ISLAMABAD: The Supreme Court on Tuesday turned down Hussain Nawaz’s plea to stop the video recording of interrogations held by the joint investigation team (JIT) constituted to probe the allegations stemming from the Panama Papers case.

“We do not feel persuaded to countenance the request thus made,” said Justice Ejaz Afzal Khan, who heads the three-judge Supreme Court implementation bench, in a five-page order.

The order said the use of audio or video devices to facilitate the recording of statements had not been prohibited by any interpretation of the law, especially when the finished product to be used in the court to confront the witness was the written statement and not the audio or video recording.

Terms Hussain Nawaz’s petition ‘paranoiac’; AG seeks time to file reply on IB surveillance

In his plea, Hussain Nawaz had asked the Supreme Court to order the JIT to immediately cease the practice of recording the interrogations, and constitute an independent commission to inquire into the circumstances leading to the leak of his photo on social media.

“The concern voiced by the applicant (Hussain) being paranoiac appear[s] to be more of form rather than substance,” Justice Khan said, turning down the application.

In the age of computers, where almost everything was communicated and businesses of all kinds were transacted online, an emphasis on the form (or way) of doing something as it used to be done in 1898 would amount to nullifying the dynamics of scientific and technological advancements, which had not only liberated man from exhausting labour, but also made things easier, the order said.

Laws in many countries of the world had been changed and re-enacted, Justice Khan said. While audio or video recordings could not be admitted into evidence until the law was amended, as it had been in India and other countries, the use of technology to facilitate the recording of a statement could not be discouraged on the basis of so pedantic an interpretation of Sections 161 and 162 of the Criminal Procedure Code (CrPC).

A reading of Section 161 would reveal that a police officer investigating a case may examine any person acquainted with the facts of the case. Such a person will be bound to answer the questions relating to the case, except questions whose answers may expose him to a criminal charge or penalty of forfeiture.

Section 162 of the CrPC states that no statement made by any person to a police officer in the course of an investigation, if reduced to writing, should be signed by the person making it, since this tends to bind its maker and impairs his freedom to speak the truth in court.

While the recording of such statements by audio or video means could be treated on a par with a signed statement, in as much as it hampers the individual’s freedom to testify, the use of audio or video devices to facilitate the recording of such a statement cannot be said to have been prohibited by any interpretation of the law.

IB surveillance

Referring to the Intelligence Bureau’s alleged surveillance of JIT members, the Supreme Court asked Attorney General Ashtar Ausaf Ali to submit a concise reply, but warned that the rejoinder should be furnished to the court, not through media reports.

The court also made it clear that though no part of any judicial proceeding should be kept secret, the investigation being conducted by the JIT should be considered ‘privileged’.

Justice Khan observed that the court wanted the AG to look into all the dynamics behind the IB’s actions and their effects on the JIT’s final report.

“We want you to consider in every conceivable aspect to assist the court,” Justice Khan told the AG.

Justice Sheikh Azmat Saeed, however, was bitter over the government’s use of the media, rather than the AG’s office, to bring issues to the court’s notice. “Most government departments directly or indirectly involved in the current issue prefer to go to the press,” Justice Ijaz-ul-Ahsan regretted.

The court was moving in a fixed and focused manner and it was unthinkable that the speeches of politicians or articles in the media would change its mind, though it was amenable only to sane arguments, Justice Khan observed, adding that the court was not concerned with what appeared in the media.

The AG, however, argued that the court had given him a very onerous task, one that required time to weigh each word. But he assured that the dignity of the court would not be compromised in any way.

The AG also did not object to making public the JIT’s reply regarding the Hussain Nawaz photo, especially when the report did not identified the culprit by name.

The court then adjourned the matter until after the Eid holidays, subject to the availability of the bench.

But outside the court, it was business as usual. Speaking to reporters, ruling party MNA Talal Chaudhry said that their stance over the Hussain Nawaz photo leak had been vindicated by the JIT’s report on the matter.

Calling for an investigation of the person behind the leak, he said the PM’s son was well within his legal rights to move the complaint, adding that the government would consider what further legal action could be taken in this regard.

Published in Dawn, June 21st, 2017