Judge’s video tape: What three top legal experts say

ISLAMABAD: The Accountability Court’s Judge Arshad Malik’s video-gate has opened a Pandora box regarding the country’s judicial system and many voices are being raised, including top legal minds who believe verdicts against Mian Nawaz Sharif deserve quashment as the judge has confessed that he was under pressure while convicting the PML-N premier.

Besides severe damage to the Accountability Court (AC) reputation, it is, however, up to the judges of the Islamabad High Court whether to quash the judgment against elder Sharif or not, experts believe. They believe there is a past precedent when Supreme Court of Pakistan declared Ehtesab Bench verdict vitiated after it was proved that the judge had bias against the accused.

However, there are two school of thoughts for such kind of precedents one who think the previous judgment should be quashed after it is found that the judgment was given under duress, and the other who believe the case should be decided purely on merit after scrutinising the documents.

According to the experts, the defence council needs to submit the video tapes of Judge Arshad Malik as fresh evidence. If the video tape proves genuine and authentic it will have a great impact on the case against former premier Nawaz Sharif.

The Supreme Court of Pakistan has already given a verdict and quashed the judgment of Ehtesab Bench after it found bias of the judge in the case of Asif Ali Zardari Vs the State of Pakistan.

“There is no need to advert to the audio-tapes and their transcripts as there is sufficient material on record which substantiate 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, highlighted in preceding paragraphs, the trial of the appellants stands vitiated,” says the Supreme Court of Pakistan verdict in Asif Ali Zardari Vs State of Pakistan (PLD 2001 SC 568).

Talking to The News, Justice (retd) Wajihuddin Ahmed said there is already a precedent about such incident and if a judge admits that he has given the verdict under pressure then the judgment can be quashed.

“There are actually two types of opinion on such kind of issue. If a judge admits openly or there are evidence where a judges is confessing that the judgment was given under severe pressure then it can either be quashed or its appeal should be heard purely on the basis of merit after scrutinising the record of the case,” commented Justice Wajih.

“There was same kind of precedent in SC judgment in 2001 when Justice Abdul Qayum Malik’s audio tape was leaked. Later when these audio tapes were found authentic before the Supreme Court, the two judges had to resign from their posts. Apparently, the video tape presented by PML-N leaders in a presser seem to be authentic. However, it should be verified through forensic audit and submitted before the high court as a fresh evidence. It depends on the Islamabad High Court judges that what they decide about this video tape,” commented Justice (retd) Wajih.

“If we take the previous precedent in view (justice Qayum audio tape’s leak) the Supreme Court of Pakistan adopted the second course of action-- quashing the previous judgment. However, it all depends upon the judges who are hearing the appeal,” said Justice (retd) Wajih.

He said the judiciary has to think because serious questions have been raised. The courts have to take their decisions without taking any pressure from outside; otherwise, these kind of incident will keep happening.

Abid Hassan Minto--One of the top legal mind of the country while talking to The News said it has to be verified whether the video presented by PML-N leaders is authentic and genuine. If the video is genuine then it can be presented as a fresh evidence in the case.

“I cannot comment whether this video will have any impact on the merit of the case as it totally depends on the judges that how they take this video. We already have such precedent and then the Supreme Court of Pakistan had quashed the previous judgment. But I cannot comment what the judges of Islamabad High Court will decide this time,” commented Mr Minto.

Justice (retd) Khalil-ur Rehman Khan, while talking to The News said the courts can set aside the previous judgment if the video of accountability court judge proved genuine where the judge himself is confessing that the judgement was given under extreme pressure.

“The defence council should highlight the video of Judge Arshad Malik if it is authentic. If the hearing of appeal against previous judgment is in progress, then the defence council should submit a fresh application and present this video as evidence. The defence and prosecution will argue on the video of the judge and if this video proves to be authentic, the judge of high court can quash the previous judgment following the Supreme Court of Pakistan’s judgment in Asif Ali Zardari Vs the State,” commented Justice Khalil-ur-Rehman Khan.