhutto was neither on trial for corruption nor for
violating the Constitution, however, the Hon’ble Judges made
gratuitous remarks about these matters too. And, he ‘treat[ed] the
Constitution and the law as a source of unlimited power for himself
which may satisfy his own inane craving for self-aggrandisement
and perpetuation of his rule. Such a person, in all probabilities,
would destroy the very basis of the Constitution and the law which
he is sworn to uphold.’ Such pontification, however, overlooked the
overthrow of the constitutional order and democratic rule on 5 July
1977, and of the unabated and continuous savagery of the
Constitution.
72. Another discordant note in the order of the Hon’ble Judges of

the Trial Court was expounding the virtues of equality:
‘Islam does not believe in the creation of privileged
classes. It believes in the equality before law of all -
ruler and governed alike. It is opposed to all types of
class distinction. Even the Caliph, the King, the Prime
Minister or the President, by whatever name the ruler
may be called, is as much subject to the law of the

land as any ordinary citizen.’
But no attention was paid to the exceptionalism, and

untouchability of General Zia-ul-Haq, the Chief Martial Law
Administrator, who had gathered, in himself, all the powers of an
absolute monarch.
73. The Appellate Court could not stomach the aforesaid

‘gratuitous observations in paragraphs 610 to 611 of its judgment
regarding the personal beliefs of the appellant, delivering a sermon
as to the mode of conduct prescribed by Islam for a Muslim ruler.’
The Appellate Court, however, considered that justice would be
served if these paragraphs were expunged from the judgment of
the Trial Court.84 It overlooked what was glaringly obvious – the
self-expressed prejudice and bias of the Trial Court.
Adulation and Praise for a Dictator

74. The Trial Court, which had tried and convicted Mr. Bhutto,
and the Appellate Court, which had dismissed his appeal, were
operating when there was no constitutional rule in the country and
one man’s will (and whim) became legislation and his person had
replaced the entire democratic order. Unfortunately, the Chief
Martial Law Administrator was adulated in another case.85 He was
stated to have ‘stepped in to save the country.’86 The expression of
such incredulous admiration undermined the credibility of the
Appellate Court. Was it not obvious that General Zia-ul-Haq would
be the direct beneficiary of a guilty verdict. If Mr. Bhutto was
acquitted he may have proceeded to prosecute General Zia-ul-Haq
for the crime of high treason. General Zia-ul-Haq’s personal
survival depended on Mr. Bhutto being found guilty. The
continuation of usurped power required Mr. Bhutto to be
convicted.
84 Zulfiqar Ali Bhutto v State, PLD 1979 Supreme Court 53, paragraph 935.
85
Begum Nusrat Bhutto v Chief of Army Staff, PLD 1977 Supreme Court 657.
86 Ibid., 723AA.
People’s Mandate
75. General Zia-ul-Haq’s unconstitutional act was ‘construed in
the nature of a mandate from the people of Pakistan.’87 It was not at
all necessary, nor desirable, to state how popular he was. It was
not for the Supreme Court to measure populism, nor what it
entailed.
Absence of Fair Trial and Due Process
76. The Supreme Court, including the three Hon’ble Judges of

the Supreme Court who acquitted Mr. Bhutto,88 had also declared,
‘that the Fundamental Rights stand validly suspended since 5 th of
July 1977.’89 Therefore, and admittedly, the trial was conducted
and the appeal heard without Mr. Bhutto having the constitutional
protection of the Fundamental Rights and other rights guaranteed
in the Constitution. Any single one of the aforesaid noted
transgressions may have vitiated the trial and the conviction,
however, cumulatively they destroyed any semblance of due
process and fair trial, and revealed that innocent men were rushed
to the gallows.
The Courts
77. The Trial and Appellate Courts, which conducted the trial
and heard the appeal, were not true courts under the Constitution.
The country was captive to Martial Law and so too were its courts.
When Judges take oath of allegiance to dictators, the courts are no
longer of the people.
78. In conclusion we want to acknowledge the assistance

provided by all the learned counsel and by the learned amici.
However, the painstaking work undertaken by our retired
colleague, Justice Manzoor Ahmad Malik, and by his team
deserves special mention. The expertise, the depth of knowledge
87 Ibid.
88 Dorab Patel, Muhammad Haleem and G. Safdar Shah, JJ.
89 Begum Nusrat Bhutto v Chief of Army Staff, PLD 1977 Supreme Court 657, pp.
721, 763.
and insightfulness of criminal jurisprudence provided by Justice

