P L D 2019 Supreme Court 675

Present: Asif Saeed Khan Khosa, C.J. Sh. Azmat Saeed and Umar
Ata Bandial, JJ
ISHTIAQ AHMED MIRZA and 2 others---Petitioners
Versus
FEDERATION OF PAKISTAN and others---Respondents
Constitutional Petitions Nos. 10, 11 and 12 of 2019, decided on 23rd
August, 2019.
(Regarding the allegations levelled through a media briefing against
Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad)
(a) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(v)---Qanun-e-Shahadat (10 of 1984), Art. 164---Constitution of
Pakistan, Art. 184(3)---Constitutional petitions regarding the
allegations levelled through a media briefing against a Judge of the
Accountability Court ('the Judge') who had convicted and sentenced a
former Prime Minister ('the accused')---Video recording of Judge
purportedly showing him stating that he was pressurized into
convicting the accused, in absence of any concrete evidence---Whether
such video could be considered during the pending appeal of accused
before the High Court---Held, that the Court alone could maintain, alter
or set aside conviction and sentence of accused on the basis of the
evidence brought on the record---Any Commission constituted by the
Government or by the Supreme 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 could only render an opinion
in the matter of the subject video which opinion was treated by the
law as irrelevant and it could not per se be treated as evidence for the
benefit of the accused in his appeal pending before the High Court---
Subject video could not be of any legal benefit to the accused unless it
was properly produced before the High Court, 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---
Constitutional petitions were disposed of.
Asif Ali Zardari and another v. The State PLD 2001 SC 568 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 164---National Accountability Ordinance (XVIII of 1999), S.9(a)
(v)---Constitution of Pakistan, Art. 184(3)---Constitutional petitions
regarding the allegations levelled through a media briefing against a
Judge of the Accountability Court ('the Judge') who had convicted and
sentenced a former Prime Minister ('the accused')---Video recording of
Judge purportedly showing him stating that he was pressurized into
convicting the accused, in absence of any concrete evidence---Question
as to how such video was to be established as a genuine piece of
evidence---Held, that with the advancement of science and technology
it was 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 was genuine or not
and such examination, audit or test could also reasonably establish if
such audio tape or video had been edited, doctored or tampered with
or not---In the present case, the Judge had asserted through his press
release that the conversation shown to be taking place in the subject
video had been distorted and twisted---Advancement of science and
technology had also 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 was becoming more and more unsafe to rely
upon the same as a piece of evidence in a court of law---Standard of
proof required in a criminal case was beyond reasonable doubt and
any realistic doubt about an audiotape or video not being genuine may
destroy its credibility and reliability---Constitutional petitions were
disposed of.
(c) Qanun-e-Shahadat (10 of 1984) ---
----Art. 164---Punjab Forensic Science Agency Act (XIII of 2007), S.9(3)---
Audio tape or video, proving of---Admissibility in evidence---
Requirements for 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 stated.
Following are the requirements for 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:
(i) No audio tape or video could be relied upon by a court until the
same was proved to be genuine and not tampered with or doctored.
(ii) A forensic report prepared by an analyst of the Provincial
Forensic Science Agency in respect of an audio tape or video was per
se admissible in evidence in view of the provisions of section 9(3) of
the Punjab Forensic Science Agency Act, 2007.
(iii) Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in
the discretion of a court to allow any evidence becoming available
through an audio tape or video to be produced.
(iv) Even where a court allowed an audio tape or video to be
produced in evidence, such audio tape or video had to be proved in
accordance with the law of evidence.
(v) Accuracy of the recording must be proved and satisfactory
evidence, direct or circumstantial, had to be produced so as to rule out
any possibility of tampering with the record.
(vi) An audio tape or video sought to be produced in evidence must
be the actual record of the conversation as and when it was made or of
the event as and when it took place.
(vii) The person recording the conversation or event had to be
produced.
(viii) The person recording the conversation or event must produce
the audio tape or video himself.
(ix) The audio tape or video must be played in the court.
(x) An audio tape or video produced before a court as evidence
ought to be clearly audible or viewable.
(xi) The person recording the conversation or event must identify
the voice of the person speaking or the person seen or the voice or
person seen may be identified by any other person who recognized
such voice or person.
