Video of no legal use to Nawaz unless verified by IHC; says SC


ISLAMABAD:         The Supreme Court on Friday wrapped up a set of petitions on a video leak scandal involving former accountability court judge Arshad Malik.
“We find that it may not be an appropriate stage for this court to interfere in the matter of the relevant video and its effects” since the video may have relevance to a criminal appeal presently sub judice before the Islamabad High Court, the judges said in the detailed verdict.
The verdict, authored by Chief Justice Asif Saeed Khosa, noted that five main issues needed to be attended by the top court; among them was the possible impact of the video — if proven to be authentic — on the ruling by judge Malik in the Al-Azizia Steel Mills corruption reference that had put away former premier Nawaz Sharif last year.
The top judge, in the judgement, also heavily reprimanded judge Malik for his conduct.
“His admitted conduct emerging from that press release and the affidavit stinks and the stench of such stinking conduct has the tendency to bring bad name to the entire judiciary as an institution,” the judgement read.
“His sordid and disgusting conduct has made the thousands of honest, upright, fair and proper judges in the country hang their heads in shame,” the CJP said.
The five issues addressed by the top court are as follows:
The first issue that the SC said needed to be discussed was regarding the relevant forum or court which could presently attend to the video for any “meaningful consideration” in the Nawaz case.
The chief justice noted that following conviction and sentencing by a trial court, an appeal submitted by Nawaz against the conviction was pending before the IHC.
Therefore, the court said that there “cannot be two opinions” that the IHC could alone at present “maintain, alter or set aside such conviction and sentence on the basis of the evidence brought on the record”.
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. A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of audio tape or video mentioned in the petitions 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.
According to the judgement, an appellate court can take additional evidence under Section 428 of the Code of Criminal Procedure (CrPC).
“It goes without saying that in such a case the relevant video may be taken as (additional) evidence only after complying with the requirements detailed above for proving a video before a court of law,” the judgement read.
According to the judgement, if the high court arrives at the conclusion that the trial process and the evidence recorded during the trial were not affected by the conduct of judge Malik, then the IHC would have the option “either to reappraise the evidence itself or and decide the appeal on its merits after reaching its own conclusions […] or to remand the case to the trial court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded”.