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The third phase of the Karachiabad High Court’s ruling concerning the death of Benazir Bhutto can be termed as a disaster. Why is this? What happened in the third phase? Why is it so disastrous? What does it portend for future legal battles over the disputed properties and issues? To understand this you have to review what happened in the second and third phases of the trial, which are the discovery phase and the admissibility phase.

During the discovery phase the investigating officer of the police discovered that the vehicle in which Benazir Bhutto was travelling in on the day of his murder had been stopped on the Islamabad-Lahore highway for driving without a license. The investigating officer found that the license had been suspended and the driver had no valid documents for the vehicle. This is an important discovery as it establishes the fact that the killing of Benazir occurred in the context of a crime, and that the property in question could have been lawfully taken from him in the circumstances underlying the crime.

But how did the investigating officer arrive at this finding? By looking at the testimony of the arresting officers, it appears that they were not themselves too keen about pursuing a strong prosecution. They were more interested in ascertaining the truth of the incident, in particular with regard to who had actually committed the crime. Very little effort is evident in the way the arresting officers testify to their findings in this regard. There is even less likelihood of any witness to come forward to testify in the probate court that he heard the conversation in which Benazir was killed.

Once the investigating officer has produced his report to the prosecutor, it is up to the court to take its own course. It is perfectly within the bounds of law to publish the report in the trial court and allow the jury to consider the evidence even before reaching a verdict. That does not mean that the third phase of the trial, which is the discovery phase, can be discounted.

There may well have been mistakes made in the handling of the car and other evidence. But that would have occurred irrespective of whether the car evidence was found on the day of Benazir’s murder or any other day. If the arresting officers had known about the discovery, a search could have been made before the third day of Benazir’s death. And if the car was not found on the day of Benazir’s murder, it could still have been found at some stage of the investigation. If an error is made in the handling of the car evidence it can be established that an innocent person could still be convicted for the murder.

The probate court did order an accounting of the car’s movements on the third day of Benazir’s murder. But even that may well have been done incorrectly. For the court did not require the arresting officers to produce a transcript of the account of the movements of the car on the third day. If the statements of witnesses were suppressed at the discovery phase of the trial court could apply to argue that the statements should have been admitted as having been true at the trial court.

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