Dismissed: SC rejects Hussain’s picture leak plea

Observes nothing wrong with video recording of JIT proceedings

ISLAMABAD: The Supreme Court on Tuesday decided against entertaining a request from Prime Minister’s son Hussian Nawaz for an independent commission to probe the issue of his photograph being leaked on social media.

The three-judge special bench of the apex court also rejected Hussain’s plea against video recording of witnesses by the Joint Investigation Team (JIT) tasked with probing the Sharif family’s offshore wealth.

The bench, headed by Justice Ejaz Afzal Khan, while announcing the order, observed that “audio or video recording cannot be admitted into evidence for the proof of statement(s) till the law is amended”.

However, a member of the Sharif family’s legal team, expressing serious concern over the court order, said: “The bench [is] contradicting itself and committing mistakes again and again only because it has already decided that [the] JIT cannot do wrong.”

Justice Ejaz, who authored the five-page order, says in any case, use of video or audio to facilitate the recording of statement is not prohibited under the law. “Likewise, it is not prohibited when the finished product, to be used in the court to confront the witness, is the statement reduced to writing and not its audio or video recording.”



“Since the statement so transcripted or reduced to writing cannot enlarge its scope or its probative worth it could possibly have on its proof, the concerns voiced by the applicant [Hussain Nawaz] being paranoiac appear to be more of form rather than substance,” says the order.

The court order says in this computer age where almost everything is communicated and even business of every type is transacted online, emphasis on the form of doing a thing as it used to be done in 1898 would amount to putting at naught the dynamics of scientific and technological advancements which have not only liberated man from exhausting labour but also made things easier.

“Law in many countries of the East and the West has been changed and even re-enacted. Addition of the word ‘truly’ in Sub-Section 2 after the word ‘answer’ and insertion of the proviso to Sub-Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India, providing for recording of such statement by audio-video electronic means is an illuminating example on the subject.”

The bench admitted that audio or video recording cannot be admitted into evidence for the proof of such statement till the law is amended “as it has been amended in India and other countries, but its use to facilitate recording of such statement cannot be discouraged on the basis of so pedantic an interpretation as sections 161 and 162 of the CrPC”.



However, the order says that signing of such statement by its maker is prohibited because it tends to bind its maker and impair his freedom to speak the truth in court, adding recording of such statement by audio, video or electronic means could be treated on a par with a statement which has been signed by its maker, inasmuch as it hampers his freedom to testify in the court.

“But in any case [the] use of audio or video devices to facilitate the recording of such statement cannot be said to have been prohibited by any interpretation of the provisions reproduced above when the finished product to be used in the court to confront the witness is the statement reduced to writing and not its audio or video recording.”

Meanwhile, the bench decided not to entertain Hussain’s plea – for the time being – to constitute an independent commission headed by a retired or a sitting judge of the apex court to inquire into the circumstances leading to his photograph being leaked on social media and identify the person(s) involved in the affair.

Hussain had alleged that one or all members of the JIT or some persons working under it or at their behest have leaked his photograph in the interrogation room.

“The other prayer of the applicant cannot be attended to at this stage as the response of the learned Attorney General for Pakistan (AGP) Ashtar Ausaf Ali has not been received so far vis-à-vis the inquiry report as to the leakage of the image,” says the order about the plea for the inquiry regarding the leakage of the picture.



During the hearing on Tuesday, the AGP also wondered that though the JIT has identified the person who leaked the picture, it did not disclose his identity.

To a query of the bench, he stated that he has no objection to making the report public as the JIT did not disclose the name of the person responsible for the leak in its report.

Also, the same special bench allowed time to the AGP to submit a concise statement on the JIT’s allegations against the Intelligence Bureau (IB) for creating hindrance to the ongoing investigation. The matter will be taken up after Eid vacations.

‘Media campaign’

Expressing its concern over the “government-run media campaign” against the judiciary and the JIT, the bench once again warned the government functionaries against going to the media.

“Instead of submitting their concerns in the court, why are government functionaries getting articles and news stories published?” asked Justice Azmat Saeed Sheikh.



He also asked the AGP that if the government functionaries wanted to convey their concerns through news reports, then the court did not need him.

Justice Azmat also said that heavy responsibility rested on the government to show restraint before pointing fingers. “Don’t force our hand,” he added.

“Media circus and media trial should be stopped,” Justice Ijaz-ul-Ahsan told the AGP. The judge lamented that the government itself was providing material to the media who could not be blamed for publishing it.

Justice Ijaz also asked the AGP to tell the “self-appointed government spokespersons” to show restraint while issuing statements. However, Justice Ejaz made it clear that speeches made by politicians and news reports could not change their mind.

“Let them say whatever they want as we are not scared,” he added.