P L D 2025 Supreme Court 737 (PLP)

SYED MANSOOR ALI SHAH, J.

In the short opinion dated 6 March 2024, we unanimously opined that '[i]n its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case'. Furthermore, it was observed that '[t]he advisory jurisdiction under Article 186 of the Constitution requires this Court to render an opinion on any question of law of public importance referred by the President', and that in the present Reference, 'the question of law, in essence, is whether the requirements of due process and fair trial were complied with in the urder 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)'. The reason for so restricting the scope of inquiry in the present Reference was grounded in the settled jurisprudence on the advisory jurisdiction of this Court, which holds that in its advisory jurisdiction, this Court cannot undertake a fact-finding inquiry, adjudicate a lis between parties or review its judgment rendered in its adjudicatory jurisdiction.1

2. I have gone through the detailed opinion authored by the Chief Justice and find that certain discussions and observations made therein, in my view, verge on reappraisal of the evidence in a case that has already been finally decided by this Court in its adjudicatory jurisdiction, thus going beyond the scope of inquiry set in the short opinion. With respect, I find myself unable to associate with such discussions and observations. Therefore, I add this note to briefly underscore the violations of the fundamental right to procedural due process and fair trial that occurred in the murder trial of Mr. Bhutto, as per the question of law taken up and answered in the short opinion. The facts forming the background of the present Presidential Reference and the questions of law referred to this Court for its advisory opinion have been comprehensively mentioned and discussed in the detailed opinion authored by the Chief Justice, and therefore, need no reiteration. While addressing the said violations of procedural due process and fair trial, I have drawn support from the theoretical framework of "transitional justice", which is employed to remedy the injustice caused by "political trials."

3. Around the world, authoritarian regimes use "political trials", writes Shen-Bayh,2 to legitimize their seizures of power, delegitimize opponents and consolidate authority. A political trial is one whose disposition-the determination of guilt or innocence, followed by punishment

depends primarily on the accused's professed attitudes and activities in relation to the ruling regime.3 In such trials, the legal process is not employed to ensure justice or minimize errors but rather to discredit and punish political opponents. These trials often rely heavily on statements obtained during investigations from former allies or associates of the accused, who may be coerced or induced to turn against the accused. Such evidence, which would usually hold limited weight in a fair trial, becomes a convenient basis for conviction in a political trial, supporting the alleged criminality of the accused. Political trials thus serve as a potent and notorious "judicial tool" for authoritarian regimes, aimed at suppressing political resistance and eliminating opposition.4 These trials frequently violate due process and fair trial requirements to produce politically desirable outcomes.

4. In post-authoritarian regimes, "transitional justice" forms a crucial part of the transition from repressive authoritarianism to constitutional democracy. It involves uncovering the crimes of former authoritarian rulers and holding them accountable for past human rights violations, including unlawful detentions, imprisonments and politically motivated trials. Transitional justice, however, is not about vengeance or retribution but about a principled approach to healing and justice. Courts globally have affirmed that they must address the demands of victims for truth and justice while laying the foundation for societal reconciliation and systemic transformation. This dual focus on accountability and restoration is what sets transitional justice apart from ordinary judicial processes. Transitional justice, therefore, encompasses a set of methods through which states that have experienced fundamental human rights violations seek to distance themselves from that past and move forward in a manner consistent with the need for justice for those who have suffered from these violations.5 These methods of transitional justice include truth and reconciliation commissions and the criminal prosecution of former authoritarian rulers.6 Furthermore, holding both executive and judicial institutions accountable for their actions during the period of authoritarian repression, as well as exonerating past victims of state repression and miscarriages of justice, is essential for facilitating the transition of these state institutions toward greater respect for, and promotion of, the rule of law and fundamental human rights.7

5. Transitional justice serves as a vital tool for addressing injustices perpetrated under authoritarian regimes. It encompasses broader mechanisms, including revisiting flawed judicial decisions made during such regimes through compromising due process and fair trial requirements. This process helps restore fairness and legitimacy in the legal system. By revisiting and rendering opinions on the fairness and legitimacy of such decisions, the Court delivers justice to affected individuals and sends a powerful message: judicial complicity with authoritarianism will not be shielded from scrutiny. This approach reinforces judicial independence, ensures accountability for regime-orchestrated injustices, and establishes a precedent for discrediting flawed judicial decisions rendered under oppressive regimes. Such actions underscore the judiciary's commitment to constitutional principles, reminding past and future judges of their duties and the need to resist authoritarian pressure. Ultimately, this helps safeguard democracy, the rule of law and human rights.8

6. The silent application of transitional justice in Pakistan, aside from the present Reference, can also be found in several notable cases. These include the case upholding the conviction and sentence of General Pervez Musharraf,9 the case of the Sindh High Court Bar Association,10 which declared the proclamation of emergency and promulgation of PCO by General Pervez Musharraf unconstitutional, and the case of Nawaz Sharif,11 another former Prime Minister of Pakistan, which reversed his conviction in the Army Chief's Aircraft Hijacking case. These cases demonstrate the importance of ensuring accountability for both executive and judicial officeholders for their actions during periods of authoritarian rule. They also serve as a reminder that transitional justice will remain a vital tool in addressing any future instances of authoritarianism and political trials.

7. The murder trial of Mr. Zulfiqar Ali Bhutto, a former Prime Minister of Pakistan, serves as a classic example of a political trial, illustrating how such trials can be manipulated to advance authoritarian designs. Bhutto's trial effectively served as a potent and notorious "judicial tool" for strengthening General Zia's authoritarian regime, aimed at suppressing political resistance, eliminating opposition and ensuring the consolidation of power. It helped to entrench the repressive military authoritarian regime under which it was conducted. Instead of independent, substantive evidence, the prosecution relied heavily on confessional statements given by, or procured from, Bhutto's former associates-accomplices turned approvers.

8. Likewise, several violations of procedural due process and fair trial requirements were committed to achieve politically desirable outcomes. These included the unauthorized reinvestigation of the case, which had previously been closed by an order of the Magistrate concerned; the surreptitious and unlawful transfer of the investigation from the regular investigating agency (Provincial Police) to the Federal Investigation Agency; the transfer of the trial from the regular trial court (Sessions Court) to the High Court without adherence to legal requirements; the unjustified cancellation of bail previously granted to Bhutto by a Single Bench of the Lahore High Court; the determination of Bhutto's recusal application by judges other than the one whose recusal was sought, without addressing the instances cited to demonstrate the bias and prejudice of the judge (Justice Maulvi Mushtaq); the composition of the trial and appellate court benches, both of which were headed by judges (Justice Maulvi Mushtaq and Justice Anwar-ul-Haq) who harboured personal grievances against Bhutto due to being passed over for appointments as Chief Justice of their respective courts-the Lahore High Court (trial court) and the Supreme Court (appellate court); and the unwarranted reconstitution of the appellate court bench from nine judges to seven judges. It is an established principle that justice must not only be done but must also manifestly and undoubtedly be seen to be done.12 The infringement of this fundamental principle also constitutes a violation of due process and fair trial requirements. Because of these glaring violations, Bhutto is rightly regarded as the victim of "unfair judicial proceedings" and "legalized political murder"

also referred to as "judicial murder".13 Both the obvious procedural irregularities and illegalities in the reinvestigation and trial, as well as the biased composition of the trial and appellate court benches, rendered the verdict illegitimate and undermined the independence and impartiality of the superior courts (High Courts and the Supreme Court) for years to come.14

9. In fulfilment of our duty under the principle of transitional justice, and with the aim of distancing ourselves from past violations of fundamental human rights while moving forward in a manner consistent with justice for those who suffered from these violations, we explored all possible options within the existing constitutional and legal framework. The Constitution and the law provide no mechanism to set aside the judgment by which Bhutto was convicted and sentenced, as that judgment attained finality following the dismissal of the review petition by this Court. Furthermore, in its advisory jurisdiction under Article 186 of the Constitution, this Court lacks the authority to reappraise the evidence or overturn a final decision. However, after carefully examining the record of the reinvestigation and trial proceedings, we concluded-and so stated- that the trial proceedings in the Lahore High Court and the appellate proceedings in the Supreme Court of Pakistan did not meet the requirements of the Fundamental Right to a fair trial and due process as enshrined in Articles 4 and 9 of the Constitution,15 which were later reinforced as a separate and independent Fundamental Right under Article 10A of the Constitution. Our expression of this opinion reflects a commitment to confront past missteps and fallibilities during an authoritarian regime with humility, embodying a spirit of self-accountability and underscoring our dedication to ensuring that transitional justice shall be served with unwavering integrity and fidelity to the Constitution and the law.

10. In the end it needs to be said that the judiciary is a resilient institution, endowed with the remarkable ability to recover and rise above the shadows of authoritarianism. This resilience is not accidental but is deeply rooted in the courage and integrity of those judges who refuse to compromise and have the courage to speak truth to power. In the annals of judicial history, there are turning points when the judiciary is bold enough to confront its past mistakes and chart a course for a better future. Today marks one such moment-a testament to the judiciary's unwavering commitment to justice and the rule of law.

11. The independence of the judiciary is the cornerstone of justice, and its true test lies in a judge's ability to stand firm under authoritarian regimes. The essence of judicial independence is not found in passivity or retrospective correction but in resisting authoritarian overreach at the time it occurs. Transitional justice, while important, should serve as a sobering reminder to judges: justice delayed by decades is justice diminished. Judges must act as the first and last line of defence for the rule of law, refusing to compromise even under duress, so that societies do not have to rely on transitional processes to correct the damage inflicted by judicial capitulation. Let the lesson of transitional justice be clearjudges must uphold their oaths with courage in the face of oppression, for only then can the judiciary truly safeguard democracy and the rights of the people. Transitional justice, however, often becomes necessary because, during oppressive rule, some judges fail to uphold their constitutional duty, succumbing to the pressure of illegitimate authority. This failure not only enables violations of due process and fair trial rights but also erodes public trust in the judiciary.

12. Judges serving under authoritarian regimes must remember that their true strength lies not in holding office but in steadfastly upholding their independence and principles. Justice Dorab Patel exemplified this ideal when he courageously dissented in the Bhutto case, acquitting Mr. Bhutto of the charges, and later refused to take the oath under the Provisional Constitutional Order (PCO) promulgated by General Zia, thereby relinquishing his impending eight-year tenure as Chief Justice of Pakistan. His actions remind us that losing a position is a small sacrifice compared to compromising one's integrity or leaving behind a legacy of submission or compromise. Judges must always bear in mind that a judge's valour is measured by his courage to resist external pressures, stand firm against interference and safeguard the independence of the judiciary without fear or favour. Delay in confronting authoritarian inroads can prove fatal to the rule of law-such incursions must be resisted and rectified immediately, for the judiciary's role is to defend justice, not enable its erosion. I find no more suitable words to close this note than those of Bhutto himself, reflecting both a powerful critique of authoritarianism and a firm belief in the judiciary's essential role as a guardian of democracy. He wrote: An independent Judiciary is the antithesis of Martial Law Anindependent Judiciary can only function under the umbrella of the Constitution and not under the shadow of the gun .. An independent Judiciary exists side by side with an executive chosen by the people and a legislature elected by them. But the people's Executive is in jail. The assemblies ... have become as silent as the graveyards. Can one flower flourish in a garden turned into a desert?16 Sd/- Syed Mansoor Ali Shah Judge YAHYA AFRIDI, J.

I have had the privilege of going through the detailed opinion of Justice Qazi Faez Isa, the Chief Justice, as well as the additional notes of Justice Syed Mansoor Ali Shah and Justice Syed Hasan Azhar Rizvi, in furtherance to the unanimous short opinion of this Court dated 06.03.2024 ("Short Opinion").

2. I find myself in agreement with the observation of Justice Syed Mansoor Ali Shah that certain portions of the detailed opinion of the Chief Justice verge on reappraisal of evidence in a case that has already been finally decided by this Court in its adjudicatory jurisdiction, and thus, the same exceed the scope of the inquiry delineated in the Short Opinion that '[i]n its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case'.

3. As to the question of law, whether the requirements of due process and fair trial were complied with in the murder trial of Mr. Zulfiqar Ali Bhutto, the former Prime Minister of Pakistan, by the trial court (the Lahore High Court) and the appellate court (the Supreme Court), I fully concur with the observations given in paragraphs No. 23 to 25, 31, 58 to 64 and 67 to 76 of the detailed opinion rendered by the Chief Justice, as well as paragraph No. 8 of the note authored by Justice Syed Mansoor Ali Shah, which highlight the violations of procedural due process and fair trial requirements.

