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Official Citation: 2019 PLD 366
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2019
Decision Date: 2019-08-23
Parties: Ishtiaq Ahmed Mirza vs Federation of Pakistan, etc
This judicial decision was delivered by the Supreme Court of Pakistan on 2019-08-23. The matter involves proceedings between Ishtiaq Ahmed Mirza and Federation of Pakistan, etc, officially reported as 2019 PLD 366. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2019 Lahore 366
Court Name: Supreme Court of Pakistan Judge(s): Asif Saeed Khan Khosa, Umar Ata Bandial, Sh. Azmat Saeed Title: Ishtiaq Ahmed Mirza vs Federation of Pakistan, etc Case No.: Constitution Petitions No. 10, 11 and 12 of 2019 Date of Judgment:2019-08-23 Reported As:2019 P.S.C 1227, 2019 SCP 306, PLD 2019 Supreme Court 675, 2019 P.S.C. (Crl.)
875 Result: petitions disposed of Judgment Asif Saeed Khan Khosa, CJ.: On 06.07.2019 a media briefing was held by Ms. Maryam Nawaz, Vice President of the Pakistan Muslim League (N) and a daughter of a former Prime Minister of Pakistan namely Mian Muhammad Nawaz Sharif who had been convicted and sentenced by Mr. Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad in connection with a Reference filed by the National Accountability Bureau and whose appeal is presently pending before the Islamabad High Court, Islamabad, and in that media briefing she, while flanked by some stalwarts of her political party , disclosed that the learned Judge mentioned above had contacted his old friend namely Nasir Butt, a worker of the political party of the former Prime Minister , and had asked for a meeting so as to express his remorse on having convicted Mian Muhammad Nawaz Sharif under pressure from "certain individuals". According to that media briefing a meeting then took place between the learned Judge and Nasir Butt at the Judge' s residence and in that meeting a stenographer of the said Nasir Butt was also present. The said meeting was allegedly recorded through a video camera and some parts of the video so made were displayed in the media briefing showing the learned Judge dicta ting grounds of appeal which could be utilized for the benefit of Mian Muhammad Nawaz Sharif in his appeal filed against his conviction and sentence. In the said video the learned Judge was shown to be maintaining that Mian Muhammad Nawaz Sharif was convicted and sentenced by him without there being concrete evidence produced against him. The learned Judge was also shown in that video revealing that "certain individuals" confronted him with an embarrassing video from his past and required him to decide the case against Mian Muhammad Nawaz Sharif and, thus, the learned Judge succumbed to the pressure and convicted and sentenced him. The learned Judge was also shown in that video to be admitting that the said conviction and sentence weighed heavily on his conscience and, therefore, he wanted to help Mian Muhammad Nawaz Sharif in order to rectify the wrong. On the very next day, i.e. 07.07.2 019 the learned Judge namely Muhammad Arshad Malik issued a press release claiming that the conversation shown to be taking place in the
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above mentioned video had been distorted and twisted. In the said press release the learned Judge maintained that he knew Nasir Butt and his brother Afzal Butt for a long time and that during the course of the trial of Mian Muhammad Nawaz Sharif he was offered bribe and was also threatened with dire consequences in case he failed to cooperate and acquit Mian Muhammad Nawaz Sharif. It was further claimed by the learned Judge in that press release that he did not yield to those temptations, pressures or threats and that although he had acquitted Mian Muhammad Nawaz Sharif in one of the cases being tried by him yet he had conv icted and sentenced him in the other case purely on merits and in accord ance with the facts and evidence brought on the record. On 11.07.2019 the learned Judge swore an affidavit containing his detailed assertions in the above mentioned regard which affidavit was presented by him before the Honourable Acting Chief Justice of the Islamabad High Court, Islamabad who had then ordered the said affidavit to be placed on the record of the pending appeal filed by Mian Muhammad Nawaz Sharif against his conviction and sentence. The said affidavit contained some more details of the pressures applied and the temptations and bribe offered to the learned Judge for rendering a judgment acquitting Mian Muhammad Nawaz Sharif. It was also claimed by the learned Judge in the said affidavit that even after rendering the final verdict in the case against Mian Muhammad Nawaz Sharif he was appro ached by the above mentioned Nasir Butt and one Khurram Yousaf who referred to a video of the learned Judge which was followed by a visit to the learned Judge paid by one Mian Tariq and his son who showed him "a secretly recorded manipulated immoral video in a compromising position." According to the learned Judge the purpose of showing that video to him was to blackmail and coerce him through one Nasir Janjua to record an audio message of the learned Judge for the satisfaction of Mian Muhammad Nawaz Sharif. The learned Judge had revealed in the said affidavit that thereafter while using the said video as a threat he was made to visit Jati Umrah where he met Mian Muhammad Nawaz Sharif who was on bail at the relevant time and in that meeting when the learned Judge tried to justify his verdict Mian Muhammad Nawaz Sharif was displeased. It was maintained by the learned Judge in the affidavit that in order to remove displeasure of Mian Muhammad Nawaz Sharif the above mentioned Nasir Butt had sought assistance of the learned Judge in the matter of preparing grounds of appeal for the benefit of Mian Muhammad Nawaz Sharif in his appeal against conviction and sentence pending before the Islamabad High Court, Islamabad. It was further revealed in the affidavit that the learned Judge had, during performance of Umrah, met a son of Mian Muhammad Nawaz Sharif namely Hussain Nawaz Sharif in Madina and on that occasion a hefty sum was offered to him as bribe besides requiring the learned Judge to resign from his office on the ground that he had to convict Mian Muhammad Nawaz Sharif under duress when there was no convincing evidence available against him on the record of the case. The learned Judge had statedly resisted all such temptations and threats not only in the said meeting in Madina but even subsequently when Nasir Butt and Khurram Yousaf had repeated the same threats and inducements. 