Instant video impact on appeal yet to appear

ISLAMABAD: There are several similarities and dissimilarities between the audio tapes, leaked 18 years back, and the video released a few days ago. One, both recordings involved judges and politicians. Two, both were leaked by affected parties in one way or the other, and not by the judges. Three, they pertained to high-profile opposition politicians, facing accountability, belonging to different parties. Four, in both cases judges were allegedly subjected to pressure. Five, they pertained to the cases being heard or decided by accountability courts. Six, previously the high court justice had to go home while now the subordinate judge has been removed from his position.

A stark dissimilarity is that in the instant case, Judge Arshad Malik largely admitted the contents of the video in his own manner, and in the other incident, Justice Malik Qayyum had not talked about it at the time of the release of the recorded telephonic conversations. Another difference between the two occurrences is that the first recording was leaked by British newspaper, Sunday Times, while the present video was partially released by the Pakistan Muslim League-Nawaz (PML-N). The earlier audio was recorded by someone not named anywhere, but the videos were filmed by the affected political party. In the past case, choice verdict was secured while in the second trial nothing such was managed.

The previous audios had not impacted the overthrowing of the conviction judgement by a superior court as bias became the principal reason in its reversal. What kind of influence and bearing the fresh video will have on the pending appeal is yet to come up. Legal experts say the superior courts feel no hesitation in sending the cases back to the subordinate courts for fresh trial after setting aside the acquittal or convicting judgements if they find bias of the judges concerned or suspect mistrial for any reasons or use of money.

They have also been penalising the judicial officers declared guilty of serious offences and misconduct during trials. For example, on April 25, 2018, the Islamabad High Court (IHC) overturned the acquittal of Axact fake producing factory chief executive officer Shoaib Sheikh and other officials of the company by additional district and sessions judge (ADSJ) Pervezul Qadir Memon by accepting bribe from him. The two-member IHC bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb had ordered retrial to decide thematter after hearing all the arguments afresh. Memon had exonerated Shaikh and others on October 31, 2016. The judge was sacked on Feb 15, 2018, due to his admission of receiving Rs5 million bribe for releasing the accused.

The matter of leaked video of now removed Accountability Judge Arshad Malik has landed in the IHC, which will decide whether or not to throw out his two judgements, convicting former Prime Minister Nawaz Sharif in one of them and acquitting him in the other. It will be up to the IHC to decide at which stage the trial, if ordered, should be taken up by the accountability court.

However, contrary to the widely held view, the Supreme Court had, in 2001, ordered fresh trial of Benazir Bhutto and Asif Ali Zardari in a reference, after setting aside the Lahore High Court (LHC) conviction judgement on the basis of circumstantial and documentary evidence and not due to the leaked audio tapes containing telephonic conversations between a judge and top functionaries of the then government.

“There is no need to advert to the audio-tapes and their transcripts as there is sufficient material on record, which substantiates the allegation of bias. We are convinced that the trial in this case was not fair and on account of bias of the Ehtesab bench [of the LHC], the trial of appellants [Benazir Bhutto and Zardari] stand vitiated, a 7-judge bench of the apex court headed by Justice Muhammad Bashir Jehangiri had ruled in April 2001. The Ehtesab bench that had convicted the couple on April 15, 1999, had consisted of Justice Malik Qayyum and Justice Najamul Hassan Kazmi.

The circumstantial and documentary evidence that judges had relied in reaching the conclusion about bias comprised (1) issuance of red passport to Ehtesab bench head Justice Qayyum, who was not, otherwise, entitled, on the direction of Ehtesab Bureau Chairman Senator Saifur Rehman; (2) the transfer of the reference from principal Seat of the LHC at Lahore to its Rawalpindi bench; (3) the order of the then LHC Chief Justice [Justice Rashid Aziz Khan], to send the same LHC judge to Rawalpindi who was hearing the case at Lahore; (4) the fact that Benazir Bhutto was not even examined during trial by the Ehtesab bench; (5) the appointment of a commission comprising the LHC Registrar to visit Switzerland and ascertain the genuineness and authenticity of certain documents; and (6) the manner in which the commission conducted itself.

The Supreme Court bench that had remanded the case of Benazir Bhutto and Zardari to the trial court had stated: No doubt, the superior court judges are blessed with a judicial conscience but question nonetheless is whether a particular judge of the subordinate or the superior judiciary against whom the allegation of bias is alleged is possessed of judicial conscience. This test is indeed very difficult but certainly not impossible. The circumstances of a particular case wherein bias of a judge is alleged would themselves speak volumes for the same. In other words, the principle is well settled that a superior court judge is a keeper of his own conscience, and it is for him to decide to hear or not to hear a matter before him. However, in the present case we are not inclined to adhere to this settled principle because bias is floating on the surface of the record.

The verdict said it appears from the record that Justice Qayyum, being the senior member of the bench, had exerted his influence on the second member, Justice Kazmi, who being an unconfirmed judge was sweating for confirmation. The apex court bench took judicial notice of the notifications issued by the government according to which Justice Kazmi was appointed as additional judge for a period of one year, but the tenure was extended for further period of one year with effect from 28th May, 1998 and he was ultimately appointed as a permanent judge on 13th May, 1999.

The judgement said in support of this appeal an attempt was made at the bar that the LHC judges were not applying independent mind and had been pressurised and coaxed by the authorities in power to oust Benazir Bhutto and Zardari from political arena by securing their disqualification to hold public office. On their behalf, certain audio-tapes and their transcripts were attempted to be brought on the record. It was argued that Khalid Anwar, the then law minister, Justice Rashid Aziz Khan, Senator Saifur Rehman and Justice Qayyum were clandestinely in league with each other to secure the conviction of Benazir Bhutto and Zardari at the behest of the then prime minister of Pakistan [Nawaz Sharif].

According to the decision, the other side took a categorical stance that the audio-tapes were fake, and in any event were extraneous for the purpose of determination of the matter in controversy in appeal. The bench finally held that the appeals are accepted, convictions recorded against and the sentences awarded to Benazir Bhutto and Zardari are set aside and the case is remitted to the court of competent jurisdiction for trial afresh in accordance with law.

It said before parting with the judgement, the bench is inclined to dispose of plea of Zardari’s lawyer Abdul Hafeez Pirzada to the effect that he (Zardari) had already served out the substantive sentence of imprisonment and, therefore, he is entitled to be released from jail. “As we have already sent the case to a court of competent jurisdiction, it would be more appropriate if this matter is agitated before that court.” In Feb, 2001, Britain’s Sunday Times published transcripts of 32 audiotapes, revealing that Justice Qayyum convicted Benazir Bhutto and Zardari for political reasons.