Somewhere between the Pakistan Muslim League-Nawaz’s (PML-N) allegations that the former accountability court judge, Arshad Malik, convicted ex-prime minister Nawaz Sharif under duress, and the judge’s stony denials that he was blackmailed over a compromising video, lies the truth.
Soon after the sacking of the judge, who had presided over the National Accountability Bureau’s (NAB) references – Al-Azizia & Hill Metals Establishment and Flagship – against Sharif in 2018, there were questions regarding its impact on the decision; what will happen next, especially, before the Islamabad High Court (IHC); where the appeals are pending.
Questions about a retrial, what impact will the Lahore High Court (LHC) administrative committee’s decision have on the acquittal of Sharif in one reference and how beneficial the decision was for the PML-N were the talk of the town.
Before moving ahead and examining the issues, it is important to mention here that the end result of the interviews with the legal experts, who were closely monitoring the developments of the cases right from the start, may not necessarily offer the ‘truth’ or a definite way forward in the cases.
Against the backdrop of the PML-N’s and the judge’s accounts of the event, the legal experts were of the view that it was important to keep in mind that there are two versions: one based on video-cum-audio played during the PML-N’s press conference and the other based on the judge’s version of what transpired close to and/or after the decision, saying both were damning for the judge.
In the absence of the LHC order, the experts said that the judge’s dismissal could be on either basis and both could be used to set aside the judgments in both the references. A member of the defence team was of the view that the acceptance of the press conference version would benefit Sharif with far-reaching political consequences but the acceptance of the judge’s version could be used by the prosecution to get the conviction as well as acquittal set aside.
Since it’s an open case of “influence”, people who were privy to the developments, including officials of NAB, while requesting anonymity said that remanding back the cases could also mean that conviction with maximum sentences could be secured in both the cases on the assurance of the powers that be.
The dismissal, they said, was most probably for his confession that he was meeting up with the PML-N leaders and family members in Lahore and Kingdom of Saudi Arabia because a finding on the genuineness of the video-cum-audio recording played by the PML-N has yet to be determined.
In a nutshell, they said, the judge’s written confession of there being a compromising video and that he had met up with Sharif and his son Hussain Nawaz Sharif were alone sufficient for his dismissal and it could be pleaded that a decision rendered by a judge with a tainted character could not be considered to be just and fair.
Officials dealing with the cases on both the sides, however, said that the court may at best remand the case for fresh decision – not a de-novo trial – because apparently there was no issue in recording of the evidence before the trial court.
They added that remanding the case back to the trial court for a decision afresh would open up opportunities for more manoeuvring by the powers that be and a more severe sentence in one case and substitution of a conviction in place of acquittal in the other.
“In politics as played in Pakistan,” one of the experts said, “Anything is possible and it’s the team that has the umpires on its side that is most likely to win.”
In all probability, both sides agreed to the notion that the LHC committee has dismissed the judge from service by not placing reliance on the video played at the presser, but by relying on his self-confessed conduct in terms of the affidavits he gave and the applications he filed with the IHC. “If that is the case, there’s not much to celebrate here as much as Nawaz Sharif’s version of events does not stand vindicated by this dismissal; though the judicial system stands totally discredited,” one of the defence members said.
On the other hand, a NAB official said, the bureau has not only challenged the acquittal in Flagship reference but it had also filed an appeal for the enhancement of the sentence in the Al-Azizia reference as it was not satisfied with the “lesser sentence”. “Today’s decision is a win-win for NAB in both the cases and on either of the grounds on which the judge has been dismissed,” the official said.
The NAB official was confident that the judge was dismissed on the basis of his statement because he can’t be sacked on anything controversial and incomplete in nature, adding that all his decisions excluding the cases where Sharif was involved would remain intact. He gave the example of a judge whose appointment was declared incorrect after he gave hundreds of judgments in his nine-year-long tenure.
On the question of the continuation of trial before the IHC, he said that it could happen if both the parties do not raise any objection on it because “appeal is the continuation of a trial”. For the sake of saving an appellate forum for the convict, he said, the high court can send back the case for a decision afresh. “Conviction in both the cases can happen,” he said, “So just like Justice Qazi Faez Isa’s case, there isn’t much to celebrate for the PML-N.”