(xii) Any other person present at the time of making of the
conversation or taking place of the event may also testify in support of
the conversation heard in the audio tape or the event shown in the
video.
(xiii) The voices recorded or the persons shown must be properly
identified.
(xiv) The evidence sought to be produced through an audio tape or
video had to be relevant to the controversy and otherwise admissible.
(xv) Safe custody of the audio tape or video after its preparation till
production before the court must be proved.
(xvi) The transcript of the audio tape or video must have been
prepared under independent supervision and control.
(xvii) The person recording an audio tape or video may be a person
whose part of routine duties was recording of an audio tape or video
and he should not be a person who has recorded the audio tape or
video for the purpose of laying a trap to procure evidence.
(xviii) The source of an audio tape or video becoming available had
to be disclosed.
(xix) The date of acquiring the audio tape or video by the person
producing it before the court ought to be disclosed by such person.
(xx) An audio tape or video produced at a late stage of a judicial
proceeding may be looked at with suspicion.
(xxi) A formal application had to be filed before the court by the
person desiring an audio tape or video to be brought on the record of
the case as evidence.
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; Hakim Ali Bhatti v. Qazi Abdul Hakim and
others 1986 CLC 1784; Muhammad Zahir Shah Khan and another v.
Nasiruddin and others 1986 CLC 2463; Mst. Rukhsana Begum v. District
Judge, Karachi (East) and others 1987 MLD 2425; Asfandyar and
another v. Kamran and another 2016 SCMR 2084; Ammar Yasir Ali The
State 2013 PCr.LJ 783; Akhtar Ali Ghowda v. The State 2015 MLD 1661;
Munas Parveen v. Additional Sessions Judge/Ex-Officio Justice of Peace,
Shorkot and others PLD 2015 Lah. 231; Shahid Zafar and others v. The
State 2015 PCr.LJ 628; Sikandar Ali Lashari v. the State and another
2016 YLR 62 and Muhammad Sadiq @ Husnain and others v. The State
and others 2016 PCr.LJ 1390 ref.
(d) Criminal Procedure Code (V of 1898)---
----S. 428---National Accountability Ordinance (XVIII of 1999), S.9(a)(v)--
-Constitution of Pakistan, Art. 184(3)---Appellate Court---Further
evidence---Scope---Constitutional petitions regarding the allegations
levelled through a media briefing against a Judge of the Accountability
Court ('the Judge') who had convicted and sentenced a former Prime
Minister ('the accused')---Video recording of Judge purportedly
showing him stating that he was pressurized into convicting the
accused, in absence of any concrete evidence---Question as to which
court could take such video in evidence---Held, that as the Trial Court
in the case of the accused had already become functus officio and as
his appeal against his conviction and sentence recorded by the Trial
Court was presently pending before the High Court, therefore, the only
Court which could take the relevant video in evidence was the High
Court---High Court as an appellate court could take additional evidence
under S.428, Cr.P.C.---If the High Court, either on its own motion or on
an application submitted by the accused/appellant, felt the necessity of
taking additional evidence in the form of the subject video then it may
record its reasons for feeling such necessity and may then follow the
steps mentioned in S. 428, Cr.P.C.---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---Constitutional
petitions were disposed of.
(e) Criminal Procedure Code (V of 1898)---
----S. 428---Appellate Court---Further evidence---Scope---Under S.428,
Cr.P.C an appellate court could 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 had
to record its reasons why it thought that taking of additional evidence
was necessary---Necessity of taking additional evidence at the
appellate stage must be felt by the appellate court itself and the same
was not dependent 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 was a High Court, by a Court of Session or
a Magistrate---Where the additional evidence was 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.