2. After the above mentioned media briefing held by Ms. Maryam Nawaz there was an uproar in the country and different sections of the society started demanding immediate probe into the allegations leveled through the said briefing. The subsequent press release issued by the learned Judge and the affidavit sworn by him had compounded the controversy and had deepened the anxiety felt by people belonging to all walks of life including politicians and the legal fraternity . It was in that backdrop that the present Constitution Petitions had been filed before this Court. The first hearing of these petitions took place on 16.07.2019 when we heard the learned counsel for two of the petitioners and one of the petitioners appearing in person whereafter it was found by us to be appropriate to seek assistance of the learned Attorney-General for Pakistan on diverse issues raised through these petitions and the options available in those regards. The learned Attorney-General for Pakistan was, thus, directed to appear before the Court on 23.07.2019 for the purpose of rendering such assistance. 3. On 23.07.2019 the learned counsel for the petitioner in Constitution Petition No. 10 of 2019 maintained that an Inquiry Commission comprising of an Honourable Judge of this Court should be constituted so as to find out the truth of the allegations and counter allegations leveled through the above mentioned media briefing held by Ms. Maryam Nawaz and the press release and the affidavit sworn by the learned Judge. The learned counsel for the petitioner in Constitution Petition No. 11 of 2019 submitted that contempt proceedings ought to be initiated against all the relevant persons who had tried to malign the judiciary of this country and a probe should also be ordered to
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be conducted by an Honourable Judge of this Court into the allegations leveled from the two sides. The petitioner appearing in person in Constitution Petition No. 12 of 2019 argued that different institutions were interfering in the working of the judiciary of this country and the allegations and the counter allegations leveled in the present matter required constitution of a Judicial Commission comprising of a retired Honourable Judge of this Court in order to inquire into the matter and to dig out the truth so that dignity and grace as well as independence of the judiciary of this country remain unblemished. He further maintained that the Islamabad High Court, Islamabad ought to initiate an inquiry or investigation into the matter so that reality of the matter might be unearthed and the stain or slur on the name of the judiciary could be removed. 4. On the same date, i.e. 23.07.2019 the learned Attorney-General for Pakistan also appeared before the Court and straightaway informed us that on the basis of a complaint lodged by the learned Judge FIR No. 24 of 2019 had already been registered by the Federal Investigation Agency , Cyber Crime Reporti ng Centre, Islamabad in respect of commission of offences under sections 13, 20, 21 and 24 of the Prevention of Electronic Crimes Act, 2016 read with sections 34, 109 and 500, PPC. He further informed the Court that a person named Mian Tariq had already been arrested in connection with investigation of the said case and from the said accused person a land cruiser and a video had been recovered and he had claimed that he had been given the land cruiser and a sum of money through a cheque, which had been dishonoured by the concerned bank, as consideration for sale of the video which had been used to blackmail the learned Judge. The said accused person had further maintained before the investigating agency that he had sold the relevant video to one Mian Saleem Raza who had then handed the same over to Nasir Butt. We were informed that the said Mian Saleem Raza and Nasir Butt had already left the country surreptitiously . The learned Attorney-Gene ral for Pakistan had maintained that different laws in force in the country adequately took care of the allegations and the counter allegations leveled in the matter and, therefore, it might not be appropriate for this Court to probe into the matter itself or to get the matter probed into by somebody else through a Commission. In this respect the learned Attorney-General for Pakistan had referred to section 16-B of the National Accountability Ordinance, 1999 read with section 34 of the Contempt of Court Ordinance, 2003 and had maintained that the National Accountability Bureau as well as the relevant Accountability Court were competent to take notice of the matter under the said laws. He had also referred to sections 177, 186, 189, 192 and 503, PPC to maintain that even the police could take notice of the matter and then to inquire into and investigate the offences mentioned in the said provisions of the Pakistan Penal Code. He had further pointed out that section 20 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and particularly clauses 3, 4, 5, 17, 22 and 23 of the Electronic Media Code of Conduct, 2015 empowered the said Authority (PEMRA) to take cognizance of the issue and to hold