SC says its observations will not influence high court proceedings in judge video scandal

Updated December 10, 2019

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The Supreme Court on Tuesday accepted former prime minister Nawaz Sharif's concerns against the observations made by the apex court in its August 23 verdict. — AP/File
The Supreme Court on Tuesday accepted former prime minister Nawaz Sharif's concerns against the observations made by the apex court in its August 23 verdict. — AP/File

The Supreme Court on Tuesday made it clear that its earlier observations — in which it held that the video clip concerning former accountability court judge Mohammad Arshad Malik will only benefit Nawaz Sharif if its genuineness is established — will not influence high court proceedings.

The court made this statement while hearing the former prime minister's review petition against the observations made by the apex court in its August 23 verdict.

A three-member bench of the Supreme Court, comprising Chief Justice Asif Saeed Khosa, Justice Sardar Tariq Masood and Justice Syed Mansoor Shah, wrapped up the review petition filed by senior counsel Khawaja Haris Ahmed on behalf of Nawaz.

The review petition pleaded that the verdict of the apex court was per incuriam (through lack of care) since it was passed without jurisdiction and therefore merited to be reviewed.

During the proceedings of the review petition today, the court said its observations will not influence proceedings in the high court. Chief Justice Khosa said the high court was independent in making its decisions, adding that they had written this before and would do so again.

On August 23, the apex wrapped up a set of petitions on a video leak scandal involving judge Malik. The top court had held that the video clip of Arshad Malik would only benefit the former premier if it was properly produced before the Islamabad High Court (IHC) in a pending appeal against his conviction.

The video clip along with its transcripts, which was shown by PML-N leader Maryam Nawaz in her media interaction in Lahore, had never been duly proved in accordance with the law, the order had said.

On July 6, Maryam opened a Pandora’s box with a startling claim that judge Malik "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. In July, the IHC removed judge Malik from his post.

A miscellaneous petition will be heard in the IHC on December 18 seeking a forensic test of the audio/video in the scandal. The same day Nawaz's appeal against his conviction in the Al-Azizia Steel Mills corruption reference and National Accountability Bureau's (NAB) appeal against the acquittal of Nawaz in the Flagship Investment reference will be heard.

In Dec 2018, judge Malik had handed the ousted premier seven years in jail in the Al-Azizia reference but acquitted him in the Flagship Investment reference.

After a series of cabinet meetings and court hearings as well as an exchange of statements between the PML-N and the ruling PTI, Nawaz flew to London for medical treatment on November 19. Nawaz was granted bail by the IHC on humanitarian grounds. He also obtained bail in the Chaudhry Sugar Mills case, in which he is a suspect, from the Lahore High Court.

Nawaz's review petition

In his review petition, filed in October, Nawaz had contended that the audio or video recording was admissible under Article 164 of the Qanun-i-Shahadat Order (QSO), 1984. Additionally, the law did not impose any conditions that only evidence obtained through modern devices would be admissible which were recorded by persons whose part of routine duties was to record audio or video.

Moreover, such observations reflect that as if the court was saying that the process of trial and evidence recorded during the trial were not affected by the conduct of the trial court judge.

The petition contended that there was no precedent or support of the law to micro-manage jurisdictional functions of the appellate court (IHC) that too in a prospective or anticipated list of cases.

The petition asked what the possible motive for the retention of judge Malik in Islamabad for almost six weeks after his release/removal from duties as judge of the accountability court despite the clear intention expressed in the IHC registrar's July 11 letter for relieving him of his duties so that he could be repatriated to his parent department, the Lahore High Court

Can it be assumed, the petition contended, that judge Malik was being retained in Islamabad only to use him to submit an application for registration of an FIR as a counterblast to off-set the impact of the video and audio recording played at the press briefing held on July 6 in Lahore.

The petition wondered whether the district and sessions judge, after being relieved from duties, could lodge a First Information Report (FIR) without permission or approval of the IHC chief justice, which was his parent department.

The petition highlighted that the appeal against the conviction of Nawaz under the National Accountability Ordinance, 1999, was pending before the IHC. Therefore, it added, the Supreme Court had no jurisdiction under any provision of the NAO or even otherwise to pre-empt the decision with respect to any manner that fell within the jurisdiction of the high court concerned in its appellate jurisdiction.

Video leak scandal

Following the release of the video that sparked the controversy, judge Malik had denied being under any pressure.

Acting IHC Chief Justice Aamer Farooq had 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.

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.

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 August, the IHC repatriated him to his parent department, the LHC, so that disciplinary proceedings could be initiated against him.

Additional reporting by Tahir Naseer