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July 12, 2020

Arshad Malik failed to prove he acted under duress: inquiry report

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July 12, 2020

LAHORE: An inquiry that resulted in removal from service of an accountability court judge Arshad Malik on charges of misconduct held that the judicial officer was unable to establish that he acted under “duress or intimidation”, caused by sympathisers of Nawaz Sharif.

He had convicted the former prime minister in one of the two NAB references in the federal capital.

The 13-page inquiry report, also available with The News, says, “There appears to have been no evidence that the accused-officer went in fear of death or serious bodily injury, nor was any attempt made to show that the accused-officer could not escape from the persons concerned.”

Justice Sardar Ahmad Naeem of Lahore High Court had held the inquiry, as assigned by the LHC administrative committee.

The inquiry judge had recommended imposition of major penalty on district & sessions judge Arshad Malik, who, during his posting as presiding judge of an Islamabad accountability court, convicted Nawaz Sharif in Al-Azizia reference and handed down seven-year jail term to him. He had acquitted the former premier in Flagship reference.

The LHC administrative committee, in its July 3 meeting, approved the removal of the judge from service in the light of the inquiry report.

“The accused-officer led no evidence in rebuttal that whatever done by him was a result of intimidation or duress,” it holds, adding that the judicial officer took inconsistent pleas as, in his press statement, he claimed to have been blackmailed. But, on the other hand, he claimed that the decision of the references was free from any influence, coercion or threats.

The plea of duress is based on blackmailing on account of objectionable video film of the judge and serious threats extended by Nasir Butt etc., as highlighted by his affidavit and the written defence, but the judge never communicated to the authority for such blackmailing or intimidation, either orally or in black and white, adds the report.

It further says, “The accused has not established through some evidence that he was so terrorised that he acted entirely against his will. It means he admits that he has committed the crime, but prays to be excused from the punishment for the consequences of crime by the reason of duress.

“Also, the evidence seemed to show that the accused-officer had voluntarily joined criminal organisation, knowing of its business and one who does this has no cause for complaint if he is debarred from the defence of duress.

“Had there been a per chance single meeting of the accused officer with any of the persons mentioned above, the position could have been different. But meetings/ visits of the accused at different places and at different times that, too, during the pendency of the above references and after decision of the cases, do not indicate that those meetings were result of intimidations, coercion or duress, rather reflect upon his willingness,” the report added.

The inquiry report says that the record established that the acquaintance of the judge and his frequent meetings with individuals including Mehar Nasir, Nasir Janjua and Nasir Butt (the alleged sympathisers of Nawaz Sharif) were always with certain demands concerning the accountability references. The record proved that the judge was always accessible to them.

This is also a fact that the judge, even after the decision on the references, visited Jati Umra and met Nawaz Sharif as well as his son Hussain Nawaz when the judge had gone to perform Umrah. As per the judge's written defence, Nasir Butt met him for preparation of grounds of an appeal against the sentence in Al-Azizia reference.

The accused reviewed the grounds of appeal to be filed against the judgment, rendered by himself.

“The accused-officer had gone with his family to perform Umrah, but once again, Nasir Butt, established contact with the accused-officer and he met Hussain Nawaz in Madina, which reflected that it was not a meeting by chance or by the way, but was a pre-planned meeting,” says the report.

It notes that the judge, in his written defence, said he was offered Rs500 million by Hussain Nawaz for tendering resignation. The accused-officer also admitted that he had acquaintance with Mian Muhammad Tariq, maker of the fabricated video, during his posting in Multan from 2000 to 2003.

“The above acts of the accused were contrary to clauses 7, 30 and 31 of the Revised Code of Conduct,” the inquiry judge held.

He further says, “The accused-officer has taken inconsistent pleas, for example, in his press release on the one hand, he claimed to have been blackmailed, but on the other, it was mentioned in the last paragraph that the decision of those references was free from any influence, coercion or threats.”

The commission of act was not denied by the accused-officer himself rather claimed to have acted under duress and he nowhere claimed or asserted that he had no intention to commit such act or that any of his dependent apprehended serious violence or serious bodily harm.

The inquiry judge rules, “I am satisfied that the defence duress has not been established and in circumstances, the charge of misconduct is proved.”

However, the Lahore High Court (LHC), meanwhile, made it clear that no inquiry report on the issue was released to the press.

The Pakistan Muslim League-Nawaz (PML-N) had accused judge Malik of convicting Nawaz in Al-Azizia reference under duress. On July 6, 2019, PML-N Vice President Maryam Nawaz had shown some video clips of judge Malik at a press conference. She had claimed that in the video the judge admitted before Nasir Butt that he convicted Nawaz unjustly as there was immense pressure on him.