Thursday, February 25, 2010, Rabi-ul-Awwal 10, 1431 A.H Updated at: 1700
MR JUSTICE DR. NASIM HASSAN SHAH Former Chief Justice of Pakistan - 12th Chief Justice of Pakistan In office April 26, 1993 – April 14, 1994 - Dr. Nasim Hassan Shah in a startling press interview to the daily Jang (August 23, 1996) He did not mince words to indicate the bias of the presiding judge trial court, Maulvi Mushtaq Hussain, who bore personal grudge against Mr. Bhutto. The grudge was that he as Prime Minister, had him superseded by a junior judge while appointing Chief Justice of the Lahore High court. The former Chief Justice has no hesitation in averring that Maulvi Mushtaq Hussain should have avoided naming himself as a member of the trial bench (to maintain the dignity of the court in the principled tradition of justice). It was in this context that during the trial, Maulvi Mushtaq Hussain had made uncalled for personal remarks provoking Bhutto to boycott the proceedings. Dr. Nasim Hassan when confronted by the interviewer admitted that never before in the judicial history of the country any abettor was awarded capital punishment. He further hinted that both General Ziaul Haq and Maulvi Mushtaq had fears that Bhutto’s survival could be risky for them. So he should better be eliminated first and no chances taken. "I am very sorry it had to be done, had to be done".----a belated remorse by the judge who perhaps now suffers pricks. Emphasis by the judge on "had to be done" speaks for itself.
Was Zulfiqar Ali Bhutto's hanging a Judicial Murder?
Courtesy:Dunya News [Private Pakistani TV Channel]
Executive and Judiciary - Chief justice Nasim H. Shah’s favorable tilt towards Muslim League and his antipathy towards Pakistan Peoples Party were well known. He had exchanged harsh words with chief justice Muhammad A. Zullah when later received Benazir at a function when she was opposition leader. He headed the bench which restored Sharif government in 1993. He had been humiliated earlier during Benazir government when Benazir refused to sit on the same table with him. The reason was that Nasim H. Shah was one of the justices who had upheld the death sentence of Benazir’s father Zulfiqar Ali Bhutto in 1979 (Nasim H. Shah was one of the majority justices on the bench which had given a four to three verdict of rejection of appeal of death sentence). Executive and judiciary function in their own spheres but sometimes their interests clash. Executive tries to have some kind of control on the function of judiciary especially when its interests are challenged. Executive tries to influence judiciary through favors in postings, promotions and post-retirement benefits. Troublesome justices are mostly retired using administrative loopholes but occasionally more severe action is taken against the stubborn judge. Former Prime Minister Zulfiqar A. Bhutto was awarded death sentence by Lahore high court for ordering the murder of a political opponent. An appeal against the judgment was filed in the Supreme Court. The initial bench of nine judges (Anwar ul Haq, Muhammad Akram, Dorab Patel, Muhammad Haleem, Nasim Hasan Shah, Ghulam Safdar Shah, Karam Elahi Chauhan, Waheedudin Ahmad and Qaisar Khan) started to hear appeal. During the hearing, Qaisar Khan retired and Waheedudin Ahmad got ill. Remaining seven judges heard the case and rejected the appeal in a four to three decision on February 02, 1979. Civilian leaders have used all available means both fair and foul to prevent encroachment of judiciary which they perceive as their turf or to get desired judgments. In early 1993, relations between Prime Minister Nawaz Sharif and president Ghulam Ishaque Khan deteriorated quite rapidly and Khan was planning to ouster Sharif. Some statements attributed to chief justice Muhammad Afzal Zullah indicated that judiciary may act to counter president’s move. President waited till 18 April 1993; the day of retirement of chief justice. In a very curious development, chief justice on the very day of his retirement was on a plane heading out of country. Justice Nasim Hasan Shah was sworn in as acting chief justice; another curious move as he should have been appointed permanent chief justice. President dropped his guillotine on the same day sending Sharif and assembly packing home. The judicial crisis of 1997 severely damaged country’s image and judiciary’s reputation. A reckless civilian prime minister and his cronies clashed head on with an equally reckless chief justice of the supreme court. A number of judges of supreme court openly rebelled against their own chief justice thus bringing the judiciary to new low levels. The saga of Byzantine intrigues was played at the highest levels making the country a laughing stock. The trouble between judges of supreme court had been brewing over a long time. In 1993, justice Sajjad A. Shah gave the lone dissenting opinion when Supreme Court restored Sharif government by a majority decision. Two judges; Muhammad Rafiq Tarar and Saeeduzzaman Siddiqi asked chief justice Nasim Hasan Shah to take disciplinary action against Sajjad A. Shah for the language he used in his dissenting note. (16) Chief justice didn’t take any action against Sajjad A. Shah but it caused a permanent rift. Supreme Court takes recess during summer vacations and if chief justice is out of country during recess it is not necessary to appoint an acting chief justice. In the summer of 1997, chief justice Sajjad A. Shah proceeded to an overseas trip. Incidentally second senior most justice Ajmal Mian was also abroad. Justice Saeeduzaman Siddiqi was in Islamabad when he was told that chief justice had left the country. He adjourned the proceedings, consulted lawyers and then called all supreme court registries to stop working. He declared that there was a