4. I also record my concurrence, for the reasons given therein, with the view of Justice Syed Hasan Azhar Rizvi that the observation of the Chief Justice - that Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Code of Criminal Procedure, 1898 do not permit the High Court to conduct a murder trial - is untenable, as it is founded on a misconception of these provisions. I further agree with the opinion of Justice Syed Hasan Azhar Rizvi that Chapter XXVII of the Code of Criminal Procedure, 1898 does not extend to death sentences passed by the High Court in the exercise of its original criminal jurisdiction. Consequently, I respectfully differ from the view of the Chief Justice that these provisions necessitate confirmation of such sentences or lead to the forfeiture of the right of appeal, as such an interpretation is contrary to the established legal framework.

5. It is, however, very pertinent to note that the present reference was avowedly filed against the backdrop of the restoration of the judiciary and the proactive role of the restored judiciary in addressing the matters of public importance. In this context, the reference drew attention, inter alia, to the 'admission' of former Chief Justice of Pakistan, late Justice Nasim Hasan Shah, regarding external pressures in the decision of the appeal of Mr. Zulfiqar Ali Bhutto, which the reference described as a regrettable chapter in judicial history of our nation.

6. In consideration of the above, I am of the view that this reference might never have come before us but for the events recounted and the facts disclosed in the interview and autobiography of Justice Nasim Hasan Shah. Accordingly, it is both relevant and necessary to address certain aspects of that interview and autobiography, which raise significant concerns regarding the due process and fairness of the trial of Mr. Zulfiqar Ali Bhutto, as discussed in the following paragraphs.

7. In the Supreme Court judgement, Justice Nasim Hasan Shah rejected the contention that the trial of Mr. Zulfiqar Ali Bhutto was vitiated by bias on the part of Justice Maulvi Mushtaq Hussain, who presided over the Lahore High Court Bench that conducted the trial. However, this stance stands in direct contradiction to his later remarks in an interview with Iftikhar Ahmad for the program Jawab Deyh. In the aforesaid interview, Justice Nasim Hasan Shah described Justice Maulvi Mushtaq Hussain as an overt enemy of Mr. Zulfiqar Ali Bhutto, expressing that he should not have been part of the Lahore High Court Bench. In fact, the presence of Justice Maulvi Mushtaq Hussain on the Lahore High Court Bench was referred to as "Ziadati", a term that, within the context of the trial, could only be interpreted as bias. This clear contradiction in the views of Justice Nasim Hasan Shah raises concerns about the evaluation, in the appeal, of the question of bias on the part of Justice Maulvi Mushtaq Hussain.

8. Justice Nasim Hasan Shah revealed certain facts in his autobiography Memoirs and Reflections, which suggest that his inclusion in the Bench for the purpose of hearing the appeal of Mr. Bhutto was orchestrated by the Attorney General Sharifuddin Pirzada and Justice Maulvi Mushtaq Hussain. Such manipulation of the Bench composition undermines judicial impartiality and raises serious concerns about the fairness of the proceedings. It also shows that Justice Maulvi Mushtaq Hussain pursued the matter zealously even after the High Court had decided the case and the appeal was pending before the Supreme Court, despite his role having concluded with the decision of the High Court. This unwarranted involvement after conviction blurred the boundaries of judicial propriety and further eroded confidence in the impartiality of the appellate process.

9. The above account of events effectively undermines the duly expected impartiality of judicial decision-making in the trial of Mr. Zulfiqar Ali Bhutto. Such events, if left unaddressed, risk eroding public confidence in the fairness of the judicial process.

10. The extraordinary political climate of the time and the pressures inherent in such an environment appear to have influenced the course of justice in a manner inconsistent with the ideals of judicial independence. It is a sobering reminder of how deviations from constitutional governance can exert undue influence on judicial proceedings in politically charged cases, undermining the ideals of impartiality and due process in such exceptional circumstances. This also accentuates the importance of recognizing the courageous dissents of Justice Dorab Patel, Justice Muhammad Haleem and Justice G. Safdar Shah who stood their ground despite the prevailing atmosphere. Their dissents, even if unsuccessful in altering the outcome, remain a testament to the enduring principles of judicial integrity and impartiality, underscoring the value of an independent judiciary committed to the rule of law. Opinion

11. In light of the foregoing discussion, I am of the considered opinion that the requirements of due process and fair trial were not complied with in the murder trial of Mr. Zulfiqar Ali Bhutto by the trial court and the appellate court. Sd/- Yahya Afridi Judge SYED HASAN AZHAR RIZVI, J.

Before I express my concurrence with the detailed opinion authored by Mr. Justice Qazi Faez Isa, Hon'ble Chief Justice of Pakistan, I find it imperative to pen down a few additional observations that resonate with the conclusions reached therein. While I fully agree with the reasoning except those mentioned in para 26 to 30 and the outcome of the detailed opinion, the significance of the issues presented before this Court compels me to elaborate on certain aspects that reinforce our collective judicial philosophy. The case at hand touches upon the intricate application of legal principles and reflects the broader constitutional ethos that guides our jurisprudence. It is with a deep sense of responsibility and a commitment to the rule of law that I concur with the conclusion of the detailed opinion. However, I believe that certain nuances warrant further emphasis to underscore the contours of our legal landscape and to provide clarity for future jurisprudence. In aligning with the detailed opinion, I am mindful of the weighty considerations that have been accurately analyzed by the Chief Justice. The legal discourse presented therein is both thorough and compelling, leaving little room for dissent. Yet, it is the hallmark of a robust judicial system to allow for the expression of supplementary views that may fortify the decision's legal foundation and contribute to the richness of our legal tradition. Therefore, in the spirit of judicial comity and to enhance the legal reasoning that forms the crux of opinion by this Court, I offer the following observations.

2. Before delving into the intricate details of the case, let us first provide a concise overview of the key facts and events that set the stage for this reference. Briefly, Mr. Ahmad Raza Kasuri got registered an FIR No.402/74 dated 11.11.1974 for the offences under section 302/307 (now 324) of the Pakistan Penal Code, 1860 ('P.P.C.'), registered at Police Station ('P.S.') Ichhra, District Lahore against some unknown accused persons for the murder of his father Mr. Muhammad Ahmad Khan ('the deceased'). Later on, seven persons (Mr. Zulfiqar Ali Bhutto ('Mr. Bhutto'), Masood Mahmood, Director General Federal Security Force ('FSF'), Mian Muhammad Abbas, Director FSF, Ghulam Hussain, Inspector FSF, Ghulam Mustafa, Inspector FSF, Arshad Iqbal, Sub-Inspector FSF and Iftikhar Ahmad, Assistant Sub-Inspector (FSF) were nominated and the offences under sections 120-B/109 were also added in this case. A Full Court comprising five judges of the High Court was constituted for the trial of this case. After the trial, all the accused persons (except Masood Mahmood and Ghulam Hussain) were convicted and sentenced to death, along with other punishments, as per the judgment dated 18.03.1978, reported as PLD 1978 Lah. 523, pp. 618-622. A criminal appeal filed against the decision of the High Court was dismissed by this Court vide judgment dated 06.02.1979, reported as PLD 1979 SC

53. The review petition filed by Mr. Bhutto was also dismissed by this Court vide judgment dated 24.03.1979, reported as PLD 1979 SC

741. Finally, Mr. Bhutto was executed on 04.04.1979.

3. Since Mr. Bhutto's execution, one of Pakistan's major political parties, the Pakistan People's Party (PPP), has consistently questioned the fairness of the judicial process, alleging that it was influenced by the then-military dictatorship as well as political factors and as such lacked impartiality. The party views the trial of Mr. Bhutto and his subsequent execution as a miscarriage of justice, which remains a sensitive issue in Pakistani politics. In 2011, this longstanding grievance prompted the then-President of Pakistan, Asif Ali Zardari ('the President'), who was also Bhutto's son-in-law, to file a presidential reference under Article 186 of the Constitution of the Islamic Republic of Pakistan ('the Constitution') to seek the opinion of the Court on the legality and fairness of the original proceedings that led to Bhutto's death sentence. The reference aimed to address and rectify any historical injustices and to restore public confidence in the judiciary's impartiality. The President sought the opinion of the Court on the following questions of law:

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?

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 effects and consequences?

3. 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?

4. Whether the decision in the case of the 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 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.

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?

4. On 06.03.2024, we unanimously rendered our short opinion (with reasons to be recorded later) on the aforementioned questions, whereby we refused to provide any assistance/ opinion on questions Nos. 2 and

4. However, as regards questions Nos. 1, 3, and 5, we opined as follows: Opinion on Question No.1 "(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." Opinion on Questions Nos.3 and 5 "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."

5. At the beginning of my note, I mentioned that, in principle, I concur with the conclusion reached in the detailed opinion rendered by the Chief Justice. However, certain areas related to constitutional and legal lapses in the case of Mr. Bhutto require further consideration and explanation keeping in view the scope and extent of authority of this Court in the advisory jurisdiction. Moreover, I disagree with specific observations made by the Chief Justice, as outlined in paragraphs 26 to 30 of the detailed opinion. Therefore, I will first highlight and explain the major constitutional and legal lapses that undermined the proceedings of trial of Mr. Bhutto before the High Court as well as the appeal filed by him before the Supreme Court of Pakistan, causing them to fail to meet the requirements of a fair trial and due process, as enshrined in Articles 4 and 9 of the Constitution. Secondly, I, with respect, outline the reasons for my disagreement with certain observations made by the Chief Justice in the detailed opinion. To avoid repetition, I will refer to the arguments presented by the legal representatives and counsel as outlined in the detailed opinion, except for those necessary for my analysis. Right to due process and fair trial

6. At the time of the trial of Mr. Bhutto, the right to due process and a fair trial was not explicitly enshrined as a fundamental right in the Constitution. However, these rights have now been provided under Article 10-A, introduced by the Constitution (Eighteenth Amendment) Act, 2010. Even before the addition of this article to the Constitution, the right to a fair trial and due process was well-entrenched in our jurisprudence and considered as a part of the right of access to justice enshrined in the Constitution under Articles 4 and

9. Article 4 of the Constitution states that every individual has the right to be dealt with in accordance with the law, highlighting the necessity of legal processes that are fair and just. Article 9 further reinforces this by asserting that no person shall be deprived of life or liberty except in accordance with the law. These provisions collectively emphasized the importance of lawful procedures and the protection of individual rights, even before the explicit recognition of due process and fair trial in the Constitution. Thus, from the very beginning, this Court has stressed the importance of fair criminal trials to protect the rights and interests of both the victim and the accused. A fair trial ensures that the accused has the opportunity to present a defence and challenge the evidence, while the victim's rights to be heard and to seek justice are upheld. By maintaining impartiality and balancing the interests of both parties, this Court strives to deliver justice and maintain public confidence in the judicial system. For instance, this Court, in the case of Noor Ahmad v. The State (PLD 1964 SC 120), while shedding light on the conduct of criminal trials, observed that it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and that anything likely to cause serious embarrassment to the accused in the conduct of their defence should be avoided. The relevant paragraph is quoted below for ease of reference:" 'We are also of the same view. Even though sections 235 and 239 of the Criminal Procedure Code give a discretion to the Court to try certain persons and or offences jointly yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial which must be kept in view when deciding as to whether the discretion should in given in case be exercised or not. In a criminal trial, as we have already observed, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause nay serous embarrassment to him in the conduct of his defence should be avoided. Thus, in the present case, it seems to us that whether a collision in such circumstances constituted one transaction or not there should not have been a joint trail of the appellants before us for more than one reason Firstly because the accusations made against them did not allege any kind of joint or concerted action nor disclosed any causal connection between the respective acts of the appellants....'

