The Islamabad High Court (IHC) on Friday directed Attorney General of Pakistan (AGP) Khalid Jawed Khan and the Pakistan Bar Council (PBC) to submit names of certified international forensic agencies to conduct a forensic analysis of an alleged audiotape of former chief justice of Pakistan (CJP) Saqib Nisar.
IHC Chief Justice Athar Minallah issued the directions while hearing arguments on the maintainability of a petition seeking the formation of an independent commission to ascertain the authenticity of Nisar's alleged audiotape and probe certain events before and after former prime minister Nawaz Sharif's conviction.
The petition has been jointly filed by Salahuddin Ahmed, president of the Sindh High Court Bar Association (SHCBA), and Syed Haider Imam Rizvi, a member of the Judicial Commission (Sindh).
In the leaked audio clip, an unidentified individual, allegedly Nisar, can be heard speaking of collusion to punish former prime minister Nawaz Sharif and his daughter Maryam Nawaz in order to bring their political rival Imran Khan into power. The former top judge had branded the audio as "fabricated".
Justice Minallah said during the hearing that it wasn't even known if there was an original audiotape and whether it was authentic. "No accountability court is under the administrative control of this high court. On what matter related to this high court are you asking for an inquiry?" he questioned.
The judge observed that all the matters were related to a pending appeal, referring to Maryam Nawaz's appeal against her conviction in the Avenfield reference. Justice Minallah questioned what the effect would be on that pending appeal if the court decided to order an inquiry.
"It seems that those whose appeals are underway do not want to take these matters to the court. [If] this court orders an inquiry, then it will have an effect on all pending cases," the judge remarked.
Justice Minallah observed that an allegation was being levelled that someone else "decided the constitution of the high court's benches" and questioned whether there was even the slightest evidence available for the claim.
"Cases cannot be decided on political grounds. You are the leader of the bar [so] bring even the slightest evidence," the judge said to Ahmed, noting that the inquiry would have to be against the judges in the relevant bench.
The SHCBA president responded that in the leaked audiotape, it was not known who Nisar was allegedly talking to and whether the other person was even a judge or not.
Justice Minallah replied that a prima facie case would have to be made out and asked again for any evidence to be brought.
"If there is no evidence then this is an attempt to erode public confidence in the court. [If you] bring the evidence then this court has no hesitation in making a commission," the chief justice said.
He again asked the petitioners to bring forth any evidence that somebody else decided the formation of IHC benches, questioning whether any judge's decision or conduct had given that impression.
The IHC chief justice also questioned who would bear the cost of any forensic analysis. Ahmed suggested the law ministry could do so, prompting the chief justice to ask: "Why should money of taxpayers be spent on it?"
He called on the SHCBA president to suggest the name of any verified forensic agency to investigate the audio clip but the latter declined to do so, explaining that the AGP had called him a "proxy" in a previous court hearing.
Subsequently, Justice Minallah directed the AGP and PBC to submit names of verified international forensic firms. He also directed that a copy of the audiotape be provided to the petitioners.
The hearing was adjourned till January 28.
Decision reserved on Rana Shamim's petition
Earlier in the day, the IHC reserved its verdict on the admissibility of a request by former Gilgit-Baltistan chief justice Rana Shamim for the formation of an inquiry commission to investigate interference in judicial matters.
Shamim's lawyer Ahmad Hassan Rana argued that allegations regarding former CJP Nisar were made in ex judge's affidavit. In addition, former IHC judge Shaukat Aziz Siddiqui had also delivered a speech before the Rawalpindi bar, he added — referring to the latter's speech in 2018 in which he had made remarks about the involvement of certain officers of the executive organ of the state, specifically the Inter-Services Intelligence, in the affairs of the judiciary to allegedly manipulate the formation of benches of the high court.
Justice Minallah asked the counsel which bench he suspected of being formed by someone else, adding that those named in the affidavit were not a part of the bench that was hearing the case of PML-N supremo Nawaz Sharif and his daughter.
"If any misconduct has happened then those benches must have done it. Do you want an inquiry against those benches and judges?" the IHC chief justice questioned before reserving his verdict on the request.
Commission sought to probe audio leak
Ahmed's petition had requested the IHC to appoint an independent commission comprising members or retired judges of the superior judiciary, legal professionals, journalists and civil society members to undertake "a comprehensive inquiry" to ascertain authenticity or otherwise of the "audio recording purported to be of former CJP Saqib Nisar".
The petitioners had urged the court to empower that commission to also probe the events/allegations hurled at the judiciary prior to and after the conviction of the Sharif family. According to the petition, "series of events that have taken place tend to erode the credibility, reputation and independence of the judiciary in the eyes of the people.".
The petition mentioned that all the events undermined public confidence in the judiciary and damaged its reputation for independence and neutrality in the eyes of the general public which ultimately impinge access to justice. "While various aspects of the aforementioned events are sub-judice before various courts, the underlying question of the truth or falsity of the allegations of outside interference with judicial functions and, in particular, the audio recording of former CJP Saqib Nisar is yet to be considered at any judicial forum," it stated.