ISLAMABAD: Chief Justice of Pakistan Asif Saeed Khosa observed on Tuesday that the Supreme Court might consider ordering re-trial of the Al-Azizia reference in which former prime minister Nawaz Sharif had been convicted or re-writing of the entire verdict or simply leaving it to the Islamabad High Court (IHC) to decide the pending appeal against the conviction.
“There is no denying fact that a factual inquiry should be conducted since the conduct of the accountability judge Muhammad Arshad Malik was not only unusual but also extraordinary,” observed the chief justice, wondering why the judge was meeting people who were connected with those he had sentenced.
The chief justice was heading a three-judge bench hearing three identical petitions on the video scandal involving judge Malik, all seeking a directive from the apex court for the constitution of an inquiry committee or a judicial commission. The petitions have been filed by Ishtiaq Ahmed Mirza, Sohail Akhtar and Tariq Asad.
The chief justice summoned Attorney General Anwar Mansoor for July 23 to assist the court in reaching a proper option on diverse issues, saying the court had to determine should it order re-trial or re-writing of the conviction order based on the same evidence, the recording of which was not in doubt, or just wait for the decision of the appeal against the conviction which was pending before the IHC.
Other options are rewriting judgement or waiting for IHC decision on appeal against conviction, chief justice observes during hearing on petitions on video scandal involving accountability judge
The chief justice pointed out that the apex court would have to keep in mind the effect of any conclusion of an inquiry commission, if appointed, on the pending appeal since its recommendations would only be an opinion, not necessary on the courts to follow.
The chief justice observed that issues before the apex court were manifold since it had to ascertain the credibility and authenticity of the video clips as well as its evidentiary value and also determine its relevancy in the matter and whether it was admissible in the eyes of the law.
The court would also determine which forum should receive the contents of the video clips and whether different laws — privacy laws, electronic crime or contempt of court ordinance — were applicable in the release of the video clips, the chief justice said.
Similarly, the conduct of the accountability judge was another aspect, he said, adding that the bench had to see to what extent should the Supreme Court lay its hands on the matter, but for now the court would only entertain suggestions.
During the hearing, Justice Umar Ata Bandial, a member of the bench, said materials were flying right, left and centre but the bench should allow dust to settle since intelligent consideration was the need of the hour before reaching any conclusion on protecting sanctity and dignity of the court.
He asked should the entire institution (judiciary) be kept hostage or allowed to prove its credentials, highlighting the need for taking the matter seriously instead of showing an emotional or knee-jerk reaction.
Justice Bandial observed that the matter involved sanctity of the institution, correctness of the judgement in the Al-Azizia reference and misconduct of the accountability judge which was extremely exceptional.
To protect sanctity of the institution, available laws would take care of the situation, while regarding correctness of the verdict, the IHC was already seized with the matter, Justice Bandial observed.
On initiating contempt of the court proceedings against the respondents for maligning the judiciary, the chief justice observed that the stage of contempt might come after dust settled otherwise it would mean entering the arena when the vision was already clouded with the dust.
Moreover initiating contempt of the court at this stage would be tantamount to presume that the allegations levelled against the accountability judge had been proved wrong, he added.
One of the petitioners, Tariq Asad, accused the intelligence agencies of making ingress on the domain of others institutions, instead of faithfully carrying out their job.
To establish the concept of judicial bias, the petitioner cited the 1998 Chilean dictator Gen Augusto Pinochet case when the House of Lords ruled against him for committing crimes against humanity.
But the ruling was overturned when Pinochet sought to set aside the verdict on the grounds that Lord Hoffmann – one of the members of the five-member bench – was an unpaid director and chairperson of the Amnesty International Charity Limited and his wife was also employed by the Amnesty International.
Likewise, the petitioner also cited the Malik Qayyum case in which the Supreme Court had set aside conviction against Asif Ali Zardari in the SGS Cotecna pre-shipment inspection case in view of the audio tapes of former judge Malik Qayyum.
Mr Asad argued that the conduct of the accountability judge had proved that he was committing corrupt practices since he had been meeting PML-N leaders at Jati Umra or Nawaz Shairf’s son while performing Umra.
Therefore, he said, the Supreme Court should appoint a judicial commission under a sitting or a retired judge of the court to unearth real facts, the petitioner contended.
Advocate Muhammad Ikram Chaudhry, representing another petitioner, Sohail Akhtar, argued that the matter was serious as the institution of judiciary was being maligned and its authority being eroded.
Arguing on behalf of Ishtiaq Ahmed Mirza, Advocate Chaudhry Munir Sadiq highlighted the need for safeguarding independence of the judiciary in view of the allegations levelled against it.
Since the instant case was of public interest litigation, the court could also grant any relief whichever it deemed fit, he contended.
Published in Dawn, July 17th, 2019