7. Later, in the case of Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 SC 66), this Court delved into the concept of 'due process' and on pages 109, 119, and 120 of the judgment provided a detailed explanation of what 'due process' entails. The Court emphasized the importance of legal procedures that ensure fairness, justice, and the protection of individual rights. The relevant paras of the judgment are reproduced hereunder for ease of reference: 'Article 4 may be compared 'with the due process of law in the American Constitution. The case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, supports this view. In the case under report Article 2 of the 1962 Constitution which is corresponding to Article 4 of the Constitution was considered and the Court observed as follows:- "The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner." Frontier Crimes Regulation was an "existing law" under Article 225 of the 1962 Constitution and Article 280 of the Interim Constitution. It continues to be an "existing law" under Article 268 of the present Constitution. The regulation has, therefore, always been and still is an existing law operating subject to the Constitution of the day. Since the continued operation of the Frontier Crimes Regulation is subject to the Constitution a question arises whether the Regulation is `law' within the meaning of Articles 4 and 9 of the Constitution. In the case reported in PLD 1969 SC 14, this Court has had occasion to observe that "law" in Article 2 of the 1962 Constitution (corresponding to Article 4 of the Constitution) is as comprehensive as the American "due process of law" clause in a new garb. A reference, therefore, to the views of the American jurists as contained in 16 American Jurisprudence will, be helpful to the discovery of the true meaning of the word "law" as contained in the said two Articles of the Constitution. The following are the extracts from that book:-- Due process of law' must be understood to mean law in the regular course of administration through Courts of justice (Vide 16 American Jurisprudence 2d paragraph 546). It means law according to the settled course of judicial proceedings or in accordance with natural, inherent, and fundamental principles of justice, enforceable in the usual modes established in the administration of government with respect to kindred matters. A general law administered in its legal course according to the form of procedure suitable and proper to the nature of the case, conformable to, the fundamental rules of right and affecting all persons alike, is `due process of law'. Due process has to do with the denial of fundamental fairness shocking to the universal sense of justice; it deals neither with power nor with jurisdiction, but with their exercise. 'Law embraces all legal and equitable rules defining human rights and duties and providing for their enforcement, not only as between man and man, but also between the State and its citizens. (Vide 16 American Jurisprudence 2d paragraph 546). It is a general public law of the land (paragraph 547). It is the law that operates on all persons alike and do not subject the individual to the arbitrary exercise of the powers of Government. Under the 'due process of law' no change in procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action which relate to process of law, protect the citizen in his private right and guard him against the arbitrary action of Government (paragraph 549). Substantive due process has been roughly defined as the constitutional guarantee that no person shall be deprived of his life, liberty, or property for arbitrary reasons, such deprivation being constitutionally supportable only if the conduct from which the deprivation follows is prescribed by reasonable Legislation (i.e. the Legislation the enactment of which is within the scope of legislative authority) reasonably applied (that is, for a purpose consonant with the purpose of the Legislation itself). To the extent that arbitrary action involves procedural arbitrariness, such action is, of course, barred by the principles of due process. In general terms it has been stated that the requirement of due process of law may be satisfied if there is no unauthorised and merely arbitrary exercise of the powers of Government to the detriment of the people or of some of them. It has been authoritatively stated that the right of a citizen to due process of law must rest upon a basis more substantial than favour or discretion, and in many instances statutes have been held unconstitutional on the ground that they operated to vest in the Courts or in other officials an arbitrary power over matters protected by the Constitution (paragraph 550)." Applying the concept of `law' as contained in the extracts just quoted, section 11 of the Frontier Crimes Regulation (hereinafter called the F. C. R. which empowers the Deputy Commissioner to refer the determination of the guilt or otherwise of a person to the "Council of Elders," does not seem to me to be "law" as contemplated in Articles 4 and 9 of the Constitution. The section gives unfettered powers to the Deputy Commissioner to refer the said question for decision to a Council of Elders, if he thinks it inexpedient that the matter should be determined by any Court of the classes prescribed in section 6 of the Code of Criminal Procedure. No guidance, at all, has been laid down in what circumstances the reference to the Council of Elders should be made. No rule of procedure or evidence has been prescribed for a proceeding before such Council. The Council is not prevented from adopting methods which are arbitrary and inconsistent with reason and the civilised decencies. The section has nothing to do with the regular course of administration through Courts of justice, and does not exclude arbitrary action involving procedural arbitrariness. It constitutes a denial of fundamental fairness shocking to universal sense of justice.'

8. In "Constitution of the Islamic Republic of Pakistan: A Commentary on the Constitution of Pakistan, 1962," by Muhammad Munir, former Chief Justice of Pakistan, it is mentioned on page 197 that in a criminal trial, an accused person has the following important rights under the general law: '

1. The right to know before the trial the charge and the evidence against him;

2. The right to cross-examine the prosecution witnesses;

3. The right to produce evidence in defence;

4. The right to appeal or to apply for revision;

5. The right to be represented by counsel;

6. The right to have the case decided by the Judge who heard the evidence;

7. The right to trial by jury or with the aid of assessors;

8. The right to certain presumptions and defences; and

9. The right to apply for transfer of the case to another Court.' The above rights were approvingly referred to and endorsed by a five-member bench of this Court in the case of Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506). In this case, the Court, with respect to the above list of rights, observed that the rights (except the right mentioned at serial No.7 which is no longer available in Pakistan) enumerated by Mr. Munir are clearly available in a trial even by a Court Martial. HIGH COURT AS A COURT OF ORIGINAL CRIMINAL JURISDICTION

9. In our country, the Code of Criminal Procedure, 1898 ('Cr.P.C.'), as the general law of the land, governs the procedure for conducting criminal trials in all criminal courts. Even where special criminal laws are silent on certain matters, the courts take guidance from and follow the principles laid down in the Cr.P.C. Undoubtedly, under the scheme of the Cr.P.C., the High Courts fall within the category of Criminal Courts and can try any offence under the P.P.C. A detailed procedure for trial before the High Court has been outlined in Chapter XXII-A of the Cr.P.C. For a better understanding of the above legal position, the relevant provisions of the Cr.P.C. (as existed at the time of the trial of Mr. Bhutto) are discussed below: Section 6, Cr.P.C. provides the different classes of Criminal Court and Magistrates as follows: "

6. Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan, namely: - (I) Courts of Session; (II) ***1 (III) Magistrate of the first class: (IV) Magistrate of the second class; (V) Magistrate of the third class." Emphasis supplied. Section 28, Cr.P.C. states about the courts, competent to try offences under the P.P.C in the following words: "

28. Offences under Penal Code: Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried- (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable." Emphasis supplied. Section 190, Cr.P.C. prescribes a mode for taking cognizance of an offence under P.P.C. as follows: '

190. Cognizance of offences by Magistrates. (1) Except as hereinafter provided, any District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Sessions for trial. (3) A Magistrate taking cognizance of an offence under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.' Emphasis supplied. Section 193, Cr.P.C. mandates that the Court of Sessions is not authorized to take cognizance of any offence as a court of original jurisdiction unless the case has been sent to it under section 190(3) supra. This provision of law is also reproduced hereunder for ease of reference: '

193. Cognizance of offence by Courts of Sessions. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3). (2) Additional Sessions Judges and Assistant Sessions Judges shall tray such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial.' Emphasis supplied. Section 194, Cr.P.C. provides for the taking of cognizance of offences by the High Court as follows- '

194. Cognizance of offences by High Court: (1) The High Court may take cognizance of any offence in manner hereinafter provided. Nothing herein contained shall be deemed to affect the provisions of any Letters Patent or Order by which a High Court is constituted or continued, or any other provision of this Code. (2) (a) Notwithstanding anything in this Code contained the Provincial Government, exhibit to the High Court, against persons subject to the jurisdiction of the High Court, information for all purposes for which Her Majesty's Attorney-General may exhibit informations on behalf of the Crown in the High Court of Justice in England. (b) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar informations filed by Her Majesty\s Attorney-General so far as the circumstances of the case and the practice and procedure of the said High Court will admit. (c) All fines, penalties, forfeitures, debts and sums of money recorded or levied under or by virtue of any such information shall form part of the revenues of the Province.' Emphasis supplied.

10. As per the mandate of section 28, Cr.P.C., the High Court and the Court of Session have concurrent jurisdiction along with subordinate courts to try offences under the P.P.C. The Court of Session, unlike the High Court, is not a court of original criminal jurisdiction. As section 193 of the Cr.P.C. places a complete and clear bar on taking cognizance of any offence by the Court of Session in its original jurisdiction unless the case is sent to it by a Magistrate under section 190(3), Cr.P.C. Section 190(3), Cr.P.C., prescribes a mode of transmitting criminal cases (exclusively triable by the Court of Session) by a Magistrate after taking its cognizance under section 190(1) of the Cr.P.C. to the Court of Session, without recording evidence, for trial. It may be noted that the Magistrate taking cognizance of the offence will decide the forum competent to try the offence keeping in view the provision of section 30 as well as Schedule II to the Cr.P.C. No departure from this procedure ordinarily is possible. A perusal of Column 8 of Schedule II, Cr.P.C., indicates that the High Court is not mentioned as one of the courts competent to try offences under the P.P.C. Under this column, either the offences are triable by the Court of Session or by a Magistrate. However, Section 194 of the Cr.P.C. authorizes the High Court to directly take cognizance of any offence under the P.P.C., even though the High Court is not mentioned in Column 8 of Schedule II of the Cr.P.C. as a Court competent to try any offence. The above-stated position was quite different before the promulgation of the Law Reforms Ordinance, 1972 whereby the words appearing in section 194(1) "upon a commitment made to it" were omitted. Before the said Ordinance, the provision of section 194(1) was as under: '

194. Cognizance of offences by High Court: (1) The High Court may take cognizance of any offence, upon a commitment made to it, in manner hereinafter provided.'

11. Thus, prior to the amendment of subsection (1) of section 194, Cr.P.C. as it has been indicated hereinabove the High Court had no jurisdiction to directly take cognizance of the offence except upon a commitment made to it in the manner provided thereafter but after the amendment of subsection (1) of section 194, Cr.P.C. jurisdiction has been conferred upon the High Court to take cognizance of any offence directly. So far as the term 'in manner hereinafter provided' is concerned it has been noticed that the said term has already been explained by a two-member bench of this court in the case of Dr. Muhammad Afzal and others v. The State (2001 SCMR 1615). The Hon'ble bench, after a thorough examination of the legal provisions on the subject, concluded that, '...High Court can take cognizance of offence of Pakistan Penal Code under section 194, Cr.P. C. in the same manner as cognizance is taken under section 190(1)(c), Cr.P.C. by a Magistrate namely upon an information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed.' In addition, the High Court may withdraw for trial any case pending before any subordinate court while exercising its powers under Section 526, Cr.P.C. However, whether the High Court takes direct cognizance of a case or withdraws it from a subordinate court, it must follow the procedure for trial as provided under Chapter XXII-A of the Cr.P.C. MAJOR CONSTITUTIONAL AND LEGAL LAPSES IN THE CASE OF MR. BHUTTO

