–SC says leaked video cannot be of any benefit to ex-PM unless it is properly produced before IHC in pending appeal, its genuineness is established
–CJP says IHC alone at present could ‘maintain, alter or set aside conviction and sentence on basis of evidence brought on record’
–Says it will be unsafe to rely on video, audio as evidence without a forensic examination in light of ever-changing technology
–Top court rebukes judge Malik for ‘disgusting, sordid’ conduct that brought shame to entire institution
ISLAMABAD: The Supreme Court (SC) on Friday said a leaked video of former accountability judge Arshad Malik –the presiding judge in Nawaz Sharif’s case— will be of no benefit to former prime minister Nawaz Sharif unless it is “properly produced before the Islamabad High Court and its verifiability is proved in accordance with the law”.
The apex court announced this in a 25-page long decision as it wrapped up petitions involving judge Arshad Malik that were filed in the top court after a video of the judge was released in a press conference by the Pakistan Muslim League-Nawaz (PML-N) leadership.
During the presser, PML-N Vice President Maryam Nawaz had argued that the judge was coerced to rule against Nawaz Sharif as he was being blackmailed by ‘certain quarters’ over a controversial video. She had demanded acquittal of her father in light of the video.
The judge responded a day after the presser, saying the PML-N had tried to blackmail him using the controversial video –filmed in Multan over a decade ago— and also tried to buy him off. He had also admitted to meeting with Nawaz Sharif at Jati Umra and Hussain Nawaz in Saudi Arabia. The judge was subsequently suspended.
“We find that it may not be an appropriate stage for this court to interfere in the matter of the relevant video and its effects” since the video may have relevance to a criminal appeal presently sub-judice before the Islamabad High Court (IHC), said the top court in a detailed verdict authored by Chief Justice Asif Saeed Khosa.
The top judge noted that following the conviction and sentencing by a trial court, an appeal submitted by Nawaz against the conviction was pending before the IHC.
Therefore, the court said that there “cannot be two opinions” that the IHC could alone at present “maintain, alter or set aside such conviction and sentence on the basis of the evidence brought on the record”.
“Any commission constituted by the government or by this court, any inquiry or investigation conducted by the police or by any other agency and any probe into the matter by any other institution or body can only render an opinion in the matter of the relevant video which opinion is treated by the law as irrelevant and it cannot per se be treated as evidence for the benefit of Mian Muhammad Nawaz Sharif in his appeal pending before the Islamabad High Court, Islamabad.”
“The relevant video cannot be of any legal benefit to Mian Muhammad Nawaz Sharif unless it is properly produced before the Islamabad High Court in the pending appeal, its genuineness is established and then the same is proved in accordance with the law for it to be treated as evidence in the case,” the verdict read.
According to the judgement, if the high court arrives at the conclusion that the trial process and the evidence recorded during the trial were not affected by the conduct of judge Malik, then the IHC would have the option “either to reappraise the evidence itself or and decide the appeal on its merits after reaching its own conclusions […] or to remand the case to the trial court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded”.
In the verdict, the top judge questioned the genuineness of the video in the light of ever-changing technology, saying it had become too easy to tamper with video and audio tapes, so it would be unsafe to rely on them as evidence without a forensic examination, audit or test.
The accountability judge had claimed that video was “distorted and twisted” after it was released.
“The standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability,” the verdict noted.
CONDUCT OF JUDGE ARSHAD MALIK:
The top court said that judge Malik’s conduct had the tendency to bring a “bad name to the entire judiciary as an institution”.
“His admitted conduct emerging from that press release and the affidavit stinks and the stench of such stinking conduct has the tendency to bring a bad name to the entire judiciary as an institution,” the judgement read.
“His sordid and disgusting conduct has made the thousands of honest, upright, fair and proper judges in the country hang their heads in shame,” the CJP said.
Concluding the verdict, the SC bench noted that it may not be the appropriate stage for the top court to interfere in the matter, particularly because the video may have relevance to a criminal appeal pending before the IHC.
“A criminal investigation is already being conducted into the matter by the Federal Investigation Agency, some other offences or illegalities under some other laws referred to by the learned attorney general might also entail inquiries or investigations by the competent agencies or fora and any probe into the matter by a commission to be constituted by the government or by this court may end up only with an opinion which may have no relevance or admissibility in the relevant appeal pending before the Islamabad High Court, Islamabad,” the judgement read.
