SC wraps up Nawaz's plea against videogate verdict

CJP Khosa says IHC has the mandate to announce its decision without being swayed by top court verdict

ISLAMABAD: The Supreme Court on Tuesday wrapped up proceedings of a review petition filed against the August 23 verdict in the video scandal case involving former accountability court judge Arshad Malik.

The former accountability court judge had convicted former prime minister Nawaz Sharif in the Al-Azizia corruption reference.

A three-judge bench headed by Chief Justice of Pakistan Asif Saeed Khosa observed that the apex court’s remarks will not sway proceedings of the video scandal case currently being heard by the Islamabad High Court (IHC).

The chief justice added the earlier judgement stated that the high court was empowered to make its own decision without being influenced by the apex court’s verdict.

The top judge observed that counsel Khawaja Haris' arguments were repetitive as the supreme court had already debated and decided on them in the August 23 verdict.

Justice Khosa further remarked that an impression was being created that the IHC’s powers were restricted. “This happens when the judgment is not thoroughly read.”

“The IHC is mandated to announce its decision on the video scandal case,” added the CJP.



The petition

In his petition, Nawaz contended that the SC order “is without jurisdiction as it impinges upon the jurisdiction of the learned Appellate Court by pre-judging the issues that may or were/are likely to come before it for adjudication in the appellate jurisdiction under National Accountability Ordinance (NAO) 1999 in due course.”

The petition objected to the SC’s decision to pass a ruling without providing Nawaz with an opportunity of a hearing, stating that it is violative of the constitutional guarantee that all citizens will be treated in accordance with the law.

“… passing an order with respect to a matter that specifically relates to the rights or interests of a litigant in pending litigation without providing him an opportunity of a hearing is tantamount to depriving him of his right to the protection of the law,” reads the petition.

Among various contentions, another point raised in the petition was that certain directions in the SC order “constitute micromanaging the judicial functions of the Appellate Court”.

[Read the judgment here]

The SC verdict

In its August order, the SC noted that the relevant video could not be of any legal benefit to Nawaz unless it was properly produced before the IHC in the pending appeal, its genuineness was established and then the same was proved in accordance with the law for it to be treated as evidence in the case.

“There cannot be two opinions about the legal position that it is that court alone which can at present maintain, alter or set aside such conviction and sentence on the basis of the evidence brought on the record,” stated the order.

The judgment read that an appellate court could take additional evidence under Section 428 of the CrPC. “Under this section, an appellate court can take additional evidence on its own or upon an application of a party to the appeal, i.e. the appellant, the state or the complainant but in both such cases the appellate court has to record its reasons as to why it thinks that taking of additional evidence is necessary.”

It also stated the necessity of taking additional evidence at the appellate stage should be felt by the appellate court itself and the same was not to depend upon what a party to the appeal thought of such necessity.

“After feeling the necessity of taking additional evidence and after recording reasons for such necessity, the appellate court may either take such evidence itself or direct it to be taken by a magistrate or, when the appellate court is a high court, by a court of session or a magistrate.

“Where the additional evidence is taken by the court of session or the magistrate, it or he shall certify such evidence to the appellate court and the appellate court shall then proceed to decide the appeal on the basis of the pre-existing evidence as well as the additional evidence lawfully becoming a part of the record,” read the order.

“It goes without saying that in such a case the relevant video may be taken as (additional) evidence only after complying with the requirements for proving a video before a court of law.”



Videogate controversy

In a press conference in July, Pakistan Muslim League Nawaz (PML-N) leader Maryam Nawaz had shared a video containing an alleged confession by the judge that he was ‘pressurised’ and ‘blackmailed’ to give a decision against the former premier.

Following the explosive conference, several petitions were filed in the top court requesting the court to form a probe committee or a judicial commission to investigate the matter. It is pertinent to note that Malik denied the allegations in a letter to the chief justice of the Islamabad High Court.