Saqib Nisar’s alleged audio leak: Why should court take action when parties not pursuing it, asks IHC CJ

ISLAMABAD: The Chief Justice of Islamabad High Court (IHC), Athar Minallah, on Wednesday remarked that why the court should investigate a case when the concerned appellants didn't bring any audio before the bench.

He was hearing a petition of Salahud Din Ahmed, president Sindh High Court Bar Association (SHCBA), and Syed Haider Imam Rizvi, a member of the Judicial Commission (Sindh), seeking constitution of an inquiry commission to probe into the alleged video of former Chief Justice of Pakistan (CJP) Saqib Nisar here on Wednesday.

The court had summoned the AGP for assistance regarding maintainability of the case. Justice Minallah remarked a commission is formed when there is a ground for it. He asked the AGP who the court should issue orders to regarding an inquiry.

Arguing before the court, the Attorney General of Pakistan Khalid Javed said the petition has been filed under Article 199-C of the Constitution. He said why some people were coming to courts to become proxy for only a certain ex-prime minister and added an impression should not be given that the petitioner was contesting someone else's case, adding that sometimes people did not know they were being used. "Why are people choosing only one prime minister and coming to court as their proxy? Thousands of people were sacked. No video in their respect came. It is a proxy war. Today everyone is saying he has two videos and he has four videos. This is the season of harassing and pressurising judges."

"Sometimes an audio, sometimes some concocted affidavit is released," the attorney general said, referring to an affidavit by former Gilgit-Baltistan chief justice Rana Shamim in which he accused ex-CJP Nisar of colluding to deny bails to Nawaz and Maryam before general elections 2018. If a facility is given to one PM, then why it was not given to Bhutto."

The AGP told the court there was one other Prime Minister who was executed on the orders of the court. "Former prime minister Benazir Bhutto's government was not restored but that of another one was. Briefcases full [of cash] were also given in the past."

If the petitioners wanted to conduct inquiries into the past events, they should amend their petition, Khan argued. "Why should we go only till 2017? Let's go to [the tenure of] Zulfikar Ali Bhutto," he said. AGP Javed argued it should be found out why CJP Justice Sajjad Ali Shah was removed from his post. "Who were the suitcases full of money going to? Let us do accountability of all those who are alive," he argued.

Criticising the conduct of bar associations, the AGP recalled that lawyers thrashed a district court judge in Mandi Bahauddin while elsewhere, they raised slogans against the chief justice on the court premises. At this, the CJ IHC remarked bars have waged great struggle for the independence of judiciary. Salahud Din Ahmed, president SHCBA, said the AGP was holding bar associations responsible for every case. See the statements given by PM Imran Khan against the judiciary and judges. "It is now being said to either do accountability of the last 70 years or not at all to divert attention." The petitioner argued that the judiciary was being made controversial through different tactics and the court could stop this practice by probing the allegations against judges. At this, the attorney general countered that all matters of the past could be sent to the parliament. "One appeal against conviction in the Avenfield Reference is being heard in this court. That one appeal has perplexed the entire judiciary," Khalid Javed added.

While acknowledging that those whose cases would be affected by the alleged audiotape had not approached the court, Ahmed said his stance was that courts were being made controversial. The judiciary could stop that from happening by ordering an inquiry, he added. The IHC chief justice observed that any audio or video could be constructed in today's age of advanced technology. "Anybody can make an audio and ask for an investigation. The court remarked if we declare the petition seeking an investigation into audio maintainable, then what will be the impact on the pending appeals.

At that, AG Khalid Javed said: "I am saying this too that a proxy war is being fought. All the things lead to one appeal." He said he was willing to file an amended petition himself, seeking accountability of the past incidents. The SHCBA president countered that if the attorney general wanted, he could get accountability of the past incidents done through the government, asking why there was a need to connect this petition to those incidents. Salahud Din, advocate, said the affidavit case was pending hearing in this court.

Justice Minallah noted, however, that the matter of the affidavit was different because the person concerned — Rana Shamim — had himself approached the court. "You're unsure yourself about the [authenticity of] the audiotape you're mentioning. A commission can be formed when there are grounds. The people who have cases [which could be affected by it] have not brought the audiotape to the court. Why should we [take action]? Is there anyone to take ownership of the audiotape?" he questioned.

The attorney general asked Salahuddin Ahmed to amend his petition to include such incidents in the past as well, vowing to take the matter to parliament himself. The court adjourned the hearing till December 24.