Manzoor Ahmad Malik was most valuable and helpful.
Justice Qazi Faez Isa, CJ.
Justice Sardar Tariq Masood, J.
I will be attaching my additional note.
Justice Syed Mansoor Ali Shah, J.
I will be attaching my additional note.
Justice Yahya Afridi, J.
Justice Amin-ud-Din Khan, J.
Justice Jamal Khan Mandokhail, J.
I will contribute my opinion also in support of opinion dated

6.3.2024.
Justice Muhammad Ali Mazhar, J.
I will attach my separate additional note in support of our

opinion dated 6.3.2024.
Justice Syed Hasan Azhar Rizvi, J.
Justice Musarrat Hilali, J.

Islamabad
5 July 2024.
(Farrukh)
Approved for Reporting

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IN THE SUPREME COURT OF PAKISTAN

REFERENCE NO. 1 OF 2011

On behalf of the Mr. Mansoor Usman Awan,

On Court Notice: Mr. Khalid Ishaq, Advocate-General, Punjab,

On behalf of the LRs of Mr. Farooq H. Naek, Sr. ASC, assisted by

Mian Raza Rabbani, ASC, assisted by

Mr. Zahid F. Ibrahim, ASC, assisted by

Amicus Curiae: Mr. Manzoor Ahmad Malik,

Mr. M. Makhdoom Ali Khan, Sr. ASC,

Mr. Khalid Jawed Khan, ASC.

Ch. Aitzaz Ahsan, Sr. ASC,

Mr. Assadullah Khan Chamkani, ASC,

Mr. Salahuddin Ahmed, ASC,

Complainant: Mr. Ahmed Raza Khan Kasuri, ASC.

For SCBA: Mr. Ali Imran, ASC.

Dates of Hearing: 12.12.2023, 08.01.2024, 20.02.2024,

Qazi Faez Isa, CJ.

1 In its meeting held on 28 March 2011.

Seeking the Opinion of the Supreme Court

(2) The Supreme Court shall consider a question so

Questions Formulated for Opinion

2. Whether the conviction leading to execution of

3. Whether in the peculiar circumstances of this

2 On 1 April 2011, pursuant to entry 54 of Schedule V-B, Rule 15-A(1) of the

sentence was justified or it could amount to

4. Whether the decision in the case of murder trial

(a) Sura Al-Nisa: verses 17 & 18

(b) Sunan Ibn-e-Maaja, Chapter 171, Hadith

What are effects and consequences of doctrine

5. Whether on the basis of conclusions arrived at

Rehearing of the Reference

4Before a three-Member Bench, comprising of Iftikhar Muhammad Chaudhry,

Constitution, were taken up for hearing and decided by this Court, 5

3. Learned Mr. Naek refers to the report of Justice

4. The learned Attorney-General for Pakistan (‘AG’)

Punjab Gazette on 11 December 1974.

learned AG stated that this was not done nor is this

5. Learned AG was asked to read the Presidential

6. The first and foremost constitutional and legal

(1) Whether the Presidential Reference is

(2) Whether the Presidential Reference requires a

(3) The constitutional-legal position of the trial and

(4) Were certain judge(s) removed from the trial

10In re: Reference No. 1 of 2011, 2011 SCMR 962.

7. If the aforesaid aspect is successfully attended

8. With regard to the criminal law aspects the

(1) If, and when, can a murder trial be conducted

(2) Was the murder-trial being conducted by the

(3) The consequences, if any, of departing from the

(4) The admissibility or otherwise of a confessional

(5) Was there any legal bias, and if so its effects;

(6) What were the facts leading to reopening the

9. The Presidential Reference refers to an interview,

11 Zulfikar Ali Bhutto v State, PLD 1979 Supreme Court 741.

Pakistan Affairs. Mr. Naek states that Justice Dorab

10. Office is directed to send copies of the

6. We heard this Reference on 8 January, 20, 26, 27 and 28

2. The advisory jurisdiction, under Article 186 of

3. The reference filed by the President of Pakistan