ISLAMABAD: The sacking of accountability judge Mohammad Arshad Malik, who convicted former prime minister Nawaz Sharif in the Al-Azizia reference, has created doubts and left many question marks on the fate of the sentence the judge had handed down.
Many believe that dismissal of the judge by the administrative committee of the Lahore High Court (LHC) has dented the conviction adversely and may have politically vindicated the stand of the PML-N leadership, but it will not help quash the conviction in its entirety unless the Islamabad High Court (IHC), where an appeal against the verdict is pending, remands the case back to the accountability court for a fresh trial.
“The sacking is an official acknowledgment that the judge who presided over the accountability court committed misconduct, but it is the appellate court which will ultimately determine the fate of the conviction,” senior lawyer Azam Nazeer Tarar.
However, he agreed that judge Malik still had remedy to exhaust in his favour by challenging his removal before the Service Tribunal against the order of the administrative committee of the high court.
The accountability court judge become the centre of controversy when in Aug 2019, PML-N vice president Maryam Nawaz claimed that he had confessed that he had been pressurised and blackmailed to convict Nawaz Sharif in the Al-Azizia reference.
Lawyers believe dismissal has politically vindicated PML-N leadership’s stand but fate of verdict will be decided by IHC
A video clip containing the judge’s ‘confession’ during his conversation with a ‘sympathiser’ of the PML-N was screened at her press conference at the PML-N provincial headquarters in Model Town, Lahore.
In response, the former judge himself issued a press statement denying that he had been blackmailed and dubbing the video clip fabricated.
Arshad Malik also demanded legal action against those behind the move, saying the video was not only contrary to the facts but also an attempt to hatch a conspiracy to present conversations made on different occasions by twisting them out of context.
Pakistan Bar Council (PBC) vice chairman Abid Saqi told Dawn that sacking of the accountability judge had far-reaching consequences vitiating the entire justice system.
The development pointed towards cosmetic justice, far from the real judicial system, indicating decadence and rot in the judicial hierarchy, he feared.
It becomes more frightening when visualised against the backdrop of the 2001 Supreme Court judgement in the Asif Ali Zardari case in which some audio tapes and transcripts were produced before the apex court against convictions during the hearings of an appeal in the SGS pre-shipment inspection commission, he recalled. The purpose of the audio tapes was establishing bias of the then Lahore High Court judge, Justice Malik Qayyum, who had dismissed the appeal of the convicts (including Asif Zardari), he said.
Mr Saqi hinted that the PBC might take up this matter and debate the efficacy and transparency of the judicial system to arrive at some future line of action.
Meanwhile, a senior counsel on condition of anonymity explained that the Supreme Court had in the 2001 Asif Zardari case held that if there was any allegation of personal bias of a judge, this question should be satisfied: “Was there in the mind of the litigant, a reasonable apprehension that he would not get a fair trial.”
Arshad Malik had not only jeopardised his own integrity and credibility but his conduct had also put on trial independence and reliability of the judicial system in Pakistan, he regretted, adding that the judge’s removal, though delayed, nonetheless was a step in the right direction to control the damage and curtail such disasters in future.
His removal had rendered the conviction of Mr Sharif unsafe; however, the IHC would exercise its discretion in choosing between remanding the case to the accountability court for a fresh decision and deciding the appeals itself on the basis of evidence available on file of the court, the counsel said.
In his judgement on Aug 23, 2019, former chief justice of Pakistan Asif Saeed Khosa had also held that the video clip concerning Arshad Malik would benefit Nawaz Sharif only if properly produced before the IHC in a pending appeal against his conviction.
While deciding a set of identical petitions in the video scandal case, all seeking an inquiry committee or a judicial commission, a three-judge Supreme Court bench had held that the video clip would become evidence only if its genuineness was established before the high court in accordance with the law.
However, in the judgement, Justice Khosa had also referred to judge Malik’s conduct and regretted that his July 7, 2019 press release and July 11 affidavit were damning indictments since the admitted conduct emerging from these two documents stank and the stench of such stinking conduct had the tendency to give a bad name to the entire judiciary as an institution.
The judge had unabashedly admitted about his shady past in the documents and that he had skeletons in his cupboard for which he was vulnerable to blackmail, Justice Khosa had written, adding that judge Malik had been holding private meetings with sympathisers of the accused being tried by him; he was even threatened and inducements were offered to him during the trial, but he never reported the incidents to any superior authority nor considered recusing himself from the trial.
And after convicting Nawaz Sharif, the judge even met the convict at the latter’s residence, met his son in a foreign country and finally tried to help the convict in his appeal filed against his own judgement by dictating some grounds by pointing out some stated weaknesses in the case, Justice Khosa had written.
“Such admitted conduct of the judge was shocking, to say the least, besides being abhorrent and offensive to the image of a judge in the society,” lamented the verdict, adding that his sordid and disgusting conduct had made thousands of honest, upright, fair and proper judges hang their heads in shame.
Published in Dawn, July 4th, 2020