12. Keeping in mind the above-settled principles and procedures to be adhered to while conducting a criminal trial, and after a thorough scrutiny of the entire record of Mr. Bhutto's case from the trial court/High Court up to this Court, I have found the following major constitutional and legal lapses that caused the proceedings of the trial of Mr. Bhutto to fail to meet the requirements of a fair trial and due process: I) Biased Conduct of the Acting Chief Justice In this case, the incomplete report/Challan under section 173, Cr.P.C. ('Challan') was submitted before the concerned area Magistrate on 11.09.1977. As the said Magistrate was not competent to try an offence punishable under section 302 P.P.C. (the main offence in the case), he, therefore, forwarded the same under section 190(3), Cr.P.C. to the Court of Session for trial. The record shows that on 13.11.1977, the State, through the Special Prosecutor, filed a petition, i.e., Criminal Misc. Application No. 127- T of 1977, for transfer of the criminal cases pending before a Court of Session at Lahore. The petition was fixed before the Acting Chief Justice, Mushtaq Hussain, who, on the same day, withdrew the case from the Court of Session and transferred it to the High Court and constituted a Full Court comprising five judges of the High Court for the trial of the case, and also adjourned the case to 24.09.1977 for hearing, vide the same judicial order dated 13.09.1977 (as reproduced in para 15 of the detailed opinion). It would not be out of place to mention here that Chapter 1 of Volume-V of the High Court Rules and Orders deals with the Judicial Business of the High Court. Its Part A(b) prescribes a procedure for the disposal of petitions for the transfer of criminal cases. Rule 5 provides, 'the petitions for transfer of cases shall ipso facto be treated and dealt with as urgent petitions'. Rule 6 provides, 'Notice of the hearing of urgent petitions shall not be given individually to the petitioner or his counsel but a list of such petitions shall be hung up for the purpose on the notice board outside the Deputy Registrar's room and/or displayed in electronic media on the day proceeding the date fixed for the hearing of these petitions giving the name of the Judge by whom the petition will be heard.' Rule 7 provides, 'In petitions for transfer of cases under section 526, Criminal Procedure Code, filed in the High Court, the Sessions Judge shall, without fail, return all notices received by him from the High Court, whether for himself or for parties, after service, within one week from the date of their receipt.' Rule 8, Part A(b) further provides that 'The Sessions Judge shall, without fail, also submit, within one week from the date of receipt of the High Court letter, all reports or explanations called for by the High Court from himself or the Magistrate concerned with regard to allegations contained in the petitions for transfer or affidavit, copy whereof will accompany the said letter.' However, the then Acting Chief Justice sidestepped the above-noted prescribed procedure and, without giving/issuing any notice to the Court of Session/trial court for service to the parties, displaying the same in electronic media, or seeking any report or explanation from the Court of Secession/trial court with regard to allegation contained in the petition, passed the order dated 13.09.199 in a hasty manner. Furthermore, he (the Acting Chief Justice) did not satisfy any of the conditions/grounds mentioned in section 526(1) (a-e) for exercising his jurisdiction under the said provision of law. The said order is also silent on the fact of what urgency or exigency necessitated the Acting Chief Justice to constitute a Full Bench for trial through a judicial order instead of a special order as required under Part-B of Chapter 3 of the High Court Rules and Orders. Without having any lawful authority, he, vide the said order, fixed the next date of hearing in the main case, even though the case file was not before him. Under the law, after the constitution of the Full Court/trial court, it is the exclusive power of the Full Court/trial court to fix the next hearing date at its convenience. All the aforementioned facts indicate his undue favor to someone against Mr. Bhutto. Even otherwise, the language of the order dated 13.09.1977 'In view of the submissions made in the petition the case is transferred to this Court for trial' ex -facie speaks volumes about his apparent bias or impartiality against Mr. Bhutto. II) Non-observance of Prescribed Procedure by the Full Court On September 24, 1977, the Full Court took up Mr. Bhutto's case for the first time and delivered the requisite copies to the accused persons (Mr. Bhutto, Mian Muhammad Abbas, Arshad Iqbal, Rana Iftikhar, and Ghulam Mustafa) under section 265-C, Cr.P.C. The Court also summoned the evidence for October 2, 1977. As previously mentioned, the Full Court was bound to follow the procedure for trial as provided under Chapter XXII-A of the Cr.P.C. Under this chapter, section 265-D stipulates that if, after perusing the police report or the complaint and all other documents and statements filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused. However, the Full Court did not frame any charges against the accused persons, thereby ignoring the above mandatory provision of law and directly summoned the evidence. This implies that the Full Court had already formed its opinion to proceed with the trial even without perusing the record. However, the charges were formally framed against the accused person on October 11, 1977. On November 5, 1977, Mr. Bhutto filed an application before the Full Bench, expressing his apprehension that a fair and impartial trial would not be conducted in his case. The Full Court, instead of disposing of the application, observed, 'This application be placed on record, which shall be disposed of in accordance with law, after the trial.' I find this course of action adopted by the Full Court difficult to understand. The application should have been disposed of promptly, considering that the accused was expressing distrust in the Court. However, the Court seemed adamant about concluding the trial without addressing the concerns raised by Mr. Bhutto. III) In-Camera Trial Without Any Justification On January 24, 1978, Mr. Bhutto informed the Full Bench that he had boycotted the trial after the cross-examination of Ghulam Hussain (PW.34) and, therefore, he was not prepared to answer any questions under section 342 of the Cr.P.C., which were directly related to his defence. Upon this, the Full Court made a general observation that the accused (Mr. Bhutto) had made several scurrilous, scandalous, and baseless attacks on the impartiality of the Bench. Consequently, the Court, solely based on the above reason, directed that the proceedings of the case be held in camera. It further ordered that no part of the in-camera proceedings would be published in any form whatsoever. Section 352, Cr.P.C. provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them. This provision of law, however, provides an exception to the above general rule that the Presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. I would feel no hesitation to observe here that this was a trial of a prominent politician who was also the head of a major political party and had served as the Prime Minister of the country. Against whom allegations of criminal conspiracy levelled by another politician in connection with the murder of his father. This situation created a compelling need for an open trial to ensure that justice was not only done but also perceived to be done transparently. An almost similar observation has been made by a five-member bench of this Court in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) wherein the said Hon'ble Bench upheld the findings of the trial court, which ordered an open trial for the accused because the accused was a high-ranking government official. This decision highlights the importance of transparency and public scrutiny in cases involving individuals in significant positions of authority. In light of these considerations, it appears that the Full Bench did not exercise its discretion appropriately by ordering an in-camera trial and caused serious prejudice to the accused, Mr. Bhutto in contumacious disregard of the law previously declared by this Court in the Nawaz Gardezi case supra. IV) Denial of the Right to Defend Similarly, On January 28, 1978, the request of Mr. Bhutto for the supply of a copy of his statement recorded under section 342, Cr.P.C. on January 25, 1978, was declined (with the permission only to see that statement) for the reason that the proceedings were held in camera. In the case of Mr. Bhutto, the legal requirements for a fair trial, such as due notice and the opportunity to defend oneself, appear to have been compromised, as he was not provided with the materials necessary to prepare his defence effectively. This could possibly undermine the fairness and integrity of the trial proceedings. A fair trial for a criminal offence involves not only the technical observance of the framework and formalities of the law but also the recognition and just application of its substantive principles to ascertain the truth and prevent miscarriage of justice. V) Erroneous Appreciation of Evidence of Approver There is no denying the fact that there was no direct evidence in this case, which was solely based on the evidence of the approvers Masood Mahmood and Mian Muhammad Abbas. Under section 133 of the Evidence Act, 1872 (now Article 16 of the Qanun-e-Shahadat Order, 1984), an accomplice is a competent witness against an accused person. Thus, the evidence of an accomplice holds significant importance in the criminal justice system, particularly in cases where direct evidence is scarce. An approver is a participant or accomplice in a crime who agrees to testify against their fellow accused in exchange for leniency or a pardon. However, the evidence of an approver is treated with caution due to the inherent risk of unreliability and the possibility of ulterior motives. Section 114, illustration (b) of the Evidence Act, 1872 (now Article 129, illustration (b) of the Qanun-e-Shahadat Order, 1984), reinforces this caution by requiring that the testimony of an approver be corroborated in material particulars by independent and reliable evidence. This corroboration is necessary to ensure that the testimony of the approver is truthful and not fabricated to secure their own benefit. This Court in the case of Ghulam Qadir and another v. The State (PLD 1959 SC (Pak.) 377) had a chance to examine the evidentiary value of an approver. After a thorough analysis of the material available on record and the law on the subject, a 3-member bench of this Court laid a normal standard of corroboration for the acceptance of the evidence of an approver in a criminal case. S. A. Rahman, J.- (as he then was) speaking for the bench observed as under: 'As a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case. However in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver's statement on material points suggesting a link between accused persons and the crime before such a statement could be accepted as a safe foundation for their conviction. The reason for the rule is obvious. There is always danger of substitution of the guilty by the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of a self-confessed criminal who while trying to save hip own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner. But the corroboration required would depend on the facts and circumstances of each particular case and no hard and fast rule can be laid down in this behalf. Surely, one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case. That does not imply any relaxation of normal standards of corroboration in such cases and indeed, in my humble judgment, the High Court, in the present case, does nor appear to have been guilty of any such lapse.' The above normal standard of corroboration was followed by a subsequent equal bench of this Court in the case of Abdul Khaliq v. The State (1970 SCMR 307). The bench observed, "The extent and nature of corroboration of the testimony of an accomplice may vary from case to case. The rule of practice requiring corroboration of the evidence of the accomplice is that the corroboration must be in respect of some material particulars implicating the accused, and it is not necessary that evidence of the accomplice should be corroborated in every detail of the crime.' Later, a 5-member bench of this Court in the case of Abdul Majid and another v. The State (PLD 1973 SC 595) approvingly referred to the above observations of the earlier 3-member bench regarding the requirement of the normal standard of corroboration of the statement of an approver and decided the case accordingly. Later a matter involving the encounter/murder of six persons by the police came for consideration before this Court in the case of Ch. Muhammad Yaqoob and others v. The State (1992 SCMR 1983). This Court after analyzing the case law from 1949 to 1991 observed that the testimony of an approver is to be scrutinized with care and caution and the Court should be doubly sure that his (approver's) evidence is corroborated in material particulars by reliable evidence. Further, this Court laid down the following principles for appreciating the evidence of an approver: (i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession. (ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession. (iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars. (iv) That though the confession of a co-accused cannot be made the foundation of conviction but it may be used in support of other evidence. (v) That the confession of a co-accused is an evidence of a weak character. (vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence. (vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily. (viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession. (ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice. It is relevant to mention here that the provisions of sections 337 to 339, Cr.P.C., lay down the procedure for tendering a pardon to an accomplice. The combined effect of these provisions is that a pardon may be tendered with the objective of 'obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence.' A pardon can be offered to such a person on the condition that he makes a full and true disclosure of all circumstances within his knowledge related to the offence and to every other person involved, whether as a principal or abettor, in its commission. It is evident that, without attempting to provide a formal definition of the term 'accomplice', the above provisions outline the criteria necessary for treating a person as an accomplice to tender a pardon. An accomplice, therefore, means a guilty associate or partner in crime, someone who is consciously connected with the offence in some way, whether before, during, or after its commission, or who makes admissions of facts showing that he had a conscious hand in the offence. If a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In other words, an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate that he, due to the presence of the necessary mens rea and his participation in the crime in some way, can be tried alongside that confederate who actually perpetrated the crime. A witness who could not be so indicted due to the absence of mens rea cannot be considered an accomplice. VI) Masood Mahmood does not qualify to be an Approver As the case rests mainly on the evidence of the approver his evidence requires a careful scrutiny, and can only be accepted if it is supported in material particulars by other reliable evidence. Upon examining the testimony of the approver (PW-2), numerous discrepancies and irregularities have been observed. Nonetheless, the following significant excerpts from his evidence are reproduced below for a thorough understanding and proper appreciation of his evidence: 'In June 1974 when Mr. Ahmad Raza Kasuri was speaking in the National Assembly, Mr. Zulfiqar Ali Bhutto addressed him directly and not through the Speaker as follows: He asked him to keep quiet, that he had enough of him and that he would not tolerate his nuisance anymore. This is more or less, what the Prime Minister said. A day or two later I was sent for by the prime Minister. He, inter alia, said to me that he was fed up with the obnoxious behavior of Mr. Ahmad Raza Kasuri and that Mian Muhammad Abbas, an Officer of the FSF, knew all about his activities. This officer is an accused in this Case. The then Prime Minister further told me that this officer had already been given directions through my predecessor to get rid of Mr. Ahmad Raza Kasuri. The Prime Minister went on to instruct me that I should ask Mian Muhammad Abbas to get on with the job and produce the dead body or Mr. Ahmad Raza Kasuri or his body bandaged all over.' 'On the 11th of November, 1974, I was at Multan so was Mr. Zulfiqar Ali Bhutto. Very early in the morning he rang me up. He said to me, "Your Mian Abbas has made complete balls of the situation. Instead of Mr. Ahmad Raza Kasuri, he has got his father killed". I was taken by surprise. The Prime Minister hung up after telling me that he would summon me later . Soon after that, when I returned to the Headquarters, Mian Abbas informed me and reported to me that his operation had been successful, but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore'. 'As far as I remember, I left Multan in the same afternoon. I was summoned by Mr. Bhutto on our return to Rawalpindi. He was peeved and agitated. He said that the actual task had yet to be accomplished. I said to him, "at your behest, an idea conceived by you was carried out and communicated by me to Mian Abbas who already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders any more'. In answer to a question during cross-examination, the approver (PW-2) stated that: 'I did not give any plan of mine to Mian Muhammad Abbas for committing the murder of Mr. Ahmad Raza Kasuri. Since Mr. Abbas had assured me about the execution of the orders ive to him by the then Prime Minister, therefore, I did not give any person to him for the execution of those orders'. A careful examination of the above-quoted excerpts from the evidence of Masood Mahmood, the approver (PW-2), reveals that he implicitly distanced himself from the alleged conspiracy involving Mr. Bhutto. He portrayed himself as an innocent and God-fearing man who merely conveyed a message from the then Prime Minister to another officer, treating it as part of his official duties. Moreover, the alleged incident took place on November 11, 1974, and he was taken into custody on July 5, 1977, with his confessional statement recorded on August 24, 1977. To substantiate his bona fides and the voluntariness of his actions, he claimed that on August 14, 1977, he wrote a letter to the Chief Martial Law Administrator, explicitly disclosing the misdeeds of the Federal Security Force, as well as his own actions wrongly carried out under the orders of Mr. Bhutto. Surprisingly, the letter was written after more than two and half years of the occurrence while he was in custody. If he had truly repented for his previous actions, he should have written that letter before his arrest. However, this stance has no value, as the letter or a copy thereof was not produced by him as evidence. He also failed to explain why he remained silent for approximately two and half years after the alleged incident and why he did not report it to the concerned authorities. Even otherwise, if his entire statement is considered in its totality, it does not constitute any offence. His statement is free from any mens rea and is therefore exculpatory; thus, he does not fall within the category of an accomplice. However, the High Court/Trial Court did not take note of this important aspect of the matter and, relying upon the evidence of the approver, erroneously convicted Mr. Bhutto. Although, this Court, in paragraph 413 of the majority judgment, made an important observation to the effect, '...If a witness is not an accomplice in the sense indicated above, namely, on account of the absence of mens rea then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony, depending on all the facts and circumstances of the particular case. In other words, he has then to be judged as any other witness, 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.' Later, the majority judgment (para 456) concluded that Masood Mahmood, the approver was a truthful and reliable witness and dismissed the appeal of Mr. Bhutto while hypothetically observing, 'that Masood Mahmood enjoyed a special position under Zulfiqar Ali Bhutto, that he was in close and constant touch with him throughout his tenure as Director-General of the Federal Security Force from 1974 to 1977, that he was shown all kinds of favours and considerations by being sent abroad for official visits and medical treatment, that he was not the only civilian official taken into custody on the proclamation of Martial Law, and that during his long career in the Police service of Pakistan, he had held important positions involving the assumption of responsibility and exercise of authority, and it was, therefore difficult to hold that Masood Mahmood had become an instrument in the hands of the Martial Law authorities to deliberately and falsely concoct the story he had narrated at such length at the trial. A further significant fact strengthening this conclusion was that even if he was pressurised to falsely implicate the former Prime Minister, there was no reason for the Martial Law authorities, or for Masood Mahmood himself to falsely assign an important operational role in the conspiracy to the appellant Mian Muhammad Abbas, who was then functioning as one of the Directors of the Federal Security Force, incharge of Operations and Intelligence...'. VII) Lack of Corroboration of Evidence of the Approver If, for the sake of argument, it is accepted that Masood Mahmood fulfills all the requirements of being an approver, the next important legal question is whether the prosecution has succeeded in providing the necessary corroboration to support his testimony. To find the answer, I thoroughly examined the available records and was highly disappointed to find any convincing evidence to corroborate the sequence of events as alleged by Masood Mahmood, the approver. As far as the motive is concerned, it has been found from the excerpt of evidence of Masood Mahmood, as quoted above, that the motive mainly set out by the prosecution was Mr. Bhutto's speech in June 1974 in the National Assembly, where he directly addressed Mr. Ahmad Raza Kasuri and said he had enough of him and would not tolerate his nuisance anymore. In addition to this, Mr. Ahmad Raza Kasuri, while appearing as PW-1 before the High Court/Trial Court, gave a detailed account of his differences with Mr. Bhutto. Notably, he stated that he was a founding member of the Pakistan People's Party ('PPP'), formed on December 1, 1967, and was elected to the National Assembly in 1971 on that party's ticket. As he considered Mr. Bhutto a power-hungry, their relations cooled and eventually became strained. The above are the two main reasons for the involvement of Mr. Bhutto in this case, as per the prosecution evidence available on record. It is worth discussing a shocking fact: Mr. Ahmad Raza Kasuri, while appearing as PW-1, disclosed that Mr. Bhutto formally expelled him from the PPP in October 1972. In June 1973, he joined Tehrik-I-Istiqlal and then rejoined the PPP on April 6, 1976, due to an instinct for self-preservation. I am unable to understand, and even a person of ordinary prudence could not fathom, why he would rejoin a party led by someone accused of conspiring in his father's death. His rejoining is not justified in any manner, regardless of his reasoning. Based on these facts, it could be surmised that Mr. Ahmad Raza Kasuri might have been subjected to some external pressure possibly motivated by the then Martial law regime to implicate Mr. Bhutto in the murder of his father, even though he might not have personally wished to do so or might have been convinced of Mr. Bhutto's innocence subsequently. VIII) Motive Remained Unproved Even otherwise, when there are open hostilities between two groups, the motive factor may propel one side to commit a crime, and the same factor may possibly induce the other group to implicate their rivals. Further, the motive is a double-edged weapon, which can be used either way and by either side i.e. for real or false involvement. Reference in this regard may be made to the cases of Noor Elahi v. Zafarul Haque (PLD 1976 SC 557); and Allah Bakhsh v. The State (PLD 1978 SC 171). Therefore, to my understanding the prosecution failed to establish the motive part of the case; but the High Court/Trial Court (in para 464 of the judgment) had erroneously held, 'the motive to kill Ahmad Raza Kasuri is proved to be on the part of the principal accused [Mr. Bhutto]'. Similarly, this Court in para 497 of the majority judgment subscribed to the finding of the High Court/Trial Court while ignoring the above apparent fundamental inconsistencies in the case of the prosecution and held that Mr. Bhutto had a strong motive to do away with Ahmad Raza Kasuri owing to their violent political differences, and the manner and the language in which Ahmad Raza Kasuri gave vent to his views against the former Prime Minister and his polices. IX) The Retracted Confession of Mian Abbas carries no Evidentiary Value A careful examination of the confessional statement made by Mian Abbas under section 164, Cr.P.C. shows that he also attempted to exculpate himself by laying the blame on approvers Masood Mahmood and Ghulam Hussain and incidentally implicating Mr. Bhutto in this crime. Under these circumstances, his statement cannot be treated as a confession for the purposes of section 30 of the Evidence Act, 1872 (now Article 43 of the Qanun-e-Shahadat Order, 1984). Moreover, he had initially admitted his guilt and recorded his judicial confession. However, he later retracted that confession, yet the High Court/ Trial Court convicted him and sentenced him to death. During the appeal proceedings before this Court, he again changed his mind, retracted the retraction of his judicial confession, and pleaded guilty. Although a conviction can be based on a retracted judicial confession provided it is corroborated, the conduct of Mian Abbas as described above makes him a highly unreliable witness in case involving a capital sentence. X) Impact of Negative Report of Ballistics Experts Additionally, the negative report of the Ballistics Expert dated September 8, 1977, regarding the use of any of the 25 guns of the third Battalion of the FSF, then stationed in Walton Lahore, in the present crime undermines the entire prosecution case, not only in regard to the use of weapons belonging to this Battalion but also regarding the use of FSF ammunition. Particularly, this report is fatal to the evidence of the approver Ghulam Hussain and of the other witnesses who claimed to have supplied Short Machine Guns (SMGs) and ammunition to Ghulam Hussain for the purpose of carrying out an attack on Mr. Ahmad Raza Kasuri. DISAGREEMENT WITH CERTAIN REASONS IN THE DETAILED OPINION