(f ) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(v)---Constitution of Pakistan, Art. 184(3)---Constitutional
petitions regarding the allegations levelled through a media briefing
against a Judge of the Accountability Court ('the Judge') who had
convicted and sentenced a former Prime Minister ('the accused')---
Video recording of Judge purportedly showing him stating that he was
pressurized into convicting the accused, in absence of any concrete
evidence---Question as to what would be the effect of the subject video,
if established to be a genuine piece of evidence and if duly proved
before the relevant court, upon the conviction of the accused awarded
by the Judge---Held, that if the subject video was taken as additional
evidence by the High Court, where appeal of accused was pending,
either on its own motion or on an application submitted by the
accused or any other party to the case then the High Court shall have
to decide as to whether the conduct of the Judge of the Accountability
Court depicted through the said video, if found to be objectionable,
had caused any prejudice or not---If the High Court came to the
conclusion that the process of trial and the evidence recorded during
the trial were not affected by the conduct of the Judge then the High
Court shall have the option either to reappraise the evidence itself and
decide the appeal on its merits after reaching its own conclusions on
the basis of the evidence available on the record or to remand the case
to the Trial Court for re-deciding the case after hearing of arguments
of the parties on the basis of the evidence already recorded---Choices
available with the High Court in either eventuality would lay within
the jurisdiction and discretion of the High Court and such choices
would be exercised by it on the basis of the facts found and the
conclusions reached by it---Constitutional petitions were disposed of.
(g) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(v)---Constitution of Pakistan, Art. 184(3)---Constitutional
petitions regarding the allegations levelled through a media briefing
against a Judge of the Accountability Court ('the Judge') who had
convicted and sentenced a former Prime Minister ('the accused')---
Video recording of Judge purportedly showing him stating that he was
pressurized into convicting the accused, in absence of any concrete
evidence---Abhorrent conduct of Judge---Offensive to image of
judiciary---Admitted conduct of the Judge that emerged from a press
release and an affidavit submitted by him stank and the stench of such
stinking conduct had the tendency to bring a bad name to the entire
judiciary as an institution---Judge had admitted in the press release
and the affidavit that he had a shady past and had skeletons in his
cupboard for which he was vulnerable to blackmail; that during the
trial of accused, conducted by him, he had been holding private
meetings with sympathizers of the accused; that he was threatened
and inducements were offered to him during the trial but he had not
reported the same to any superior authority and had never considered
recusing from the trial; that after convicting the accused person in the
trial he had met the accused at his residence in a different city; that he
had even met a son of the accused in a different country, and that he
had also tried to help the accused in his appeal filed against the Judge's
own judgment by dictating some grounds of appeal and pointing out
some stated weaknesses in the case against the accused convicted by
him---Such admitted conduct of the Judge was shocking, besides being
abhorrent and offensive to the image of a Judge in the society---Sordid
and disgusting conduct of the Judge had made the thousands of honest,
upright, fair and proper Judges in the country hang their heads in
shame---Attorney-General had assured the Court that the Judge was
going to be repatriated to the relevant High Court, immediately---
Supreme Court observed that it expected that after the Judge's
repatriation appropriate departmental disciplinary proceedings shall
be initiated against him by the High Court, forthwith ---Constitutional
petitions were disposed of.
For the Petitioners:
Ch. Munir Sadiq, Advocate Supreme Court, Syed Ali Imran, Advocate
Supreme Court, Ch. Zubair Ahmed Farooq, Advocate Supreme Court,
Syed Rifaqat Hussain Shah, Advocate-on-Record (in Const. P. No. 10 of
2019).
Muhammad Ikram Ch., Advocate Supreme Court (in Const. P. No. 11
of 2019).
In person (in Const. P. No. 12 of 2019).
For the Respondents:
Anwar Mansoor Khan, Attorney-General for Pakistan, Sajid Ilyas
Bhatti, Additional Attorney-General for Pakistan, Sohail Mehmood,
Deputy Attorney-General for Pakistan (in all cases).
Dates of hearing:16th, 23rd July and 20th August, 2019.
ORDER
ASIF SAEED KHAN KHOSA, C J.---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
dictating 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. 07.07.2019 the learned
Judge namely Muhammad Arshad Malik issued a press release
claiming that the conversation shown to be taking place in the 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 convicted and sentenced him in the other case purely on
merits and in accordance 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 approached 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 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 Reporting 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, P.P.C. 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-General 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, P.P.C. 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 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 matters 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 effected 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 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.
