This is the fourth and final part in a series of posts about the murder of Hayat Khan Sherpao.
Click here for the 1st part.
Click here for the 2nd part.
Click here for the 3rd part.
The Relevance of the Verdict
The decision of the court inAsfandyar Wali v the State is an example of the manner in which Pakistan’s superior courts often deal with our politically controlled (and patently incompetent) police forces.
The trial and verdict also shed some light on an issue that has been addressed by the authors of this blog on multiple occasions; namely the Pakistani fondness for conspiracy theories.
Also, just a quick note for those of you who are interested, the Judges in this case were Abdul Ghani Khan Khattak, and S. Usman Ali Shah, JJ.
The case was decided on the 13th of July 1977, 11 days after Bhutto was overthrown by Zia for the murder of Ahmed Raza Kasuri’s father. The timing of the decision probably isn’t a coincidence, and the judgment should be read accordingly.‘They did it. We saw them do it.’
Now obviously the police weren’t charging Asfandyar Wali and Nisar Khan with actually having physically planted the bomb that killed Hayat Sherpao. Rather, the two were accused of having ordered the attack and supplied the bomb to the two young men who supposedly went on to plant it, namely Anwar Bacha and Amjad Ali.
Anwar Bacha was the nephew of Shahzad Gul Bacha, who was an NAP senator at the time, and who was also a senator during Musharrafs’ recent caretaker government.
There are no specific facts pertaining to the background of of Amjad Ali within the judgment.
One of the main difficulties faced by the prosecution was in establishing a connection between Amjad and Anwar on the one hand, and Asfandyar Wali and Nisar Khan on the other. Consequently, the testimony of the witnesses summoned to court primarily focused upon bridging that gap, and fell into three categories:
1) Cab drivers (who had transported Amjad and Anwar back and forth between Asfandyar Wali, Nisar Khan and the scene of the crime)
2) Police Officers (who encountered Amjad and Anwar at different locations around the city, most importantly at Asfandyar Walis house)
3) Relatives of the accused (who were said to have seen Amjad and Anwar with the alleged tape-recorder-bomb they obtained from Asfandyar)
‘The Cab Drivers Saw Them…’
There were two main Cab Driver witnesses. Both were held at the police station for a considerable amount of time, casting serious doubt as to whether their factual account was actually their own. One of the cab drivers was said to have driven Amjad and Anwar to Asfandyar Walis address to enable them to pick up the tape recorder bomb.
That cab driver admitted:
A) that he had been arrested around the 20th ofFebruary.
B) that it took 12-13 days for his statement to be recorded.
C) that he had been in police custody since his arrest, up till the 16th of June, for nearly four months.
Unsurprisingly the court really wasn’t inspired with confidence, and his testimony didn’t help matters:
“It appears that [Cab Driver No 1], a sworn witness, is trained in the art of manipulating things… Under the circumstances it would thus be highly imprudent to place any reliance on a person of this demeanor.”
In relation to the other cab driver, I’ll skip the prosecution’s stupidities. By that stage anannoyed and exasperated High Court Bench had passed a number of snide remarks during the course of proceedings, and said:
“The Prosecution has indeed caused us all bewilderment in this case and thus at appropriate stages, we were driven to pass some remarks in order not only to refresh ourselves but to place our finder on its highly exaggerated account.
[Cab Driver No 2] has not satsifed the test of a truthful witness and thus, as a matter of sheer logic, it can be conveniently concluded that he had been arrayed as an impostor witness to depose in thecase. “
‘And So Did These Police Officers’
Tullas are generally pretty useless witnesses in Pakistan. Whats more, the prosecution’s own stupidity in coercing the cab drivers hadn’t helped the credibility of their police witnesses. The court noted:
“It is a matter of record that in the present case a good many witness were forced by the investigating agency to appear in the witness box …”
The Judges didn’t think that the police officers were any exception. Of particularly annoyance to the court was the fact that it took the investigating agency two months to record a key police officers statement, despite the fact that the officer in question had been on permanent duty snooping outside Asfandyar Walis house for two and a half years prior to the murder, and was consequently well known to the investigating agencies. The Judges wondered out loud as to why he wasn’t called to give a statement the moment Asfandyar Wali was arrested.
