The Supreme Court on Friday wrapped up the video case involving accountability court judge Arshad Malik who had convicted former prime minister Nawaz Sharif in the Al-Azizia corruption reference.
A three-member bench of the apex court comprising Chief Justice Asif Saeed Khosa, Justice Mazhar Alam Khan Miankhel and Justice Qazi Amin Ahmed heard the petitions.
“The relevant video cannot be of any legal benefit to Mian Muhammad Nawaz Sharif unless it is properly produced before the Islamabad High Court, Islamabad 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 25-page verdict read. “It must never be lost sight of that 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 judgment noted.
The verdict authored by Chief Justice Asif Saeed Khosa stated that five issues needed to be attended to by the apex court.
1) Which is the court of forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Nawaz Sharif?
2) How is the relevant video to be established as a genuine piece of evidence?
3) How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law?
4) What is the effect of the relevant video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of Mian Nawaz Sharif?
5) The conduct of the learned judge namely Arshad Malik in the episode.
The judgement listed numerous requirements in order to prove an audio tape or a video before a court of law. Among others, the requirements include:
No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.
A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of audio tape or video mentioned in the petitions is per se admissible in evidence.
Accuracy of the recording must be proved and satisfactory evidence has to be produced so as to rule out any possibility of tampering with the record.
The person recording the conversation or event has to be produced and must produce the audio tape or video himself.
An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
The source of an audio tape or video becoming available has to be disclosed.
The verdict stated that it was not an appropriate stage for the Supreme Court to interfere in the matter of the relevant video and its effects, particularly when the video may have relevance to a criminal appeal presently sub judice before the Islamabad High Court.
The chief justice noted that following conviction and sentencing by a trial court, an appeal submitted by Nawaz against the conviction was pending before the IHC. Therefore, the court said, 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’. It added that 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 attorney general might also entail inquiries or investigations by the competent agencies or forums 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.
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 will 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.”
The chief justice said that they did not want to comment further on these aspects as the choices available to the IHC are within the jurisdiction and discretion of the high court, and they can exercise such choices on the basis of the facts found and the conclusions the court reaches. On Arshad Malik, the judgment observed that “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.” “His sordid and disgusting conduct has made the thousands of honest, upright, fair and proper judges in the country hang their heads in shame,” it read.
“The learned attorney general has assured the court that the said judge shall be repatriated to the Lahore High Court, Lahore, immediately and we expect that after his repatriation appropriate departmental disciplinary proceedings shall be initiated against him by the Lahore High Court forthwith,” stated the judgment. Meanwhile, LHC Chief Jusitce Sardar Shamim Khan has summoned a meeting of the court’s administrative committee on August 26 to discuss the future course of action against judge Malik.
The LHC registrar said that Malik will face an inquiry pertaining to the controversial video released by Maryam Nawaz. The inquiry will be conducted in light of the Supreme Court verdict.
