Judge video scandal: Video genuineness, recorder’s evidence must to benefit Nawaz: SC

ISLAMABAD: The Supreme Court on Friday ruled that the video involving former Accountability Court Judge Arshad Malik cannot be of any legal benefit to Nawaz Sharif unless it is properly produced before the Islamabad High Court (IHC) in the pending appeal, its genuineness is established and then the same is proved in accordance with the law for it to be treated as evidence in the case.

The court scolded Judge Arshad Malik for his conduct, ruling that his sordid and disgusting conduct has made thousands of honest, upright, fair and proper judges in the country hang their heads in shame.

A three-member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Sheikh Azmat Saeed and Justice Umar Ata Bandyal announced judgment in the identical petitions seeking an inquiry into the controversial video involving Judge Arshad Malik.

The 25-page order authored by Chief Justice Asif Saeed Khosa held that after having been convicted and sentenced by the trial court after a full-dressed trial, an appeal filed by Nawaz Sharif against his conviction and sentence is presently pending before the IHC, and there cannot be two opinions about the legal position that it is that court alone which can at present maintain, alter or set aside such conviction and sentence on the basis of the evidence brought on record.

The court while reprimanding Judge Arshad Malik for his conduct observed that 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.

“He had unabashedly admitted in the press release and the affidavit that he had a shady past and had skeletons in his cupboard for which he was vulnerable to blackmail, during the trial being conducted by him, he had been holding private meetings with sympathisers of the accused person being tried by him, he was threatened and inducements were offered to him during the trial, but he had not reported the same to any superior authority,” the court ruled.

The court further noted that the judge had never considered recusing from the trial, after convicting the accused person in the trial, he had met the convict at his residence in a different city, he had even met a son of the convict in a different country and finally he had tried to help the convict in his appeal filed against his own judgment by dictating some grounds of appeal and pointing out some stated weaknesses in the case against the convict convicted by him.

“Such admitted conduct of the judge was shocking, to say the least, besides being abhorrent and offensive to the image of a judge in the society,” the court ruled, adding that his sordid and disgusting conduct has made thousands of honest, upright, fair and proper judges in the country hang their heads in shame.

The court noted that the Attorney General has assured the court that the said judge shall be repatriated to the Lahore High Court immediately and “we expect that after his repatriation appropriate departmental disciplinary proceedings shall be initiated against him by the LHC forthwith”.

The court held that five issues needed to be attended in the instant matters which includes:

1- Which is the court or forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Muhammad Nawaz Sharif?

2- How is the relevant video to be established as a genuine piece of evidence?

3- How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law?

4- What is the effect of the relevant video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of Mian Muhammad Nawaz Sharif?

5- The conduct of the judge namely Muhammad Arshad Malik in the episode.

Similarly, referring to the formation of commission, as prayed by one of the petitioners, the court observed that any commission constituted by the government or by this court, any inquiry or investigation conducted by the police or by any other agency and any probe into the matter by any other institution or body can only render an opinion in the matter of the relevant video which opinion is treated by the law as irrelevant and it cannot per se be treated as evidence for the benefit of Nawaz Sharif in his appeal pending before the IHC.

Referring to the second issue as to how is the relevant video to be established as a genuine piece of evidence, the court observed that with the advancement of science and technology it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not.

“In the present case the learned judge had asserted through his press release that the conversation shown to be taking place in the above-mentioned video (the ‘subject video’) had been distorted and twisted,” the court observed. It further noted that the advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. “It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability,” says the order.