ISLAMABAD: Former prime minister Nawaz Sharif on Monday filed a review petition against the Supreme Court verdict in the judge’s video scandal case, pleading that it was per incuriam as it was passed without jurisdiction.

In the review petition, moved through his counsel Khawaja Haris Ahmed, the former premier asked the apex court to recall its Aug 23 order in which it held that the video clip concerning accountability court judge Mohammad Arshad Malik could benefit the petitioner if its genuineness was established and was properly produced before the Islamabad High Court (IHC) in a pending appeal against his conviction.

Interestingly, the National Accountability Bureau (NAB) and the defence counsel seemed to be on the same page in a related case before the IHC with regard to the scrutiny of the judge’s video in which he confessed to have convicted the ex-PM under duress.

The video that had been screened during a press conference by Maryam Nawaz in Lahore and its transcript had never been duly proved in accordance with the law.

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When the IHC asked NAB’s additional prosecutor general Jahanzeb Khan Bharwana about the former premier’s application asking for determining the authenticity of the secretly recorded video in his appeal against his conviction in the Al-Azizia reference, the NAB counsel admitted that the video had not been made part of the court record so far and said the matter needed to be inquired.

The defence counsel, too, explained to the court that “both prosecution and defence want this court to decide the matter since it was in the interest of both sides”. He added that he wanted this in the interest of defence while NAB wanted the truth for the prosecution’s point of view. Mr Bharwana endorsed the argument of the defence counsel but argued that since the same judge Arshad Malik had acquitted Nawaz in the Flagship Investment reference, therefore, the prosecution’s interest was to see if the judge had acquitted the accused with free mind or otherwise.

In his petition before the apex court, the former premier contended that the audio or video recording was admissible under Article 164 of the Qanun-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, the petition said, such observations reflected 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 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.

It questioned possible motives for retaining judge Malik in Islamabad for around six weeks even after his release /removal from duties as accountability court judge. It said the IHC registrar in the July 11 letter had clearly mentioned that the judge was being relieved from his duties so that he may be repatriated to his parent department i.e. the Lahore High Court.

The petition contended if it could be assumed that judge Malik was being retained in Islamabad only to make him submit an application for the registration of an FIR as a counterblast to off-set the impact of the video and audio recording played at the press briefing held on July 6 in Lahore.

It also asked if the judge after being relieved from duties could lodge any FIR without seeking permission or approval of the chief justice of the LHC, which was his parent department.

The petition highlighted that as an appeal against Nawaz’s conviction under NAB Ordinance 1999 had been pending before the IHC, the SC had no jurisdiction under any provision of the ordinance or even otherwise to pre-empt the decision with the respect to any manner that fell within the jurisdiction of the concerned high court in its appellate jurisdiction. However, the petition contended, the apex court passed the order on the issues that were pertinent to the appeals pending before the IHC.

Published in Dawn, October 8th, 2019