It was held that all of this meant:
“[The witness] must be held to have spoken in the case what was suggested to him by his fellow men in the investigating agency.”
In other words, they took some time to make the case up, and then belatedly informed the police officer to give a statement to that effect.
‘And We Also Have Some Insane Relatives of the Accused…’
Another central prosecution witness was one Mr.Mian Mohibbudin. He was the cousin of Ahmed Farooq (one of the co accused who Inspector Aurangzeb had threatened with Sardar Daud’s penis replica).
On Mohibbudin’s own bizarre account, he developed some mental health issue and was admitted to hospital on the 7th of February, the day prior to the murder. He said that Anwar and Amjad came to visit him in hospital on that same day whilst carrying the tape recorder bomb with them.
During his cross examination however, Mohibbudin admitted that his father was in the Peoples Party and that the PPP side of his family had been having an armed squabble with Ahmed Farooq’s NAP side of his family for some time.
The Court asked the obvious question as to why the Amjad and Anwar would:
A) carry a tape-recorder-bomb around everywhere openly like complete idiots;
B) visit a mental patient the day before the murder for absolutely no reason;
C) show the mental patient the tape-recorder bomb despite the fact that he was the familial arch nemesis of their co-conspirator Ahmad Farooq.
The Court took Mohibbudin to be a partisan witness, and seemed to be quite annoyed with him. When discussing the standard of scrutiny to be applied another police witness, they gratuitously referred back to him saying:
“Fortunately, [this other witness] is not a mental case like Police Witness Mian Mohibuddin, in order that he should be shown any indulgence.”
So to cut an extremely long and convoluted transcript short, the testimony of all the police witness was taken to be concocted, inconsistent ramble.
The Confessions, and the Final Verdict
At this dire stage in the verdict, the prosecution must have been hoping beyond hope that their phallus induced confessions would rescue their case. It is worth reading what the Court’s verdict on this point:
“In the circumstances of the case we feel convinced that the accused appellants were subjected to mental as well as physical tortures. Unfortunately, a Senior Minister of the Provincial Governments had suffered his death in the incident. Therefore the police cannot be expected to have submitted a report to the higher authorities that as a result of their investigation, the culprit’s were not traced.
In view of this, it would therefore be obvious that once the police laid their hands on the accused appellants in this case they would not have left them excused until they were obliged to confess that they were responsible for the crime.
In a case of this nature it is a matter of common knowledge that the police must have employed all methods of physical violence against the accused appellants to agree to the making of the so called confessions. The practice f subjecting the accused to physical violence is yet to be a forgone myth in this Sub Continent.
“…[With] regard to Asfandryar Wali and Nisar Muhammad Khan accused appellants, it is also a matter of record that hey remained in the custody of the police for over one and a half months and were never produced before any magistrate. In the circumstances the assertion of the accused appellants that the confessions were extorted from them under duress must be taken of by the court.”
“…We regret to observe that the treatment meted out to the accused appellants while they were in police custody was an act of wanton assault directed against the sanctity of human dignity which is impermissible in a civilized society.”
The case pretty much ended there. The Court even held that the tape recorder couldnt have contained the bomb, as it was alleged to have been placed at some distance, whereas the explosion came from under Sherpao’s feet. Asfandyar Wali, Nisar Khan, Ahmad Farooq, and the NAP were consequently acquitted.
I do not know what happened to Senator Bacha’s son and the illustrious Amjad.
A Brief Note on The Hyderabad Tribunal
The Hyderabad Tribunal that ran concurrently with the trial was equally and widely regarded as a farce. Bhutto’s government prepared a detailed reference to the Supreme Court, seeking to legally confirm the banning the NAP. The reference, alleged that the NAP was an anti-state political organization, and was bent upon destroying Pakistan in accordance with Sardar Daud’s pro-soviet Afghan government.