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
concerned, 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 respondent and his supporter's
speeches consisted of cassette or tape-record and transcripts of
tape record speeches prepared after tape-recording and the
statement 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 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 contemporaneous
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 represent
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 there are devices
for picking up, transmitting and recording, conversations. We
can see no difference in principle between a tape-recording and
a photograph. In saying this we must not be taken as saying that
such recordings are admissible whatever the circumstances, but
it does appear to this Court wrong to deny to the law of evidence
advantages to be gained by new techniques and new devices,
provided the accuracy of the recording can be proved and the
voices recorded properly identified; provided also that the
evidence is relevant and otherwise admissible, we are satisfied
that a tape-recording is admissible in evidence. Such evidence
should always be regarded with some caution and assessed in
the light of all the circumstances of each case. There can be no
question of laying down any exhaustive set of rules by which the
admissibility of such evidence should be judged."
In consequence, the Court held that the tape-recorded conversation
was admissible in evidence, subject to the limitation mentioned
in the above extract.
In the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD
1976 SC 57, the Hon'ble Supreme Court laid down the following
 dictum:
"So far as tape records of speeches of some of the N.A.P. leaders are
concerned, 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."
I hold that the tape-record and its transcript are not admissible in
evidence for the following reasons namely:-
(1) The tape-record had been prepared and preserved by the
nephew of the petitioner. He is not an independent person and
he does not belong to independent authority.
(2) The transcript from the tape-record was not prepared under
independent supervision and control. The P.W. Haji Taj Din who
prepared the tape-record stated in his affidavit that he handed
over the cassette or tape-record to the petitioner. It was not
 annexed to the petition but it was produced before me by the
witness himself.
(3) The voice of the person alleged to be speaking must be duly
identified by the maker of the record or by others who know it.
(4) Accuracy of what was actually recorded had to be proved and
satisfactory evidence, direct or circumstantial had to be there so
as to rule out possibilities of tampering with the record.
(5) The witness who had made the tape-record was not part of his
routine duties in relation to election speeches but it was actually
made for the purpose of laying trap to procure evidence.
(6) The first respondent disputed that the tape-recorded voice was
his and stated that there had been interpolation in the record.
The issue is decided in the negative and against the petitioner."
Muhammad Zahir Shah Khan and another v. Nasiruddin and others
(1986 CLC 2463)
"3. One of the petitioners Zahir Shah has filed his affidavit of
evidence in support of the petition on 20th April, 1985 while the
other petitioner Malik Munsif did not file any affidavit of
evidence. It may be mentioned here that although the petitioner
mentioned names of as many as four private witnesses in the list
of witnesses submitted along with his petition but affidavits of
these witnesses were not filed along with the petition as
required under the Rules. Therefore, in support of the petition,
there was only one affidavit of Zahir Shah. The petitioner No. 1
was cross-examined by respondent No. 10 on 16th of October,
1985 and after close of his cross-examination the learned
counsel for the petitioners made an oral request that he may be
allowed to produce in evidence the four witnesses mentioned in
the list of witnesses but this oral request of the learned counsel
was disallowed by me on the ground that their affidavits of
evidence were not submitted by the petitioners along with the
petition as required under the Rules framed under section 62 of
the Act published on 16th of March, 1985, vide notification
No.F1(7)/85 Cord., dated 16th March, 1985. It may also be
mentioned here that at the same time the learned counsel for
the petitioners made a further oral request that he may be
allowed to produce a video cassette alleged to have been
prepared during the election campaign of respondent No. 10 but
that prayer was also disallowed by me on the ground that
neither this document is mentioned in the petition nor the date
of acquiring the said cassette is disclosed anywhere by the
petitioner. I also noted while declining the above request of the
learned counsel in my order, dated 16th October, 1985, that no
formal application was moved or filed by the petitioners in this
behalf. The case was adjourned on 16th October, 1985 after
closing the side of the petitioner to 19th October, 1985 for
evidence of respondent No.10. Respondent No. 10 was cross-
examined by the learned counsel for the petitioner at length on
29th October, 1985 and respondent No. 10 closed his side on that