appropriate proceedings. According to the learned Attorney-General for Pakistan an option available with this Court was to constitute a Commission to look into the matter and for constitution of such a Commission this Court was empowered under the Supreme Court Rules, 1980. He had further pointed out that under the Pakistan Commissions of Inquiry Act, 2017 even the Government of Pakistan could constitute a Judicial Commission to probe into the matter. He had, however, maintained that as the Federal Investigation Agency had already embarked upon an inquiry/investigation into the whole affair, therefore, this Court might not like to interfere in such a matter at such a premature stage. He had submitted that no commission of inquiry or any other authority could set at naught the judgment of conviction passed against Mian Muhammad Nawaz Sharif and his conviction and sentence could be interfered with only by the Islamabad High Court, Islamabad which was already seized of an appeal filed by him in that regard. He had maintained that the convicted person in that case could apply under section 428, Cr.P.C. for recording of additional evidence in the pending appeal either by the High Court itself or by the trial court upon an order of the High Court in that regard and it was only when authenticity, relevance and admissibility of the relevant video were established before the High Court through such additional evidence then the effects of the facts disclosed through the said video on the conviction of Mian Muhammad Nawaz Sharif could be examined by the High Court. He had, however, hastened to add that the conduct of the learned Judge in the distasteful affair did call for a proper inquiry to be conducted by the Lahore High Court, Lahore which was the parent High Court of the learned Judge and no matter what the consequences of the relevant video were on the conviction of the relevant convicted person the conduct of the
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learned Judge ought to be attended to by the said High Court through appropriate departmental disciplinary proceedings. On the said date of hearing, i.e. 23.07.2019 we had adjourned the hearing of these maters for a period of three weeks so as to be apprised of the result of the inquiry/investigation being conducted into the matter by the Federal Investigation Agency. 5. On 20.08.2019 the learned Attorney-General for Pakistan submitted before us a report prepared by the Federal Investigation Agency and according to the said report the investigation into the matter is already underway, some arrests have been made, some recoveries have been affected and many persons have been quizzed. The said report reveals that there are two videos relevant to the present issues, i.e. the 'objectionable video' through which the learned Judge was blackmailed and which has already been recovered from the custody of the arrested accused person namely Mian Tariq and the 'subject video' which was displayed in the media briefing and which has not so far been recovered. The report shows that a forensic examination of the 'objectionable video' has already been conducted and the same has been found to be authentic and genuine. The learned Attorney-General has informed that Ms. Maryam Nawaz and all those sitting on the stage when the 'subject video' had been displayed during the news briefing have maintained during the investigation that the said video is not with them and they do not even know where the same is at present. They had also expressed ignorance about who had made that video and when and where the same had been prepared. He has, however , undertaken that the relevant laboratory or expert shall be approached by the Federal Investigation Agency for forensic examination and audit of a copy of that video, if technically possible, as copies of the same can be found and made available. 6. After hearing the learned counsel for two of the petitioners, one of the petitioners appearing in person and the learned Attorney-General for Pakistan and after perusal of the report submitted by the Federal Investigation Agency we have found that the following issues need to be attended to by us in these matters: (i) Which is the Court or forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Muhammad Nawaz Sharif? (ii) How is the relevant video to be established as a genuine piece of evidence? (iii) How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law? (iv) What is the effect of the relevant video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of Mian Muhammad Nawaz Sharif? (v) The conduct of the learned Judge namely Mr . Muhammad Arshad Malik in the episode. We now proceed to discuss these issues one by one. 7. Issue No. (i): Which is the Court or forum that can presently attend to the relevant video for any meaningful consideration in the case of Mian Muhammad Nawaz Sharif? After having been convicted and sentenced by the trial court after a full-dressed trial an appeal filed by Mian Muhammad Nawaz Sharif against his conviction and sentence is presently pending before the Islamabad High Court, Islamabad and 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. Any Commission constituted by the Government or by this Court, any inquiry or investigation conducted by the police or by any other agency and any probe into the matter by any other institution or body can only render an opinion in the matter of the relevant video which opinion is treated by the law as irrelevant and it cannot per se be treated as evidence for the benefit of Mian Muhammad Nawaz Sharif in his appeal pending before the Islamabad High Court, Islamabad. The relevant video cannot be of any legal benefit to Mian Muhammad Nawaz Sharif unless it is properly produced before the Islamabad High Court, Islamabad in the pending appeal, its genuineness is established and then the same is proved in accordance with the law for it to be treated as evidence in the case. In the case of Asif Ali Zardari and another v The State (PLD 2001 SC 568) some audio tapes and their transcripts were produced before this Court when this Court was hearing an appeal against convictions and sentences and such material was produced to establish bias of the learned Judges of the High Court who had dismissed the appeal of the convicts. As the said audio tapes and their transcripts had never been duly proved in accordance with