13. No doubt, the High Court, as earlier discussed, is fully competent to take direct cognizance under section 194, Cr.P.C. of a criminal case for the commission of any offence under the P.P.C. or transfer the same to itself for trial under section 526, Cr.P.C., as both provisions have existed in the Cr.P.C. since its inception in 1898. If these provisions were found to be inappropriate, the Parliament could amend or delete them in any of the subsequent amendments made after its adoption. Given the above legal position, I do not agree with the observation made in para 26 of the detailed opinion authored by the Chief Justice whereby it has been observed, 'Article 185(2)(b) of the Constitution and sections 411 -A and 526, of the Code permit trial to be conducted by the High Court, but these provisions do not provide for a High Court to conduct a murder trial.' I would feel no hesitation to state here that Section 411-A, Cr.P.C. only provides a remedy of appeal to an accused who has been convicted in a trial held by the High Court in the exercise of its original criminal jurisdiction. An exception is attached to this provision, under which no appeal lies in cases where an appeal lies to the Supreme Court under Article 185 of the Constitution. Article 185(2)(b) of the Constitution stipulates that an appeal shall lie to the Supreme Court from any judgment, decree, final order, or sentence of a High Court if the High Court has withdrawn any case for trial before itself from any court subordinate to it and has in such trial convicted the accused person and sentenced him. As the High Court withdrew the case of Mr. Bhutto from the Court of Session/Trial Court and convicted him, his case was not covered under section 411-A, Cr.P.C. being subject to its exception clause. Therefore, Mr. Bhutto filed a direct criminal appeal before this Court under Article 185(2)(b).

14. The Chief Justice, with due respect, erred in understanding the true meaning and purpose of Article 185(2)(b) of the Constitution and sections 411-A and 526 of the Cr.P.C. Consequently, his observation that the aforementioned provisions of law permit the trial to be conducted by the High Court, but do not allow the High Court to conduct a murder trial, is untenable under the law being based on a misconception of these provisions. It is, however, true that the trial of Mr. Bhutto, for the first time, was conducted by the High Court in its original criminal jurisdiction; but now one more example can also be quoted from the recent past. Where a single bench of the Islamabad High Court tried the case of an on-duty Additional Sessions Judge, Raja Khurram Ali Khan, and his wife, Maheen Zafar, for torturing their domestic worker, Tayyaba Bibi. They were both convicted and sentenced and their criminal appeal under section 411-A, Cr.P.C., was dismissed by the Division Bench of the same High Court. See Raja Khurram Ali Khan and another v. Tayyaba Bibi and another (2019 YLR 98). A Criminal Appeal filed against the judgment of the Division Bench was also dismissed by this Court. See Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another (PLD 2020 SC 146).

15. As far as the observation of the Chief Justice in para 27-28 of the detailed opinion regarding confirmation of the death sentence by the High Court is concerned, my understanding of the legal framework as provided under Chapter XXVII titled 'OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION' is quite different. Under this chapter, the Legislature has provided valuable safeguards for the life and liberty of convicts in cases involving capital sentences. The provisions contained therein seek to ensure that in capital sentence cases, where the life of the convicted person is at stake, the entire evidentiary material bearing on the innocence or guilt of the accused and the question of the sentence must be scrutinised with utmost caution and care by a superior Court. This Chapter only deals with the sentence of death passed by a Court of Session and it has nothing to do with the sentence of death passed by a High Court while trying a case in its original criminal jurisdiction. The provision of section 374 is more than clear in this regard which states as under: '

374. Sentence of death to be submitted by Court of Session: When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court'. Emphasis Supplied. Further, section 377 states as under: '

377. Confirmation of new sentence to be signed by two Judges: In every case so submitted, the confirmation of the sentences, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.' Emphasis Supplied.

16. The above provisions are clear and require no further interpretation regarding whether a death sentence passed by a Full Bench comprising five judges of the High Court still requires confirmation by another two judges of the same Court. On a reference for the confirmation of the sentence of death, the High Court is required to proceed in accordance with sections 375 and 376, Cr.P.C. and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the trial court is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. If, for the sake of argument, it is accepted that the said death sentence passed by a Full Bench still requires confirmation by another two judges of the same High Court, it would be against the spirit of the above Chapter as well as the settled law whereby a smaller bench cannot sit as an appellate authority against the decision of a larger bench even it would disturb the internal hierarchy of the High Court. For instance, Section 3(1) of the Law Reforms Ordinance, 1972, provides for an appeal to a bench of two or more judges of a High Court from a decree passed or final order made by a single judge of that Court in the exercise of its original civil jurisdiction. But no such appeal would lie if the decree or final order is made by a bench comprising more than one judge, thus rendering the said provision of law redundant. Similarly, we, for the purposes of Section 374, Cr.P.C., cannot use the terms 'Court of Session' and 'High Court' interchangeably, as both are distinct and separate judicial forums. Consequently, when the High Court passes a sentence of death in its original criminal jurisdiction, the above Chapter XXVII of Cr.P.C. becomes redundant and inoperative. However, the convict may seek the remedy of appeal under Article 185(2)(b) of the Constitution or Section 411-A, Cr.P.C., as the case may be, as discussed in the preceding paragraphs. Therefore, with such an interpretation and understanding of Chapter XXVII of Cr.P.C., I am unable to agree with the view expressed by the Chief Justice in paragraphs 27 to 30 of the detailed opinion regarding the application of Chapter XXVII, as well as the loss of the right of appeal in the case of a criminal trial conducted by the High Court in its original criminal jurisdiction, as being misconceived.

