Another day, another bombshell revelation implicating the judiciary.
For the umpteenth time in the last three years, senior members of the judiciary find themselves on the stand — in the court of public opinion at least.
This time, the evidence is in the form of an audio clip, in which former chief justice of Pakistan Mian Saqib Nisar can purportedly be heard saying that PML-N leaders Nawaz Sharif and his daughter Maryam Nawaz were being convicted and jailed on the instructions of "institutions" to pave the way for Imran Khan to come into power.
Nisar was quick to term the clip "fabricated". He has not, however, approached the courts for redressal.
Meanwhile, Fact Focus, the website that broke the story, claims it obtained the audio around two months ago and had it examined by "a leading American firm specialising in multimedia forensics" — Garret Discovery. The firm in its analysis certified the integrity of the audio file and stated that “this audio has not been edited in any way,” according to the report.
To admit or not to admit?
While the clip's authenticity is being scrutinised by TV anchors, journalists and Twitterati with newly discovered expertise in audio forensics, the one question on everyone's mind is whether it would have any legal implications, if any, on the cases against Maryam and Nawaz.
Taimur Malik, an international lawyer, thinks it won't. Not until the relevant court establishes the clip's legality and veracity. This, he says, could be done by obtaining the services of a local forensics agency or a foreign firm, if approved by the court, and by establishing the audio clip’s evidentiary value.
According to Malik, Nawaz or Maryam could seek to present the audio clip as evidence to challenge their convictions, but they would generally have to prove how the clip was recorded and by whom, following which the court could summon the person who recorded and/or provided the clip and also allow their cross-examination to determine the clip's credibility.
At this point, the other party — former CJP Nisar — could also negate the clip and may even file a defamation suit against the person who claims to have recorded the clip.
Article 164 of the Qanun-e-Shahadat Order, 1984, (Law of evidence) gives the discretion to a court to allow any evidence becoming available through an audio tape or video to be produced.
The article provides for the "production of evidence that has become available because of modern devices, etc.". It was amended in June 2017 through legislation in the National Assembly and now provides for the admissibility of evidence collected through audio and video recordings.
So what if it's real?
If an audio clip's genuineness is established after meeting all the conditions laid out by the courts in previous judgements and it is significant enough to generate some doubt in the case, it could influence the judges' opinion.
However, to legally use such an audio clip to prove an admission of guilt would require a "very high threshold", Malik said. He noted that there were no past precedents of audio or video clips resulting in quashment of legal convictions of such nature.
Meanwhile, Sindh High Court Bar Association (SHCBA) President Barrister Salahuddin Ahmed said the alleged audio clip of Nisar could have "huge consequences" if it was determined to be genuine and authentic.
"If the CJP is calling up trial courts and stating that agencies decide cases, that is sufficient ground for mistrial," he remarked.
But he said the Supreme Court judgement authored by then-chief justice Asif Saeed Khosa in the video leak scandal case involving former accountability court judge Arshad Malik had set stringent conditions for an audio or video clip to be admissible as evidence, some of which he said were "ridiculous".
Criteria for admission
The Supreme Court in its judgement in the Arshad Malik video scandal laid out 21 requirements that are insisted upon in order to prove an audio tape or video before a court of law. The most prominent of these conditions are:
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
The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video 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
Safe custody of the audio tape or video after its preparation till production before the court must be proved
The source of an audio tape or video becoming available has to be disclosed
A matter of independence
Barrister Ahmed said the clip would be a test for the judiciary and should be seen in the bigger context; similar allegations — of interference in judicial matters — have been levelled by or in the cases of judge Arshad Malik, former Islamabad High Court judge Justice Shaukat Aziz Siddiqui, Supreme Court's Justice Qazi Faez Isa and more recently, ex-chief judge of Gilgit-Baltistan Rana Mohammad Shamim.
"These 4-5 allegations have created the perception that the judiciary has not been acting independently. All those questions are floating around and with the same kind of allegations; it is no longer enough to say we (judges) don't take dictation from anyone," he opined.
He said an independent inquiry should be conducted to investigate all the above allegations in order to retain public trust.
Ahmed recalled that in the Arshad Malik case, disciplinary proceedings were initiated against the judge for allegedly allowing himself to be influenced in the Al-Azizia Steel Mills corruption reference against Nawaz, and he was subsequently removed from his position.
But "the substance of the allegations against him (Malik) was never investigated," the lawyer said.
Regarding the alleged Nisar audio clip, Ahmed said its legal value as of now was "up in the air", adding that its fate would be determined if and when it landed before the court.
But even if the clip cannot be proven legally, "the judiciary suffers a huge blow of credibility in the public eye" through such allegations, Barrister Ahmed commented.
Agreeing with the above view, lawyer Jibran Nisar too said the clip would have no legal effect unless all the conditions set by the apex court were fulfilled. While the release of the clip was "well-timed and coordinated" and could help gain political mileage for the PML-N, using it to achieve success in court would be a tall order, he remarked.