date. On the same date, namely, 29th October, 1985 the learned
counsel for the petitioner submitted an application under
section 151, C.P.C. praying that the petitioner may be permitted
to produce the video cassette in Court and that the petitioner is
prepared to bear the expenses of playing that video cassette for
consideration by the Tribunal. Notice of this application was
given to the counsel for the respondent and the case was
adjourned to 19th November, 1985 for hearing of application as
well as arguments on the main case. Before considering the two
issues framed in the case I will first decide the application, dated
29th October, 1985 filed by the learned counsel for the petitioner
under section 151, C.P.C. praying for permission to produce the
video cassette as a document in the case. The application is
vehemently opposed by the respondent No. 10 who in his
counter-affidavit besides alleging that no ground has been made
out for its production had denied that any video cassette was
prepared during his election campaign. In the application filed
on 29th October, 1985 the petitioner has sought permission to
produce video cassette on the ground that this material was not
within the knowledge of the petitioner prior to 14th October,
1985 when for the first time he was told about the existence of
this video cassette by one Tamana Shah Warsi. It may be
mentioned here that the petitioner appeared for cross-
examination in Court on 16th October, 1985 i.e. after about two
days of allegedly acquiring the knowledge about the existence of
the video cassette. It is pertinent that the petitioner when
produced in Court for cross-examination made no attempt to
make any further addition to his affidavit of evidence which was
already filed in the Court along with the petition on 20th April,
1985. The learned counsel for the petitioner also made no
request that he may be allowed to put further question in
examination-in-chief as a result of discovery of some new
material with regard to the controversy before the Tribunal. No
doubt some questions were put to respondent No. 10 in cross-
examination on 29th October, 1985 with regard to the video
cassette which he denied but nothing was brought in evidence to
establish that the denial made by respondent No. 10 in his cross-
 examination was incorrect. It may further be mentioned here
that neither in the application under section 151, C.P.C. moved
by the learned counsel for the petitioner on 29th October, 1985
nor in the supporting affidavit filed by petitioner Zahir Shah
anything is disclosed to show that the contents of video cassette
are relevant to the controversy in the petition. It is also not
alleged either in the application or in the affidavit that the
contents of the video cassette are relevant to prove any of the
issues involved in the petition. The learned counsel for
respondent No. 10 also rightly contended that the oral request of
the petitioner having been declined by the Tribunal on 16th
October, 1985 a written prayer in that regard was not
maintainable. The learned counsel for the petitioner was unable
to point out any provision of law under which the Tribunal after
having once declined the oral request of the party could
entertain a second request through a written application.
Therefore, both on the legal plane as well as on merits no case is
made out for allowing production of video cassette in evidence.
I, therefore, reject the application of the petitioner filed on 29th
October, 1985 seeking permission to produce the video cassette
recorder in evidence in this petition."
Mst. Rukhsana Begum v District Judge, Karachi (East) and others (1987
MLDl 2425)
"This Constitutional Petition is directed against an order dated 26-
11-1986 passed by the District Judge Karachi East in Civil
Revision Application No.34/86 allowing the respondent's revision
and rejecting the present petitioner's application under Section
151, C.P.C. for permission to produce the cassette allegedly
containing conversation between the parties as to the settlement
talk after filing of the suit No. 221/85 which is pending in the
Court of IVth Senior Civil Judge Karachi East.
2. I have enquired from the learned counsel for the petitioner as to
the provision under which the above cassette was admissible as
a piece of evidence. His reply was that Article 164 of the Qanun-
e-Shahadat, 1984 (President's Order No. 10 of 1984) allows the
production of cassette as a piece of evidence being a modern
device. Article 164 of the Qanun-e-Shahadat 1984 (President's
Order No. 10 of 1984) reads as follows:-
Article 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."
3. (a) A perusal of the above section indicates that it confers
discretion on a Court to allow the production of any evidence
that may have become available because of modern devices or
techniques.
(b) In the instant case the learned Civil Judge has allowed the above
application of the petitioner but the learned District Judge in
revision took a contrary view on the basis of the two judgments
of the two learned Single Judges of this Court in the cases of
Hakim Ali Bhatti v. Qazi Abdul Hakim and others reported in
1986 CLC 1784 and Muhammad Zahir Shah Khan and another v.
Nasiruddin and others, reported in 1986 CLC 2463.
