ISLAMABAD: The Sup­reme Court on Tuesday held that the Islamabad High Court would be totally free in deciding an appeal against the conviction of former prime minister Nawaz Sharif in the Al-Azizia Steel Mills corruption reference.

“We would not like to comment on these aspects any further as the choices available with the high court ... would be 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 a three-page order issued by the apex court.

A three-judge SC bench headed by Chief Justice Asif Saeed Khosa had taken up a set of petitions seeking review of the Aug 23 order in which the apex court held that the video clip concerning accountability court judge Mohammad Arshad Malik would only benefit the petitioner if its genuineness was established and it was properly produced before the IHC in the pending appeal against Mr Sharif’s conviction. The video clip, which was aired by PML-N vice president Maryam Nawaz at a press conference in Lahore along with its transcripts, had never been duly proved in accordance with the law, the order had said.

Moved by senior counsel Khawaja Haris Ahmed on behalf of the former premier, the review petition had sought a clarification from the Supreme Court that the high court would not be prejudiced in deciding the appeal of Nawaz Sharif.

Authored by the chief justice, Tuesday’s order said the observation made in the Aug 23 verdict would allay the apprehensions raised in the review petition regarding tying the hands of the IHC in exercise of its jurisdiction and in choosing various options legally available to it in the matter of deciding the criminal appeal filed by the petitioner against his conviction and sentence recorded by the accountability court under the National Accountability Ordinance (NAO).

The apex court, while disposing of the review petition, said in its order that though such a clarification was hardly called for in view of what had already been observed, yet in the interest of justice, the clarification sought was hereby granted.

Highlighting precedent cases in the Aug 23 order pertaining to relevance and admissibility in evidence of an audio tape or video, the verdict said that this part of the earlier judgement under review meant only to be a compendium of legal opinion coming to court’s notice which might not be exhaustive and the door of further legal interpretation on the subject was not and could not be closed.

And to substantiate it, the order also cited the Aug 23 judgement in which it was held that the admissibility of an audio or video in evidence before a court of law and the mode and manner of proving the same before the court were issues which had been discussed in many cases in the country and abroad and a summary of the case law on the subject might advantageously be recorded here.

“The main grievances voiced through these review petitions are that the petitioner had not been issued any notice before passage of the order under review which had the tendency of tying the hands of IHC in exercise of its jurisdiction,” the order said, adding that it might be straightaway observed that the petitions of Nawaz Sharif in which the Aug 23 order under review was passed had never been admitted for regular hearing because the Supreme Court had found that the stage was not appropriate for interference in the matter by this court.

In his review petition, Mr Sharif had contended before the Supreme Court that the audio or video recording was admissible under Article 164 of the Qanoon-i-Shahadat Order (QSO) 1984; besides, the law did not impose any conditions that only such 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, it said, such observations reflected 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 had contended there was no precedent or support of law to micro-manage the jurisdictional functions of the appellate court [IHC] that too in a prospective or anticipated list of cases.

Published in Dawn, December 11th, 2019