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the law, therefore, the said material was neither allowed by this Court to be brought on the record of the appeal nor was such material relied upon by the Court at the time of rendering its final judgment. 8. Issue No. (ii): How is the relevant video to be established as a genuine piece of evidence? With the advancement of science and technology it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not. In the present case the learned Judge had asserted through his press release that the conversation shown to be taking place in the above mentioned video (the 'subject video') had been distorted and twisted. The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability. 9. Issue No. (iii): How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law? Article 164 of the Qanun-e-Shahadat Order , 1984 provides as follows: 164. Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques: Provided that conviction on the basis of modern devices or techniques may be lawful. Admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court are issues which have been discussed in many a case in this country and abroad and a summary of the case-law on the subject may advantageously be recorded here chronologically . Islamic Republic of Pakistan through Secretary , Ministry of Interior and Kashmir Affairs, Islamabad - Applicant/Referring Authority v Abdul Wali Khan, M.N.A., former President of defunct National Awami Party (PLD 1976 SC 57) "So far as tape records of speeches of some of the N.A.P . leaders are concerne d, they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been played in the Court. The officer concerned has identified the voice of the person speaking. Therefore, we see no reason not to accept these reports. They stand on the same footing as the transcripts of speeches personally recorded by officers attending the meetings at which the speeches complained of were delivered. The learned amicus curiae have also conceded that such tape records are admissible in evidence and that they have been so admitted by the Courts in this Country ." Hakim Ali Bhatti v Qazi Abdul Hakim and others (1986 CLC 1784 ) "The evidence relating to first responden t and his supporter 's speeches consisted of cassette or tape-record and transcripts of tape record speeches prepa red after tape-recording and the stateme nt of P.W. Haji Taj Din present at the meeting who had actually heard what was said by the first respondent and his supporters. The learned counsel for the petitioner has relied on Yousaf Ali Ismail Nagrea v. State of Maharashtra AIR 1968 SC 147 at 149 and N. Shri Rama Reddy v. V.V. Giri AIR 1971 SC 1162, R.V. Maqsud Ali v. R.V. Ashiq Hussain 1965 (2) AER 464 PL. The first respondent raised objection to the admissibility of this type of evidence. In the case of S. Pralap Lenjh v. State of Punjab AIR 1964 SC 72. The Supreme Court of India accepted conversation or dialogue recorded on a tape-recording machine as admissible evidence. In the case of Yousuf Ali Ismail Nagrea v. State of Maharashtra. The facts are that the appellant had walked into a pre-arranged trap. Mahajan and other police officer had hidden themselves in the inner rooms. Sh. Nagrea knew
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that the police officers were recording conversation and was naturally on the guard while talking to the appellants. The evidence of conversation was tendered at the trial of the offence. The conte mporaneous dialogue between them formed part of the res gestae and is relevant and admissible under section 8 of the Evidence Act. The dialogue is proved by Sheikh. The tape-record of the dialogue corroborates his testimony . In the case of N. Shri Rama Reddy v. Shri V.V. Giri AIR 1971 SC 1162. In this case the election petitioner had recorded on tape the conversation that had taken place between a witness Jagal Narain and petitioner . Objection was taken to admissibility of the recorded conversation. It was held by the Supreme Court of India that it was admissible. In the case of R.M. Malkani v. State of Maharashtra AIR 1973 SC 157. It was held by the Supreme Court of India that the tape-recorded conversation was admissible in evidence. In the case of R.V. Maqsud Ali 1965 (2) AER 464. In that case a conversation which took place in Punjab dialect between two persons and which had been recorded on the tape was played before the Jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Appeal regarding the admissibility in evidence of the tape-recorded conversation between the accused. Therefore, the point that specifically arose before the Court of appeal was "Is a tape-recording as such admissible in evidence, as a matter of law?" After referring to the observation in Mills Case 1962 (2) AER 298 the Appellate Court noted that the question regarding the admissibility of a tape-record was not actually decided in that case. The decision of High Court of Judiciary in Hopes Case 1960 Scots Law Times 264 was referred to and it was noted that the evidence of the police officer who listened to the tape-recorded was held to be admissible. The Court laid at p. 469:- "We think that the time has come when this Court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represen t situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now…
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