constitutional crisis since no acting chief justice was appointed. He sent a letter to the federal government advising it to issue notification for appointment of acting chief justice. As he was the next senior judge, he was appointed acting chief justice. This caused a lot of bad blood between Saeeduzaman Siddiqi and Sajjad A. Shah and on his return Sajjad A. Shah conveyed his disapproval in writing. Sometimes people occupying high offices act in a childish manner embarrassing not only the high office but also the country. In August 1997, chief justice recommended elevation of five judges to supreme court without consulting with government. Government in return issued an order duly signed by the president reducing the strength of the supreme court from seventeen to twelve. Few days later chief justice presiding a three member bench suspended the notification and a couple of days later government withdrew the notification. Supreme Court justices rather than brainstorming about legal issues clashed with each other about the color of the Supreme Court flag. One chief justice arranged for the inauguration of the incomplete building of the new Supreme Court because he wanted to be in the limelight before his retirement. A number of justices opposed this ridiculous idea and they were not invited for the ceremony. When chief justice Muhammad Afzal Zullah received opposition leader Benazir Bhutto in a ceremony, several of his brother judges were furious and harsh words were exchanged between Zullah and justice Nasim Hasan Shah. REFERENCE: Judicial Jitters in Pakistan: A Scholarly & Historical Perspective Hamid Hussain Defence Journal, June 2007 http://watandost.blogspot.com/2007/05/judicial-jitters-in-pakistan-scholarly.html
unbiased retired judges
* Justice (r) Fakhrunnisa Khokhar says judges responsible for
decision should seek pardon from nation
LAHORE: Constitutional experts have termed the execution of former prime minister Zulfikar Ali Bhutto (ZAB) illegal, and a judicial murder, and added that the judges – who were still alive –ordering the execution should apologise to the nation over their ruling. On April 4, 1979, Bhutto was hanged after the Lahore High Court ordered his execution on charges under Section 109 of the Pakistan Penal Code. The experts said several judges of the same bench had conceded that the conviction was awarded because of political pressure, and was against the law. Justice (r) Malik Saeed Hassan said various illegalities had been committed while giving the judgment. He said the then chief justice of the Lahore High Court, Maulvi Mushtaq Hussain, should not have been in the bench, as Bhutto objected his participation. When ZAB appealed to the Supreme Court against the verdict of the LHC – a bench of nine judges, consisting of Justice Anwarul Haq, Justice Muhammad Akram, Justice Dorab Patel, Justice Abdul Haleem, Justice Nasim Hasan Shah, Justice Ghulam Safdar Shah, Justice Karam Elahi Chauhan, Justice Waheedudin Ahmad and Justice Qaisar Khan – was formed. During the hearing, Justice Qaisar Khan retired and Justice Waheedudin fell sick. The remaining seven judges heard the case and rejected the appeal in a four to three decision on February 2, 1979. Justice (r) Ghulam Safdar Shah was one of the dissenting judges (the other two were Abdul Halim and Dorab Patel).
Inquiry: Justice (r) Wajihuddin, son of Justice Waheeduddin, said a judicial inquiry should be held by a panel of unbiased retired judges of the superior judiciary, which should be constituted with the consent of lawyers and the civil society, and not by the government. He said the panel should give a verdict within two months after recoding statements by every person who wanted to present evidence. He said the outcome of the whole exercise would surely give relief to the victim’s family. Advocate Khurram Latif Khan Khosa criticised Bhutto’s trial by the high court, and said the case should have been heard by a sessions court but a five-member bench of the LHC held the trial allegedly on the directions of Ziaul Haq. He also condemned the Supreme Court’s bench for not waiting for its eighth member, Justice (r) Waheeduddin, for hearing ZAB’s appeal against his conviction. The judge was against Bhutto’s conviction, but he went on a sick leave for six to eight weeks, he said. He said the parliament should declare the Supreme Court decision in Bhutto’s case null and void after an open discussion. Pardon: Justice (r) Fakhrunnisa Khokhar said the execution of ZAB was a judicial murder, and the judgment of the court was a black law. She said the judges responsible for the decision should beg pardon from the nation and declare ZAB innocent. Justice (r) Sayed Zahid Bukhari said Bhutto was only hanged for allegedly saying ‘fix up’ Nawab Muhammad Ahmad Khan, father of Bhutto’s staunch opponent Advocate Ahmed Raza Qasuri. He said the court interpreted ‘fix up’ as an alleged direction to assassinate, and ordered his execution. Had the original bench of nine judges been maintained, the verdict would have been 5-4 in Bhutto’s favour, he said.
After the execution, a statement by Justice (r) Ghulam Safdar Shah gave the impression that he would have accepted the argument of ZAB’s defence team. This caused great apprehension and General Zia ordered the Federal Investigations Agency (FIA) director to inquire about Safdar Shah’s credentials. The government found many discrepancies and approached the chief justice for action against the judge. A case was referred to the Supreme Judicial Council (SJC) and Justice Safdar Shah was forced to resign, and hounded out of the country. REFERENCE: Experts term ZA Bhutto’s execution a judicial murder By Rana Tanveer Saturday, April 04, 2009 http://www.dailytimes.com.pk/default.asp?page=2009\04\04\story_4-4-2009_pg7_23