17. In conclusion, while exercising the restraint expected of me in an advisory jurisdiction, I have no hesitation in stating that no evidence whatsoever was available on record to sustain the conviction of Mr. Bhutto as recorded by the High Court/Trial Court and upheld by this Court. The evidence of the material witnesses, namely Ahmad Raza Kasuri (PW-1), Masood Mahmood (PW-2), Saeed Ahmad (PW-3), Mr. Welch (PW-4), and Ghulam Hussain (PW31) is full of contradictions, improvements, and improbabilities and was not sufficient for awarding the capital punishment to Mr. Bhutto. Even the majority of this Court erroneously subscribed to the findings of the High Court/Trial Court without carrying out any independent analysis or review of the material available on record. In short, the case of Mr. Bhutto is a bitter example of unfairness, wherein both substantive and procedural laws were misapplied to please the then-Martial Law authorities. As a result, we lost a great political leader. This case stands as a stark reminder of how legal systems can be manipulated for political gain, leading to grave injustices. The misapplication of laws in this case not only undermined the integrity of the judicial process but also eroded public trust in the legal system. It highlights the importance of judicial independence and the need for courts to be free from political influence. The loss of Mr. Bhutto, a visionary leader, was not just a blow to his supporters but to the nation as a whole, depriving it of his leadership and contributions.

18. The above are the reasons in support of the unanimous short opinion rendered by this Court on 06.03.2024. Sd/- Syed Hasan Azhar Rizvi Judge Opinion on Reference No.01/2011, filed under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 MUHAMMAD ALI MAZHAR, J.

Pursuant to the decision of the Federal Cabinet, the President of Pakistan, in the year 2011, filed a reference under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") seeking an opinion in respect of the proceedings of the judicial process in the case of the trial of Shaheed Zulfiqar Ali Bhutto, former Prime Minister of Pakistan (Mr. Bhutto). For the ease of reference, the following index provides an outline of the key topics discussed in the opinion: Sr. No. Heading Page No. I. Quintessence of Advisory Jurisdiction 826 II. Opinion of Larger Bench 828 III. Overview of Murder Trial 828 IV. Reinvestigation in a Closed Case 829 V. Transfer of Case from Sessions Court to High Court 831 VI. Allegations of Bias 833 VII. Doctrine of Natural Justice and Due Process of Law 838 VIII. Evidence of the Approver 840 IX. Confirmation of Death Sentence 840 X. Right of Appeal 841 XI. Interviews in Print and Electronic Media 841 XII. Mitigating Circumstances 843 XIII. Doctrine of Repentance 845 I. Quintessence of Advisory Jurisdiction

2. To begin, it is expedient to reproduce, for the ease of reference, Article 186 of the Constitution as under: Advisory Jurisdiction 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. [emphasis applied]

3. The spirit and fundamental nature of the advisory jurisdiction under Article 186 accentuates that the President may refer any question of law which is considered to be a matter of public importance to the Supreme Court for its consideration and opinion. This function plays a momentous role in advisory jurisdiction. The foremost wisdom of this jurisdiction lies in enabling the President to seek aid and assistance in the form of an opinion from the Supreme Court on any issue of law concerning public importance, which is the dominant feature of the "Presidential Reference" encapsulated in the Constitution. In my view, while the opinion rendered under advisory jurisdiction may not be binding, it carries significant credence and persuasive value. It is rendered after much deliberation, thoughtfulness, and appreciation of the questions forwarded by the President consistent with the constitutional obligations and judicial propriety. Such opinions ought to be respected with due weight and esteem by all organs of the State. However, concomitantly, questions transmitted for opinion in the reference should not be ambiguous, indeterminate, or inexplicable to avoid the possibility of the Supreme Court returning the reference unanswered.

4. In essence, the scope and existence of advisory jurisdiction represent is a fundamental correlation and relationship between the government and the judiciary. It is the sole pathway for seeking Supreme Court's opinion in certain instances. The Court must remain confined to the proposed questions without making any departure and must keep a tight rein on the reference itself. The Supreme Court may decline to articulate an opinion if the questions framed lack any constitutional significance or public importance. In Reference No. 2 of 2005 (PLD 2005 SC 873), a nine-member bench of this Court rendered an opinion on the draft Bill titled "HISBA BILL". The opinion referenced various local and foreign judicial precedents and the insights of eminent jurists on constitutional provisions, and concluded that the opinion on a Presidential Reference is not a decision between parties but entails an extensive judicial exercise, including evaluation and appreciation of arguments advanced by advocates appearing for summoned parties, and the Court then forms an opinion. It was further expounded that keeping in mind the language used in Articles 189 and 190 of the Constitution, the opinion expressed by the Supreme Court on a Presidential Reference under Article 186 is required to be esteemed by all organs of the State. Thus, it would not be fair to say that the opinion expressed by the Supreme Court on a Presidential Reference under Article 186 of the Constitution has no binding effect. II. Opinion of Larger Bench

5. On 06.03.2024, the larger bench of this Court delivered its opinion on five questions raised in the Reference filed by the President of Pakistan. The larger bench, by and large, opined that the proceedings of the trial by the Lahore High Court and the appellate judgment rendered by the Supreme Court did 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. It was further opined that 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 had attained finality after the dismissal of the review petition by this Court, and thus, this Court cannot reappraise the evidence to undo the decision.

6. No doubt, the conviction attained finality after the dismissal of the review petition by this Court. However, in my unfeigned empathy and astuteness, I reckon it my utmost duty to draw attention to the quintessential blemishes and glitches in the murder trial, which blatantly suppressed, devastated, and compromised the doctrine of due process of law and the right to a fair trial. III. Overview of Murder Trial

7. To articulate my opinion, a selection of indispensable facts about the "Murder Trial" is sine qua non to be jotted down for augmentation. To avoid veibosity, I aim to recapitulate the short and snappy minutiae of the murder trial, which forms the nucleus of my opinion. Considering the acute topographies, FIR No.402/74 was registered on 11.11.1974 at Police Station Ichara, Lahore, on the complaint of Mr. Kasuri. After lodging the FIR regarding the assassination of his father, the police carried out the investigation but traced no culprits. Consequently, the investigation was transferred by the Senior Superintendent of Police to the Crime Investigation Agency. Despite the transfer, no suspects of the alleged crime were identified or implicated, and recommendations were made for closure. The report was submitted to the concerned Magistrate and approved vide administrative order dated 03.05.1976. Neither the complainant nor any other legal heirs of the deceased challenged the closure of the investigation in the High Court or applied to the prosecution agency for the revival of the case or changes to the investigation officer or agency. Here, the matter could have ended without any further proceedings or investigation, effectively setting it to rest for all practical purposes. However, on one fine morning, the Government of Punjab, of its own accord, appointed a Tribunal to inquire into the incident mentioned in the same FIR without any lawful justification or application from any aggrieved person. IV. Reinvestigation in a Closed Case.

8. The erstwhile Tribunal, in its report dated 22.02.1975, issued certain directions for further investigation without any logical justification. After the imposition of martial law in the country, the Director of the Federal Investigation Agency ("FIA") resurrected the case on 03.05.1976, which had been closed much earlier. Again, this was done without any lawful justification and appeared to be an attempt to revive the closed case by any means with mala fide intentions. The Director of the FIA, more loyal than the king, implicated seven persons, including Mr. Bhutto. A final report under Section 173 of the Code of Criminal Procedure Code, 1898 ("Cr.P.C.") was submitted, wherein two accused persons were cited as approvers. The concerned Magistrate sent the matter to the Sessions Judge for trial on 12.09.1977. All of a sudden, a transfer application was moved by the State to the Acting Chief Justice of the Lahore High Court, who instantaneously transferred the case to the High Court for trial by 'a five-member bench headed by him. To conclude, the aforesaid bench, vide judgment dated 18.03.1978, awarded the death penalty to Mr. Bhutto. His appeal was dismissed by this Court on 06.02.1979, and though a review petition was filed, it was also dismissed on 24.03.1979. To end the story everlastingly, the death sentence was executed on 04.04.1979.

9. In the safe administration of the criminal justice system in our country, relevant provisions are provided under Cr.P.C. for making arrests, conducting investigations, holding trials, issuing convictions, and executing sentences. Whenever, an Officer In-Charge of a Police Station receives information about an offence, he is required to determine whether the offence is cognizable or non-cognizable. The Investigating Officer plays a crucial role in the administration of the criminal justice system and the constituent of the investigation report and its worth holds plenteous value and has repercussions on the outcome of any criminal case. The Investigating Officer is obligated to investigate the matter from all possible angles, as required by Rule 25.2(3) of the Police Rules, 1934, to ascertain the truth and aim to arrest the real offender, not the innocents. The investigation typically begins with inspecting the crime scene, reconnoitering the circumstances connected to the offence, identifying and arresting the suspect, gathering of relevant evidence (including witness statements), making applications to the Court for recording confessions if any, conducting searches and seizures, carrying out recoveries and identification parades if required, and finally submitting the final report under Section 173, Cr.P.C., after fulfilling all legal requirements. The Investigating Officer must ensure that the provisions of the law are conscientiously followed without any breaches and the investigation is conducted impartially, with the sole aim of uncovering the truth rather than implicating innocents. This impartiality forms the foundational pathway for the prosecution's case. The mere registration of an FIR does not insinuate conviction or proof of guilt. Section 169, Cr.P.C., clearly provides that if, upon investigation, it appears to the Officer In-Charge of the police station, or to the Police Officer conducting the investigation that there is insufficient evidence or reasonable grounds for suspicion to justify forwarding the accused to a Magistrate, such officer shall, if such person is in custody, release the individual upon executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial. The case of Norwest Holst Ltd. v. Department of Trade and others [(1978) 3 All ER 280 at 290] held that "in every investigation, there are by and large three different phases. First of all, the administrative phase; next, the judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed, or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of stating his case. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course, it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins". The judgment also quoted a passage from Lord Reid's speech in Wiseman v. Borneman [(1971) AC 297, at 308)], that every public officer deciding whether to prosecute or raise proceedings ought to first decide whether a prima facie case is made out or not.

10. Neither does it appear from the record that anyone, including the legal heirs of the deceased, was dissatisfied with the first investigation into the alleged crime, nor is there any indication that they approached the police, the FIA, or the High Court to request a fresh investigation. Additionally, nothing in the record justifies the decision to reinvestigate a closed case. No independent reasoning appears to have been applied to explain why reinvestigation was necessary. Moreover, there is no mention of significant errors or blunders made by the original Investigating Officer, nor any suggestion that evidence was intentionally omitted or manipulated to favour the accused. Similarly, there is no indication that overwhelming evidence was ignored or that reinvestigation was necessary to unearth the truth because the earlier investigation was so defective or contained such visible and seeming lapses on part of the Investigating Officer that it was rendered inadequate. Even the directions in the Tribunal's order to the investigating agency do not reflect any concrete or strong justification for reinvestigation. Instead, reinvestigation was ordered mechanically without identifying lapses on the part of the Investigating Officer. Neither was it asserted that the earlier investigation was botched, nor was any departmental action proposed against the Investigating Officer if the Tribunal believed that he failed to discharge his statutory duty of conducting a fair and impartial investigation.

11. The 'purpose of reinvestigation is not to appease influential individuals or to implicate the innocent. Its underlying principle is to unearth the truth where fairness, rectitude, and impartiality demand it. However, this does not mean that reinvestigation should routinely or customarily be ordered de novo, after submission of challan/report of closure, without any rational or well-articulated justification. Such orders must not cater to grudges or nefarious designs aimed at dragging the irreproachable or innocent individuals into .dire consequences. Reinvestigation cannot be wielded as a tool to favour any influential persons or punish the innocent so casually, callously, or arbitrarily, at the whims of influential and powerful individuals. Manipulated or misused, the garb of reinvestigation is truly a dangerous idea that undermines the integrity of the criminal justice system and poses a serious danger to its administration. V. Transfer of Case from Sessions Court to High Court

12. According to Section 28 of the Cr.P.C., an offence under the Pakistan Penal Code, 1860 (P.P.C.) may be tried by the High Court, or by the Court of Session or by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable. Section 31, P.P.C., however, is noteworthy, according to which the High Court may pass any sentences authorised by law. Similarly, a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, with the rider that any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. While Section 302 offences are triable by Sessions Court, as also mentioned in the Schedule-II (Explanatory Note) of the Cr.P.C., as the procedural framework outlined in Section 190, Cr.P.C., states that the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon a report in writing of such facts made by any police officer; upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed which he may try or send to the Court of Session for trial. A Magistrate taking cognizance of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial under Section 193, Cr.P.C., wherein it is clearly provided that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under Section 190.