Wali Khan, and 50 odd Bhutto opponents from the Frontier and Baluchistan were tried for high treason inside Hyderabad jail (hence the name). The Tribunal was headed by Chief Justice Hamood-ur Rehman. While all 50+ were acquitted of the charge of murdering Hayat Khan Sherpao, the decision to ban the NAP for their successionist activities was upheld by the Supreme Court.
As with Asfandyar Wali vs The State, the incompetence of the prosecution continued to be met with contempt from the Wali Khans. At one stage, the prosecution alleged that Wali Khan had been sent Rs 20 million by Indira Gandhi through a certain emissary, presumably to further his anti-state agenda.
Wali Khan (being Wali Khan) promptly sued the emissary, hoping either to recover the Rs 20 million allegedly sent, or at least to prove a point. He figured that if he was going to be charged with receiving the bribe, he he might as well receive it and enjoy it.
Much like in the May 12th inquest, the Government used a standard delay & overwhelm tactic, and bombarded the court with witnesses, specifically about 455 of them. It took over two years to go through the testimony of 22 of those witnesses. Annoyed and exasperated, Wali Khan went on another (justified) rant. Try and picture Hamood-ur Rehman’s face when Wali Khan tells him:
“My Lord, please arrange “Aabe-Hayat” (the alexir of life) for us so that we could live till the completion of the proceedings of this trial.
Take it yourself also to enable your honor to write the judgment in this case. After completion of the proceedings, give it to Mr. Bhutto also so that he could live till the decision of the case.
Producing only 22 witnesses in two and a half years means that a half century will be required to hear the statements of witnesses of the prosecution and the same number of years will be required for their cross examination.”
Eventually Wali Khan got bored with trying to defend himself and resigned himself to his fate, declaring that the tribunal included biased judges and that a decision to convict had already been made.
Fortunately for him, Bhutto was eventually overthrown (and hung). General Zia-ul Haq wound up the Hyderabad tribunal, and by 1979 all the detainees were released back into politics.
So despite the public outcry, the banning of the NAP, the nationwide arrests, the investigation, the convoluted accusations, the detentions, the torture and not least the whole High Court Trial, Supreme Court Trial and Hyderabad Tribunal, the central question as to who killed Hayat Khan Sherpao remains unanswered.
It seems the Pakistani way of resolving any issue (be it the question of a murder or our national identity) is to run around in circles until everyone is utterly fed up, and then drop the debate altogether because by then some other crises will have come up anyway. Every gaping hole in consensus is thereby allowed to persist and is instead ignored as much as it can be.
Anyway. To add to the conspiracy theories put forward by the prosecution and the state, here are some other tales that filled that particular void of information. Who knows, one might even be true.
Bhutto Murdered Sherpao:
(1) Because of his impending desertion/defection to the NAP, and/or
(2) Because Sherpao and Benazir had crushes on each other OR had an affair OR had been discussing marriage AND ZAB wanted Benazir to marry Amin Makhdoom Fahim, and/or
(3) Because Sherpao didn’t want to desert or defect but rather wanted to lead a coup within the PPP and intended to supplant ZAB as leader and/or
(4) Because Bhutto needed someone senior enough to die who’s death he could plausibly blame on the NAP and thereby have an excuse to ban the party and arrest the last of his opponents.
On (2), the supposed love triangle of Makhdoom Amin Fahim, Benazir and Hayat Khan Sherpao is a little rich. It would add an interesting dimension to Zardari’s treatment of Amin Fahim, but really thats probably just wishful speculation.
On (4), this is pretty flawed. The fact that the NAP was exonerated for the murder runs contrary to any conspiracy premised on an intention to blame them. The charge that they killed him may have been conveniently possible following Sherpao’s death, but it makes no sense that it was the motivating cause of the murder.
(B) KHAD and/or the KGB assassinated Sherpao