ISLAMABAD: The Supreme Court on Friday held the video clip related to accountability court judge Mohammad Arshad Malik could only benefit former prime minister Nawaz Sharif if properly produced before the Islamabad High Court (IHC) in an appeal pending against his conviction.

The video clip, which was aired by Maryam Nawaz at her press conference in Lahore, would only become evidence if its genuineness was established in accordance with the law, said a 25-page verdict authored by Chief Justice Asif Saeed Khosa and announced in the open court on Friday.

Through the judgement, a three-judge Supreme Court bench finally disposed of a set of identical petitions in the video scandal case, all seeking a probe committee or a judicial commission to probe the matter.

The apex court had reserved its ruling on the case on Aug 20.

IHC to decide whether judge’s conduct caused prejudice in case; apex court disposes of video scandal petitions

To substantiate the point, the verdict also cited the 2001 Asif Ali Zardari case in which some audio tapes and their transcripts were produced in an appeal against convictions and sentences in the SGS pre-shipment inspection commission. The purpose of the audio tapes was to establish bias of the Lahore High Court judge who had dismissed the appeal of the convicts. Since the audio tapes and their transcripts had never been duly proved in accordance with the law, the tapes were neither allowed by the apex court to be brought on record of the appeal nor were such material relied upon by the court at the time of rendering its final judgement.

Referring to judge Malik’s conduct, the ruling regretted that his July 7 press release and July 11 affidavit were damning indictments since the admitted conduct emerging from these two documents stinks and the stench of such stinking conduct had the tendency to bring bad name to the entire judiciary as an institution, CJP Khosa bemoaned.

The judge had unabashedly admitted about his shady past in the documents and that he had a skeleton in his cupboard for which he was vulnerable to blackmail. Moreover, the judge 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 any of the incidents to any superior authority or ever considered to recuse from the trial.

The SC verdict regretted the judge even met the convict at latter’s residence in a different city, met his son in a different 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.

“Such admitted conduct of the judge was shocking, to say the least, besides being abhorrent and offensive to the image of a judge in society,” lamented the verdict.

The bench observed that his sordid and disgusting conduct made thousands of honest, upright, fair and proper judges hang their heads in shame.

The judgement also framed five different questions and then went on to answer all of them. The questions were about relevant forum for consideration in Nawaz Sharif case; establishing video as genuine piece of evidence; how to prove the video evidence before a court of law; effect on Nawaz case; and conduct of the accountability court judge.

About effect of the video if established to be evidence, the SC verdict explained that the IHC would have to decide if the conduct of judge Malik, depicted through the video and found to be objectionable, caused any prejudice or not. If the IHC arrived at the conclusion that the process of trial and the evidence recorded were not affected by the conduct of the judge, then the IHC would have the option either to reappraise the evidence itself and decide the appeal on its merits on the basis of the available evidence or to remand to the trial court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded.

The SC verdict said if the IHC, either on its own motion or on an application of Nawaz, felt the necessity of taking the video as additional evidence, then it could record its reasons for feeling such necessity and may then follow the steps mentioned in Section 428 of the criminal procedure code.

On the veracity of the video clip, the SC explained that the advancement of science and technology made it very convenient to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video. Therefore, without a forensic examination, audit or test of an audio tape or video it was becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. The verdict emphasized that the standard of proof required in a criminal case was beyond reasonable doubt, as any realistic doubt about an audio or video tape not being genuine could destroy its credibility and reliability.

Published in Dawn, August 24th, 2019