13. The factual matrix in the case decrypts that the case was sent for trial to the Sessions Judge, Lahore, on 12.09.1977. However, on the very next day, a transfer application was filed by the State, which was allowed on the same day by the Acting Chief Justice of the Lahore High Court, the late Justice Maulvi Mushtaq Hussain, who constituted the bench, and the charge was framed on 11.10.1977. Without a doubt, under Section 526 Cr.P.C., the High Court has jurisdiction to transfer a case or itself try it, but with certain conditionalities, for instance: (a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; (b) that a question of law of unusual difficulty is likely to arise; (c) that a view of the place in or near which any offence has been committed may be required for a satisfactory inquiry into a trial of the same; (d) that an order under this section will tend to the general convenience of the parties or witnesses; or, (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code. While exercising this jurisdiction,, the High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.

14. It appears beyond any doubt that J. Maulvi Mushtaq Hussain allowed the transfer application in a slipshod manner, even without notice to the accused persons. Neither did the Court consider the parameters and constituents of Section 526, Cr.P.C., which require consideration before passing an order of transfer of a case, nor did it record in the order how Mr. Bhutto, who was incarcerated and no longer in power, was in a position to influence or manipulate the outcome, or hinder a fair inquiry or trial. Moreover, it was not mentioned what serious question of law of unusual difficulty was likely to arise in the prosecution case, or how the transfer was required for the general convenience of the parties or witnesses, or expedient for the ends of justice. On the contrary, in my view, the order was tainted with malice, seemingly intended 'to gain control of the prosecution case to stifle or curb the ends of justice and the right to a fair trial which is an inherent and fundamental right of every accused. The Court should not have rubberstamped the State's request for a case transfer without notice to the accused or without judiciously, cautiously, and diligently addressing the grounds raised in the transfer application to determine whether it genuinely made out a case for transfer or if the purpose of the transfer was to cause serious prejudice to the defence. It is evident from the record that Mr. Bhutto not only challenged the transfer order but also objected to the five-member bench trying the case, particularly alleging bias against J. Maulvi Mushtaq Hussain, who was heading the bench. However, all such objections were in vain. Neither the bench members of the High Court ever acknowledged these concerns, nor did this Court give any importance or paid any heed to them. Despite serious objections, J. Maulvi Mushtaq Hussain did not recuse himself from the bench, but continued enthusiastically completing the murder trial. VI. Allegations of Bias

15. Now, I would like to address the allegations of bias. Various instances are reflected in the record, including altercations and sarcastic remarks from the bench during the trial, which led Mr. Bhutto to believe he could not expect a fair trial or justice. Time and again, he raised allegations of bias and expressed lack of confidence, but the bench, seemingly overenthusiastic, overzealous, or under external pressure, continued the trial. They awarded the maximum sentence based solely on the testimony of an approver, without any other concrete incriminating or corroborative testament or circumstantial evidence. The bench's approach was unique and, even without considering any mitigating circumstances, appeared predetermined or prejudiced to impose the maximum punishment in a highly dubious case. In my considered view, the personal bias or preconceived notions of the judges unambiguously rendered them incapable of serving independently and fair-mindedly, which undermines the basic limb of the administration of justice and the sacred trust of the masses. When there is an actual probability of bias, the judge ought to recuse themselves, not because they are necessarily biased or incapable of dispensing justice impartially, but because the circumstances might engender a certain restlesness or fear of bias influencing the outcome of a case in the mind of others. In fact, reposing public confidence in the judiciary is the yardstick by which the justice delivery system and its integrity are appraised, including adherence to the doctrine of ex debito justitiae. A biased decision inevitably undermines credibility. However, mere apprehension or allegations of bias without any substantial whys and wherefores cannot alone justify recusal. Each judge, guided by his own conscience and sense of right and wrong, must decide whether to sit in a particular case or not. Lord Hewart's aphorism in Rex v. Sussex Justices ([1924] 1 KB 256) aptly applies here: "Justice must not only be done, but must also be seen to be done". Relevant local and foreign judicial precedents which are essentially concentrated on the question of alleging bias are as follows:-

1. Ms. Benazir Bhutto v. The President of Pakistan (1992 SCMR 140). Bias in a Judge is the paralysis, complete or partial, of judicial faculties and therefore the allegation of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. Bias in judicial matters may be caused by the judgment, order or observations of a Superior Court or it may spring from personal, political, religious, communal, racial, commercial or economic considerations. Ref: Dimes v. The Grand Junction Canal (No.1) and others (1852) H.L.C. 759-794) and Rex v. Sussex Justices (1924) 1 K B 256) and Muhammad Ismail Chowdhury v. Abdul Khaleque Dowdagar and another (PLD 1960 SC (Pak.) 301.

2. Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57). Mere suspicion of bias, even if it is not unreasonable, is not sufficient to disqualify a Judge. The basis of the disqualification, therefore, is "personal bias or prejudice" of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case and this must be shown as a matter of fact and not merely as a matter of opinion.

3. President v. Shaukat Ali (PLD 1971 SC 585), The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown.

4. Government of NWFP v. Dr. Hussain Ahmed Haroon (2003 SCMR 104). It is an age-old fundamental principle of law that justice should not only be done but manifestly and undoubtedly it should seen to have been done. To achieve this objective/ goal it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue before him. The conduct of the proceedings should not generate any reasonable apprehension in the mind of a person that the deciding officer has harboured any grudge or bias against him.

5. Asif Ali Zardari v. The State (PLD 2001 SC 568). The foremost question is what is 'bias' has been described in Corpus Juris Secundum, Volume X pp. 354 and

355. BIAS. Primarily, a diagonal or slant, especially of a seam, cut, or line across a fabric; and so derivatively, a leaning of the mind; a mental predilection or prejudice; anything which turns a man to a particular course; a particular influential power which sways the judgment; a preconceived opinion; a sort of emotion constituting untrustworthy partiality; bent, inclination, prepossession, propension, or tendency, which sways the? mind toward one opinion rather than another; propensity toward an object, not leaving the mind? indifferent. "Bias" has been held synonymous with "partiality," and strictly to be distinguished from "prejudice". Garner on Administrative Law, 4th Edition at page 122 has also attempted to define bias as a disqualification and in such context observed as follows: "Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from bias. Bias in this context has usually meant that the adjudicator must have no financial interest in the matter under dispute, but it is not necessarily so limited, and allegations of bias have been upheld in circumstances where there was no question of any financial interest."

6. State of Punjab v. Davinder Pal Singh Bhullar (AIR 2012 SC 364). In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting: "If, however, bias' and partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions Much harm is done by the myth that, merely by .. taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine." The principle in these cases is derived from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar and another AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy Mudaliar and others AIR 1988 SC 2232).

7. Gullavalli Negeswararao etc. v. The State of Andhra Pradesh and others (AIR 1959 SC 1376). It is one of the fundamental principles of judicial procedure that the person or persons who are entrusted with the duty of hearing a case judicially should be those who have no personal bias in the matter. In Ranger v. Great Western Ry. Co.(1) Lord Cranworth, L.C., says: 'A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent."

8. Ranjit Thakur v. Union of India and others (AIR 1987 SC 2386). The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice.

9. Bhajan Lal, Chief Minister, Haryana v. Messrs Jindal Strips Ltd. and others (1994) 6 SCC

19. Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as 'sua causa', whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

10. Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee (2011) 8 SCC

380. Nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar's wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias... He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making.

11. A.K. Kraipak v. Union of India (AIR 1970 SC 150). The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.

12. Davidson v. Scottish Ministers [2004] UKHL 34 [House of Lords]. In Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, 494, paragraph 103, my noble and learned friend Lord Hope of Craighead expressed the test in terms accepted by the Second Division and by both parties to this appeal- "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

13. Webb & Hay v. R [1993] HCA 30 [High Court of Australia]. When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether the fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done.

14. R v. Sussex Justices, ex parte McCarthy [1923] All ER 233 [House of Lords]. It was of fundamental importance that justice should not only be done, but that it should also be manifestly seen to be done; the question was not whether the acting clerk, when with the justices, made any observation or offered any criticism which he could not properly make or offer, but whether he was so related to the case by reason of the civil action as to be unfit to act for the justices in the criminal proceedings, and the answer to that question depended, not on what was actually done, but on what might appear to be done; what be did might have created a suspicion that there had been an improper interference with the course of justice; and, therefore, the conviction of the applicant must be quashed.

15. R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 [House of Lords]. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say it is alleged that there is an appearance of bias not actual bias. The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

16. Taylor and another v. Lawrence and another [2002] EWCA Civ 90 [Court of Appeal, Civil Division]. For the purpose of applying the test for apparent bias, namely whether in the all the circumstances a fair-minded and informed observer would be led to conclude that there was a real possibility that the tribunal was biased, the informed observer could be expected to be aware of the legal traditions and culture of the English jurisdiction, and accordingly he would be aware that in the ordinary way contacts between the judiciary and the legal profession should not be regarded as giving rise to a possibility of bias. VII. Doctrine of Natural Justice and Due Process of Law

16. In our history, it was not rare but rather the first murder trial conducted by the High Court, which was unique in that it was decided by a bench of five likeminded judges, including the then Acting Chief Justice, who unanimously agreed to award the death penalty. I am also mindful of the turn of phrase, "the accused is the favourite child of law". The substratum of this concept is based on the farsightedness and prudence that it is better to let a hundred guilty persons be acquitted than to convict one innocent or that it is better to run the risk of sparing the guilty than to condemn the innocent. Reliance is placed on the principles elucidated in my judgment, Muhammad Riaz v. Khurram Shehzad (2024 SCMR 51). The raison detre is to assess and scrutinize whether the police and prosecution have performed their tasks accurately and diligently in apprehending and exposing the actual culprits or whether they dragged innocent persons into the crime due to a defective or botched-up investigation, depriving the victim of justice. The philosophy of this phrase, though, does not imply that the Court should grant any unwarranted favours, indulgences, or preferential treatment to the accused. Rather, it ensures a fair-minded and unbiased sense of justice in all circumstances, as a safety gauge to maintain an evenhanded right of defence and a fair trial, thereby complying with the due process of law and reinforcing the renowned doctrine, "innocent until proven guilty". However, if the prosecution case's background or chronicle is analyzed, it strongly suggests that Mr. Bhutto was not treated as the "favorite child of law" but rather as an "unfavourite child of law".

17. The personal bias, prejudice mind or jaundiced eye of the judges tarnished and contaminated the framework of entire trial and the judgment, which tantamount to grave violation of the principle of natural justice and it also enfeebles the elementary foundation of the administration of justice which is sacrosanct for the faith and conviction of the masses. To enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen. The purpose of Article 4 of the Constitution, is to ascribe and integrate the doctrine of equality before the law or equal protection of the law. No action detrimental to the life and liberty of any person can be taken without due process of law. The principles of natural justice require that the delinquent be afforded a fair opportunity to converge, explain, and contest before being found guilty or condemned without any bias or prejudice of the Courts and judges. The principles of natural justice and the doctrine of due process are not new phenomena but have long been encapsulated as a sacred obligation of every court and tribunal to follow religiously in all matters, whether civil or criminal, to ensure a fair trial. The right to a fair trial has now been explicitly enshrined in our Constitution by virtue of the 18th Constitutional Amendment in the shape of Article 10-A and in case of apparent bias as done in this case, the accused could not expect right to fair trial. [Reference can be made to some judgments authored by me, such as Junaid Wazir v. Superintendent of Police (2024 SCMR 181), Federation of Pakistan v. Zahid Malik (2023 SCMR 603), Usman Ghani v. The Chief Post Master, GPO Karachi (2022 SCMR 745), Capital Development Authority v. Shabir Hussain (2022 SCMR 627), Raja Muhammad Shahid v. The Inspector General of Police (2023 SCMR 1135), Muhammad Yaseen v. Province of Sindh (2024 PLC(C.S.) 111), Government of Balochistan v. Ghulam Rasool (2024 SCMR 1155) and Inspector General of Police, Quetta v. Fida Muhammad (2022 SCMR 1583). VIII. Evidence of the Approver

18. I cannot ignore another crucial aspect, which is an acid test for considering and appreciating the evidence of an approver: whether their testimony is trustworthy or not. To ensure the safe, effective, and efficient administration of the criminal justice system, certain norms and yardstick are to be followed. The Court must first be satisfied that the testimony of the approver has been adequately corroborated to avoid a conviction based on weak or tainted evidence. Each case has its own facts. No doubt, an approver may be a competent witness, but their evidence requires substantial corroboration regarding the crime, the identity of each accused, and corroboration through independent and reliable evidence. The settled rule of practice is not to convict any accused on the basis of any vicious or venomous investigation. Therefore, the evidence of an approver must be appreciated with great care and caution and not treated as gospel truth. It would not be incongruous to emphasize here that under Section 114 of the Evidence Act, 1872, which is analogous to Article 129 of the Qanun-e-Shahadat Order, 1984, the Court may presume the existence of any fact it considers likely to have happened, having regard to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case. However, the illustration provided in clause (b) distinctly conveys "that an accomplice is unworthy of credit, unless he is corroborated in material particulars", an important factor that was also not considered when giving credence to the evidence of the approver. IX. Confirmation of Death Sentence

