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July 4, 2020

Legal experts say IHC may set aside Al-Azizia verdict, or refer case for re-trial

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July 4, 2020

ISLAMABAD: Can the removal of former accountability court judge Arshad Malik by a seven-member administrative committee of the Lahore High Court (LHC) lead to acquittal of former prime minister Nawaz Sharif and others in Al-Azizia reference?

This is a crucial question arising after the administrative committee, headed by LHC Chief Justice Muhammad Qasim Khan, approved removal of the judge on the basis of an inquiry commission report.

On Dec 24, 2018, Accountability Judge Arshad Malik had sentenced Nawaz Sharif to seven-year rigorous imprisonment after finding him guilty in Al-Azizia reference, one of the three graft cases, filed by the National Accountability Bureau (NAB) in line with the apex court order.

The Supreme Court, on July 28, 2017, disqualified Nawaz in Panama Papers case and ordered NAB to file separate cases, which were called Avenfield, Al-Azizia and Flagship references.

Arshad Malik had acquitted Nawaz Sharif in Flagship reference, filed against him.

Last year in August, a seven-member administrative committee, headed by the then LHC chief justice Sardar Muhammad Shamim Khan, had approved an inquiry against district and sessions judge Arshad Malik.

The committee had assigned Justice Sardar Ahmed Naeem, an LHC judge, the task of an inquiry into the alleged video scandal of Arshad Malik.

On Friday, Justice Sardar Ahmad Naeem submitted his report before the administrative committee, which approved removal of Arshad Malik.

An appeal of Nawaz Sharif against his conviction in Al-Azizia reference is pending with the Islamabad High Court (IHC). Also, an appeal of the National Accountability Bureau is also pending before the IHC against acquittal of Nawaz in Flagship reference.

As the LHC committee approved removal of judge Arshad Malik, question arises as to whether the decision can lead to acquittal of Nawaz Sharif in the Al-Azizia reference.

Legal circles says the IHC may consider two options for deciding the appeals, filed by Nawaz against his conviction in Al Aziziz and by NAB against his acquittal in Flagship reference.

Supreme Court senior lawyer Muhammad Ikram Chaudhry said the conduct and status of former judge Arshad Malik had become controversial after leakage of the video. “With the LHC approving his removal, the trial court decisions he had rendered in both Al-Azizia and Flagship references, have somehow become eclipsed.

“Keeping in view the principles of law and criminal justice system and its jurisprudence, it seems that both the judgments, delivered by Arshad Malik probably be set aside or be remanded for decision afresh by a NAB court on the basis of available evidence on record, its reassessment and re-examination under the law,” the lawyer said.

Ikram Chaudhry, who was also one of the petitioners moving the Supreme Court for an inquiry into the alleged video scandal of judge Arshad Malik and constitution of a commission, said the IHC might have its own view in the given circumstances to decide the cases arising from both judgments deemed justifiable and proper under the law.

Similarly, Jehangir Jadoon, another senior lawyer of the Supreme Court, said that now it had become a case of complete acquittal of Nawaz Sharif in Al-Azizia reference as the judge, who had convicted him, had been removed by the LHC over misconduct.

Jadoon said the IHC might consider two options: either to set aside the judgment in Al-Azizia reference while deciding the appeal of Nawaz Sharif, or remand it to trail court for de-novo trial.

At the same time, he said the appeal, filed by NAB against acquittal of Nawaz in Flagship reference, might also be decided by the IHC, directing the trial court for de-novo trial.

It may be recalled that last year, on Aug 23, a three-member SC bench, headed by former chief justice Asif Saeed Khan, had ruled that the video involving judge Arshad Malik, could not be of any legal benefit to Nawaz Sharif unless it was properly produced before the IHC in the pending appeal, its genuineness was established and the same was proved in accordance with the law for it to be treated as evidence in the case.