SC admonishes judge Malik for misconduct; says video of no legal use to Nawaz unless verified by IHC

Updated August 23, 2019

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A screengrab from a video shown by PML-N leader Maryam Nawaz at a press conference shows judge Arshad Malik (R) in conversation with PML-N supporter Nasir Butt (L). — DawnNewsTV/File
A screengrab from a video shown by PML-N leader Maryam Nawaz at a press conference shows judge Arshad Malik (R) in conversation with PML-N supporter Nasir Butt (L). — DawnNewsTV/File

The Supreme Court on Friday wrapped up a set of petitions on a video leak scandal involving former accountability court judge Arshad Malik.

"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), the judges said in the detailed verdict.

The verdict, authored by Chief Justice Asif Saeed Khosa, noted that five main issues needed to be attended by the top court; among them was the possible impact of the video — if proven to be authentic — on the ruling by judge Malik in the Al-Azizia Steel Mills corruption reference that had put away former premier Nawaz Sharif last year.

Separately, the Lahore High Court (LHC) formed a committee to proceed with an inquiry against judge Malik.

The top judge, in the Supreme Court judgement, had heavily reprimanded judge Malik for his conduct.

"His admitted conduct emerging from that press release and the affidavit stinks and the stench of such stinking conduct has the tendency to bring 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.

The five issues addressed by the top court are as follows:

1. Relevant forum for consideration in Nawaz case

The first issue that the SC said needed to be discussed was regarding the relevant forum or court which could presently attend to the video for any "meaningful consideration" in the Nawaz case.

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 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, 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.

2. Establishing video as 'genuine piece of evidence'

The judgement said that with the advancement of science and technology, it was now possible to conduct a forensic examination to determine whether an audio tape or a video was genuine and whether it had been edited, doctored or tampered with.

It was noted that judge Malik had "asserted" that the conversation mentioned in the video had been "distorted and twisted". The verdict added that as it had become easy to alter videos and audio tapes, it had become increasingly unsafe to rely on them as evidence without a forensic examination, audit or test.

"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."

3. If genuine, how will video be proven before court of law?

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

According to the judgement, an appellate court can take additional evidence under Section 428 of the Code of Criminal Procedure (CrPC).

"It goes without saying that in such a case the relevant video may be taken as (additional) evidence only after complying with the requirements detailed above for proving a video before a court of law," the judgement read.

4. Effect on the Nawaz case

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".

The chief justice said that they did not want to comment further on these aspects as the choices available to the IHC was within the jurisdiction and discretion of the high court, and they could exercise such choices on the basis of the facts found and the conclusions the court reaches.

5. 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 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 in the written verdict, adding that they hoped that the Lahore High Court would initiate the appropriate departmental disciplinary proceedings against judge Malik.

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.

'Is govt protecting judge?'

Last month, at an explosive press conference, Nawaz's daughter and PML-N leader Maryam had shared a video containing an alleged confession by judge Malik that he had been pressurised and blackmailed to convict her father in the Al-Azizia reference.

Judge Malik, however, denied the allegations.

As the video controversy continued to make news with Maryam releasing two more video clips "in support" of the first one, the IHC removed judge Malik from his post in July. On Thursday, the IHC repatriated him to his parent department, the LHC, so that disciplinary proceedings could be initiated against him.

The petitions filed by Ishtiaq Ahmed Mirza, Sohail Akhtar and Tariq Asad had sought the constitution of a probe committee or a judicial commission to look into matter.

A three-member bench of the apex court, comprising Chief Justice Khosa, Justice Sheikh Azmat Saeed and Justice Umar Ata Bandial, heard the petitions.

Malik's repatriation to LHC on Thursday came on the heels of the SC's August 20 hearing in which the court had termed the conduct of the judge "shameful" and asked why the law ministry had not transferred him back to the LHC.

The apex court had observed that it appeared that the law ministry was giving refuge to the controversial judge.

Read: Is govt protecting video tape scandal judge, wonders CJP

The top court had reserved its verdict on the petitions after an assurance was extended by Attorney General Anwar Mansoor that Malik would be repatriated to the LHC.

LHC forms inquiry committee

Chief Jusitce of the LHC 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, public relations officer Arif Dar said.

Malik had reported back to the LHC today, Dar said, as per the orders issued by the Islamabad High Court.

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 issued today.

Video leak controversy

On July 6, Maryam opened a Pandora’s box with a startling claim that the judge "confessed" he had been "pressurised and blackmailed" to convict her father in the Al-Azizia reference. A video containing the judge's alleged confession during his conversation with a 'sympathiser' of the PML-N, Nasir Butt, was screened during a hurriedly called presser at the party’s provincial headquarters in Model Town.

The next day, in a press release, the judge had denied being under any pressure, but admitted that Nasir Butt was an acquaintance.

Read: No pressure on me to convict Nawaz, says judge Arshad Malik; calls videos 'fake, lies'

Acting IHC Chief 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.

Justice Farooq decided to relieve Malik without conducting an inquiry since he was an official of the subordinate judiciary of the LHC. He directed the registrar office to write a letter to the law ministry regarding relieving judge Malik of his post and repatriating him to the parent department, the LHC.

Read: Maryam calls for Al-Azizia verdict to be declared void following judge Malik's removal

Shortly after this decision was announced, Maryam called for the verdict in the Al Azizia reference against her father to be declared void.

Meanwhile, judge Malik lodged a complaint with the Federal Investigation Agency which arrested an accused namely Mian Tariq Mehmood on a charge of recording an “immoral video” of the judge.

Judge Malik, in Dec 2018, had handed the ousted premier seven years in jail in the Al-Azizia reference. He, however, had acquitted him in a second reference related to Flagship Investments.

Nawaz is currently incarcerated at Kot Lakhpat jail while his sentence in the Avenfield corruption reference — which he was convicted in on July 6 last year — has been suspended.

Additional reporting by Rana Bilal