19. If the death sentence is awarded to an accused by the Court of Session, the proceedings must be submitted to the High Court under Section 374, Cr.P.C., and the sentence cannot be executed unless confirmed by the High Court. Under Section 376, Cr.P.C., when a murder reference is submitted by the Court of Session under Section 374, the High Court may confirm the sentence, or pass any other sentence warranted by law, or 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 may acquit the accused person, provided that no order of confirmation shall be made 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. For all intent and purposes, one thing is clear beyond any shadow of doubt: confirmation of a death sentence by the High Court is only required if the punishment is awarded by the Court of Session and a murder reference is submitted to comply with the letter of law. However, in this case, the death penalty was awarded by a five-member bench of the High Court, so there was no need for confirmation by any lower, or similar, or even larger bench of the same High Court. According to the exactitudes of Section 374, Cr.P.C., a murder reference may be sent by the Court of Session for confirmation, and the role of the High Court as provided under Section 376 Cr.P.C. cannot be read in isolation. It is contingent upon the murder reference sent by the Court of Session for confirmation under Section 374, Cr.P.C. Since the murder trial was conducted by the High Court itself, which was undoubtedly a rare example, no further confirmation was required upon conviction by the High Court, in accordance with the provisions of Section 376, Cr.P.C. X. Right of Appeal

20. Had the murder trial been conducted by the Court of Session and the death penalty awarded, Mr. Bhutto could have appealed before a divisional bench of the Lahore High Court. However, since the trial was conducted by the High Court itself, his right to appeal in the High Court was forfeited. To address such situations, the framers of the Constitution wisely provided for a direct appeal to the Supreme Court under sub-article (2) (b) of Article 185 of the Constitution in cases where the High Court withdraws a case for trial before itself from a subordinate court and convicts the accused. Likewise, the prerequisites of the appellate jurisdiction of the Supreme Court are further delineated in the sub-article (3) of Article 185, which states that an appeal to the. Supreme Court from a judgment decree, order, or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal. What normally happens? When the death penalty awarded by the Court of Session is confirmed by the High Court in a murder reference and the appeal of the convict is dismissed by the High Court while maintaining the judgment awarding the death penalty, the Supreme Court, in order to ensure the safe administration of justice, typically grants leave to appeal and provides ample opportunity for hearing in order to reevaluate and revisit whether the death penalty is rightly awarded or not. However, in the case of Mr. Bhutto, due to the direct appeal being preferred in the Supreme Court, at least one sure-shot expected right of appeal with the leave of this Court was lost, and the solitary remedy or opportunity that remained in the playing field was to move a review petition alone after dismissal of Appeal by this Court. XI. Interviews in Print and Electronic Media

21. Last but not least, the reference sent by the President of Pakistan is also structured and unfolded in paragraph 9, where the late Justice Nasim Hasan Shah, former Chief Justice of Pakistan, in his interviews on print and electronic media, admitted that the decision regarding Mr. Bhutto's appeal was made under coercion. This admission leaves no doubt in the mind of a sane and prudent person that it was a judicial murder and such admission constitutes a violation of his oath. According to the chronicles, J. Nasim Hasan Shah was appointed as an Ad Hoc Judge of the Supreme Court on 18.05.1977. The Lahore High Court delivered its judgment against Mr. Bhutto on 18.03.1978; the Supreme Court decided his appeal on 06.02.1979; the review petition was dismissed on 24.03.1979; and to close the chapter, the death penalty was executed on 04.04.1979. J. Nasim Hasan Shah retired on 14.04.1994, but was first interviewed by journalist Mr. Suhail Warraich in 1996, which interview was published in Jang Magazine. Another journalist/ host, Mr. Iftikhar Ahmed, interviewed him on 03.12.2003 for his TV show, aired on Geo TV Network. After laying down the robes of his office, his conscience awakened and forced him to make disclosures through print and electronic media. In both interviews, J. Nasim Hasan Shah revealed his own views and some other relevant facts. Though he retired in April 1994, he made certain revelations years later that added fuel to the fire and were also incorporated in the Presidential Reference as eye-openers. The remorse, confession, or admission of wrongness in the decision came much after the die was cast. It is quite a common phenomenon that poetry or its verses have multiple meanings, interpretations, or even double entendres, but quite fitting for the belated disclosures made in the interview under discussion, I wish to dedicate the following rhymes of the famous poet Dagh Dehlvi, which seems to match the situation:

22. According to the manuscript and DVD produced in Court during the hearing of this Reference, J. Nasim Hasan Shah expressed regret over the decision and admitted that Mr. Bhutto's punishment could have been reduced. He also revealed that some of the judges were under external pressure. J. Nasim Hasan Shah confessed in an interview with Iftikhar Ahmed, televised on Geo TV's programme "Jawab De". According to the gist of the interview, J. Nasim Hasan Shah stated that it was J. Maulvi Mushtaq Hussain's unjustness (zyaadati), as he was a very strong person and an enemy of Mr. Bhutto. He said that it would have been better if he had not been on the case. When the host asked if he still could have written a dissenting note, J. Nasim Hasan Shah replied in the affirmative, but explained that there was some weakness on his part as well as on the part of Mr. Bhutto's chief defense attorney, Mr. Yahya Bakhtiar, as the latter had somewhat annoyed the judges. The host further pointed out that while Mr. Yahya Bakhtiar might have annoyed the judges, J. Nasim Hasan Shah himself admitted that Mr. Bhutto should have received the benefit of doubt. J. Nasim Hasan Shah again responded in the affirmative. The host then asked if Pakistan's history would have been different today had he written a dissenting note, to which J. Nasim Hasan Shah responded that he does not know if it would have been different, but at least Mr. Bhutto's life might have been spared. He expressed regret about the situation, noting that Mr. Yahya Bakhtiar seemed unwilling to argue against the sentence or mitigating circumstances. Mr. Nasim Hasan Shah said that, as a human, a certain level of detachment occurs, but the role of the lawyer is to win the judge's favor, and in this case, the counsel had annoyed the judges. The disclosures made in the interview, though belated, not only blew the whistle on the biases involved but also pierced the veil of the entire trial and conviction, exposing blatant violations of fair trial principles with the complicity of the judges conducting the trial. XII. Mitigating Circumstances

23. A judge is not supposed to be influenced by appeasement or flattery, nor should they harbor malice or venom against any party while discharging their sacred duty of imparting o justice in accordance with the law. The conversion of a death penalty into life imprisonment does not equate to a clean chit for the convict; the punishment remains intact, albeit with a modified quantum. It is astonishing that, according to aforementioned interview excerpt, the judges of this Court, while hearing the appeal of Mr. Bhutto, were anxiously waiting for arguments on the quantum of sentence but felt annoyed by the counsel for the appellant. The tolerance and forbearance of judges must not be so fragile or touchy as to make them easily annoyed during the hearing of a case, which is a sacred duty and trust. If a judge becomes annoyed with a litigant or their advocate in an unruly manner and loses their patience, control, or peace of mind, it becomes difficult for them to impart justice in accordance with the law. Therefore, judges should remain calm, be good listeners, and instead of arguing themselves, which is the core function of lawyers, they must allow lawyers the opportunity to present their cases and arguments. According to the details of the interview, the judges hearing the appeal were annoyed, and if this was so, then of course, the possibility of an independent application of mind was remote. Decisions made in haste or anger are not only contrary to the basic norms of justice under the law of the land, but also violate the standards set forth in the injunctions of Islam for the administration of justice. Normally, in appeals filed before the Supreme Court in cases where the High Court has confirmed the death penalty, this Court, in order to ensure the safe administration of justice, not only grants leave but, at times, considers mitigating 'circumstances, altering the punishment without specific arguments. Sometimes, the Court even hints at this line of argument.

24. In the judgment of the Review Petition Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 741), this Court recorded submissions by Mr. Yahya Bakhtiar that, even if the petitioner's conviction were maintained, it was a fit case for the lesser penalty under Section 302 of the P.P.C., read with Sections 109 and 111, as the petitioner was guilty only of abetment and was not present at the scene of the murder. However, these arguments were conveniently set aside on the ground that they had not been raised during the hearing of the appeal. It was further articulated in the judgment of the review petition that during the hearing of the appeal the question of sentence was very much present before the Court, and it was the duty of the learned counsel for the petitioner to raise such points during that time, but the counsel was more focused on seeking acquittal than pleading for mitigation of the sentence.

25. In my opinion, almost in all cases where appeals are filed against confirmation of the death penalty, no advocate directly requests a conversion of the sentence to life imprisonment. Instead, they strive for a fair acquittal for their client, which is the professional duty of every lawyer. Simultaneously, the appellate Court, with its sense of right and wrong, always has inherent jurisdiction to affirm, set aside, or modify sentences. Even when dismissing an appeal and maintaining a conviction, the Court may alter or convert the sentence from death to life, or to a lesser punishment, to do complete justice, particularly when the punishment does not seem commensurate with the gravity of the charge, the role attributed to the convict, or in cases of doubt that a maximum punishment may not be justified. Despite the established bias and grave violations of natural justice and due process in the trial and conviction, the punishment in this case was maintained. The matter did not end here, but the Court also missed the train and failed to consider mitigating circumstances, despite overwhelming material on record which could have justified an acquittal or, at the very least, a conversion of the death penalty to life imprisonment. This omission was quite tragic, atrocious, and reprehensible.

26. Though this Court rendered its opinion on 06.03.2024, almost after 13 years, it may be said, better late than never. In my view, there was no plausible justification to delay the opinion on the Presidential Reference. I am at a loss as to why it was preserved in cold storage, left hanging, and why the hearing was not commenced immediately when the questions were framed by the respected bench of this Court. Anyhow, . It is an essential limb of civil and criminal administration of justice that "justice delayed is justice denied," which virtually means that cases, whatever they may be, should not be delayed or protracted indefinitely. Courts should decide matters within a reasonable period of time, as unjustified delays can emasculate fairness and render justice inconsequential or of little worth to the parties involved. On the other hand, another maxim, "justice hurried is justice buried," also has far-reaching implications, accentuating that undue haste or a compromise on natural justice and .due process may also prejudice the rights of the parties. In such situations, the possibility of injustice cannot be ruled out. The best course to avoid the adverse consequences of both the aforesaid legal aphorisms is to maintain a proper balance in the court docket, with a measured pace. More importantly, cases should not be delayed purposefully due to their profile or significance, as happened with this Reference, which awaited its long-pending turn for an opinion. XIII. Doctrine of repentance

27. Another important factor that cannot be overlooked is that Question No. 4 of the Presidential Reference framed by this Court had a direct nexus with the doctrine of repentance. For ease of reference, it is reproduced as under: - "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 and 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"

28. No opinion was rendered by this Court on Question No. 4, which was left unanswered for the valid reason that no assistance was provided on this question. Since this question on the doctrine of repentance was framed with reference to various verses of. the Holy Quran, forming a substantial segment of the Presidential Reference, I feel it should not remain untouched or unanswered. Repentance is expressed in Arabic as "taubah," which is a fundamental precept of the teachings of Islam. It involves the confession of sins, remorse for past wrongdoings, and a pledge to refrain from them in the future. Islam prescribes that repentance entails giving up the sin immediately, regretting what happened in the past, resolving not to go back to sinning, restoring others' rights or property, and fepenting before the agony of death [Ref: https://islamaa.infoien/answers/14289/how-to-repent-in-islam#:]. One of the wisdoms of repentance is that the believer experiences real regret and turns to Allah without wasting any time and strives not to repeat that mistake. Therefore, he repents in a true and sincere manner. He repents and keeps his word that he will remain on the right path until the end of his life [Ref: https://www.arabnews.pk/islam-perspectiveinews/841561]. Allama Ibn al-Shami, a renowned jurist, stated that Muslims should emulate the Prophet's example by following his teachings, and should not try hard to find wrongdoings. We must also strive to protect the excellent reputation of the Last Messenger of Almighty Allah and abide by what he did, accepting the repentance of one who repents. As he emphasized, "it is not for us to impose punishments and other means of deterrence on the basis of our personal inclinations. Rather, we are bound to act on what appears to be the law of our Prophet (peace and blessings of Allah be upon him)" [Ref: Zubair Saeed Sabri v. The State (PLD 2024 SC 681)].