Criminal Case

P L D 2024 Supreme Court 509
Present: Qazi Faez Isa, CJ, Sardar Tariq Masood, Syed Mansoor Ali Shah,
Yahya Afridi,
Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed
Hasan Azhar Rizvi and Musarrat Hilali, JJ
REFERENCE NO. 1 OF 2011
[Reference by the President of Islamic Republic of Pakistan under Article 186 of
the Constitution]
Reference No. 1 of 2011, decided on 6th March, 2024.
(a) Constitution of Pakistan—
—-Arts. 4, 8, 9, 10A, 14, 25 & 186—Reference by the President under Article 186
of the Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime
Minister of Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State
(PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979
Supreme Court 53)—Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the
Lahore High Court) and the appellate court (the Supreme Court)—Requirements of
due process and fair trial—Whether the decision of the Lahore High Court as well
as the Supreme Court of Pakistan in the murder trial against Zulfiqar Ali Bhutto
meets the requirements of fundamental rights as guaranteed under Article 4, subArticles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14,
Article 25 of the Constitution?; and, if it does not, its effect and consequences?—
Supreme Court opined that 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—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 the Supreme Court.
(b) Constitution of Pakistan—
—-Arts. 186 & 189—Reference by the President under Article 186 of the
Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of
Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979
Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court
53)—Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High
Court) and the appellate court (the Supreme Court)—Whether the conviction
leading to execution of 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? and, if not, its effect
and consequences?—Supreme Court opined that referenced questions do not
specify the principle of law enunciated by the Supreme Court in the Zulfiqar Ali
Bhutto case regarding which the Supreme Court’s 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.
(c) Constitution of Pakistan—
—-Art. 186—Reference by the President under Article 186 of the Constitution to
revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan)
reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court
38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)—Murder
trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the
appellate court (the Supreme Court)—Whether in the peculiar circumstances of the
present case awarding and maintaining of the death sentence was justified or it
could amount to deliberate murder keeping in view the glaring bias against Zulfiqar
Ali Bhutto?; and, 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 Zulfiqar Ali Bhutto could have been recorded?—Supreme Court opined that
in its advisory jurisdiction under Article 186 of the Constitution, it cannot
reappraise the evidence and undo the decision of the case—However, in the
detailed reasons, the Supreme Court shall identify the major constitutional and
legal lapses that had occurred with respect to fair trial and due process.
(d) Constitution of Pakistan—
—-Art. 186—Reference by the President under Article 186 of the Constitution to
revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan)
reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court
38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)—Murder
trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the
appellate court (the Supreme Court)—Whether the decision in the case of murder
trial against 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: (i) 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 Sunan Ibn-e-Maaja, Chapter
171, Hadith No. 395; and, what are effects and consequences of doctrine – Re:
Repentance—Supreme Court opined that it was not rendered any assistance on this
question, therefore, it would be inappropriate to render an opinion on the same.
In Attendance:
On behalf of President:
Mansoor Usman Awan, 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:
Khalid Ishaq, Advocate-General, Punjab, assisted by Sanaullah Zahid, Addl. A.G.
Hassan Akbar, Advocate-General, Sindh assisted by Qazi M. Bashir, Addl. A.G. Amir
Javed, Advocate-General, Khyber Pakhtunkhwa, assisted by Sultan Mazhar Sher
Khan, Addl. A.G. Asif Reki, Advocate-General, Balochistan assisted by M. Ayaz
Swati, Addl. A.G.
For the LRs of the Late Zulfiqar Ali Bhutto:
Farooq H. Naek, Sr. Advocate Supreme Court, assisted by Iftikhar Shah and Sheraz
Shaukat Rajpar, Advocates (on behalf of Bilawal Bhutto Zardari).
Mian Raza Rabbani, Advocate Supreme Court, assisted by Zeeshan Abdullah,
Advocate (on behalf of Ms. Sanam Bhutto, Ms. Bakhtawar Bhutto and Ms. Aseefa
Bhutto).
Zahid F. Ibrahim, Advocate Supreme Court, assisted by Altamash Arab, Advocate
(on behalf of Ms. Fatima Bhutto and Zulfiqar Ali Bhutto).
Amicus Curiae
Manzoor Ahmad Malik.
Hon’ble former Judge, assisted by Ansar Nawaz Mirza, Advocate Supreme Court,
Haider Rasul, Advocate Supreme Court and Shahryar Riaz, Advocate High Court.
M. Makhdoom Ali Khan, Sr. Advocate Supreme Court, assisted by Saad Mumtaz
Hashmi, Advocate Supreme Court.
Khalid Jawed Khan, Advocate Supreme Court.
Ch. Aitzaz Ahsan, Sr. Advocate Supreme Court, assisted by Ms. Zunaira Fayyaz
Siwia, Advocate and Qaiser Nawaz, Advocate.
Assadullah Khan Chamkani, Advocate Supreme Court, assisted by M. Tariq Khan
Hoti, Advocate Supreme Court.
Salahuddin Ahmed, Advocate Supreme Court, assisted by Ehsan Malik and Aman
Aftab, Advocates.
Complainant:
Ahmed Raza Khan Kasuri, Advocate Supreme Court (in person).
For SCBA:
Ali Imran, Advocate Supreme Court.
Dates of hearing: 12th December, 2023, 8th January, 20th, 26th, 27th, 28th
February and 4th March, 2024.
OPINION
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.’
1 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 selfaccountability, 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.
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, subArticles (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.
MWA/R-3/SC Order accordingly.