Khudayar Mohla –
While announcing its detailed verdict on pleas seeking inquiry into video controversy of former Accountability Court (AC) Islamabad judge Arshad Malik who had been alleged to award sentence to ousted premier in Alaziza reference under coercion, the top court said on Friday admissibility of the video as evidence will not be possible until its genuineness is established before Islamabad High Court in pending appeal of Sharif against the sentence.
Marraym Safdar, daughter of the incarcerated Nawaz Sharif had disseminated a video during a press conference last month on July 16 containing an alleged confession by judge Arshad Malik that he had been pressurised and blackmailed to award sentence to her father in the Al-Azizia reference.
At the very next day, in a press release, Arshad Malik had denied being under any pressure, however, he admitted that Nasir Butt was an acquaintance who was shown in the video. To which, acting Chief Justice of the IHC Justice Aamer Farooq summoned the accountability judge twice and then directed him to submit an affidavit to explain his position. Judge Malik in his affidavit had said that he had been blackmailed by PML-N supporters because of an “immoral video” and admitted that he had met Nawaz at his Jati Umra residence and Hussain Nawaz in Saudi Arabia.
Three petitioners including Ishtiaq Ahmed Mirza, Sohail Akhtar and Tariq Asad advocate had invoked the Supreme Court jurisdiction seeking directives for constitution of a probe committee or a judicial commission to look into matter soon after Marraym Safdar press conference.
Three-member bench of Chief Justice Asif Saeed Khan Khosa, Justice Azmat Saeed Sheikh and Justice Umar Ata Bandial conducted three hearings in the matter and finally said in the detailed judgment, “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”.
Chief Justice Asif Saeed Khan Khosa authored a 25-page verdict saying, “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, particularly when the said video may have relevance to a criminal appeal presently sub judice before the Islamabad High Court, Islamabad”.
The bench said as many as five issues needed to be attended by the top court including authenticity of the leaked video, its evidential value, appropriate forum for adjudication if the video evidence is admissible, impact of the video over appeal pending before Islamabad High Court against sentence of Nawaz Sharif as well the future of accountability court judge Arshad Malik.
“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 verdict read.
As the video controversy continued to make news with PML-N leader Maryam Safdar releasing two more video clips “in support” of the first one, the Islamabad High Court (IHC) removed judge Malik from his post in July and repatriated him to his parent department, the Lahore High Court (LHC), so that disciplinary proceedings could be initiated against him.
The court said in its verdict if the High Court comes to the conclusion that the process of trial and the evidence recorded during the trial of Mian Nawaz Sharif were not affected by the conduct of the learned Judge of the trial court then the Islamabad High Court shall have the option either to reappraise the evidence itself and decide the appeal on its merits after reaching its own conclusions on the basis of the evidence available on the record 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.
“We would not like to comment on these aspects any further as the choices available with the High Court in the above mentioned eventualities would lie within the jurisdiction and discretion of the High Court and such choices would be exercised by it on the basis of the facts found and the conclusions reached by it”, said the verdict.
SC admonishes Arshad Malik:
While giving its observation over the conduct of former judge of the accountability court Islamabad Arshad Malik in the episode the bench said Arshad Malik sordid and disgusting conduct has made the thousands of honest, upright, fair and proper Judges in the country hang their heads in shame.
Citing the press release and affidavit of Arshad Malik the bench said in the verdict, “He had unabashedly admitted in the press release and the affidavit that he had a shady past and had skeletons in his cupboard for which he was vulnerable to blackmail, during the trial being conducted by him he had been holding private meetings with sympathizers of the accused person being tried by him – he was threatened and inducements were offered to him during the trial but he had not reported the same to any superior authority and had never considered recusing from the trial, after convicting the accused person in the trial he had met the convict at his residence in a different city, he had even met a son of the convict in a different country and finally he had tried to help the convict in his appeal filed against his own judgment by dictating some grounds of appeal and pointing out some stated weaknesses in the case against the convict convicted by him. Such admitted conduct of the Judge was shocking, to say the least, besides being abhorrent and offensive to the image of a Judge in the society. http://www.supremecourt.gov.pk/web/user_files/File/Const.P._10_2019.pdf