4. Mr. Abdul Aleem K. Talib, learned counsel for the petitioner has
vehemently submitted that since the learned trial Court has
allowed the production of the cassette, the learned Revisional
Court was not justifying in reversing the order. However, the
fact remains that the petitioner has not been able to point out
any infringement of any provision of law by the impugned
order. In my view it is not a fit case for a Constitutional Petition.
The petition is, therefore, dismissed in limine."
Asfandyar and another v Kamran and another (2016 SCMR 2084)
"The record reveals that during investigation the petitioner tried to
produce the footage of some C.C.T.V. which were produced by the
petitioner/ accused before the investigating officer. No doubt the
trial Court, under Article 164 of the Order, 1984, may allow to
produce the said footage of C.C.T.V. but it is incumbent upon the
defence to prove the same in accordance with the provisions of
the Order, 1984. The defence had ample opportunity to produce
in his defence, the concerned person who had prepared the said
footage from the C.C.T.V. system in order to prove the same. In
that eventuality, the adverse party would be given an
opportunity to cross-examine the said witness regarding the
genuineness or otherwise of the said document. Any document
brought on record could not be treated as proved until the same
is proved strictly in accordance with the provisions contained in
the Order, 1984. While discussing these aspects of the case, the
High Court restricted the admissibility only to the extent of
Article 79 of the Order, 1984 whereas there are certain other
provisions/Articles in the Order, 1984 for proving the documents
which are procured through the modern devices and techniques.
Mere producing any footage of C.C.T.V. as a piece of evidence in
 the Court is not sufficient to be relied upon unless and until the
same is proved to be genuine. In order to prove the genuineness
of such footage it is incumbent upon the defence or prosecution
to examine the person who prepared such footage from the
C.C.T.V. system. So we modify the impugned judgment to the
extent that the accused is at liberty to produce evidence and
prove the same strictly in accordance with the provisions of the
Order, 1984 and it will not confine only to the Article 79 of the
Order, 1984."
10. Apart from the precedent cases mentioned above a video
recording or footage was held to be admissible in evidence upon
fulfillment of some conditions in the following reported cases:
Ammar Yasir Ali v The State (2013 PCr.LJ 783)
(Mere producing of CCTV video as piece of evidence and its
watching in open court was not sufficient to be relied upon
unless and until corroborated and proved to be genuine; as a
proof of genuineness of such CCTV video, it was incumbent upon
prosecution to examine the person who recorded the video to
testify the same; prosecution even failed to point out the source
of providing CCTV video; investigating officer who received
CCTV video stated in his evidence that he received it from a
person who did not want to disclose his name or identity being a
man of some surveillance; investigating officer admitted that
nothing was visible and identifiable in the video as such the
CCTV was not reliable piece of evidence)
Akhtar Ali Ghowda v The State (2015 MLD 1661)
Munas Parveen v Additional Sessions Judge/Ex-Officio Justice of Peace,
Shorkot and others (PLD 2015 Lahore 23 1)
(Information conveyed over modern devices such as SMS validly
accepted all over the world; however the witnesses in whose
 presence such information was conveyed or received are always
important to prove a fact through its verification)
Shahid Zafar and others v. The State (2015 PCr.LJ 628)
Sikandar Ali Lashari v. The State and another (2016 YLR 62)
Muhammad Sadiq @ Husnain and others v. The State and others (2016
PCr.LJ 1390)
Zakir Hussain v The State (2017 PCr.LJ 757)
Babar Ahmad v The State (2017 YLR 153)
Hasham Jamal v. The State and another (2018 YLR Note 105)
Muhammad Irfan v. The State and another (2018 PCr.LJ 1319)
(Forensic report prepared qua a video by an analyst could be looked
into without reservation in view of S. 9(3) of the Punjab Forensic
Science Agency Act, 2007; reliance placed upon forensic data,
procured through technical system, which was not amenable to
human interference)
Yasir Ayyaz and others v. The State (PLD 2019 Lahore 366)
(Qualification is that of integrity of the procedure/process)
Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz
Sharif and others (2019 PCr.LJ 665)
(Newspaper cuttings or video recordings have to be proved by the
author or creator)
11. The precedent cases mentioned above show that in the matter of
proving an audio tape or video before a court of law the following
requirements are insisted upon:
* No audio tape or video can be relied upon by a court until the
same is proved to be genuine and not tampered with or
doctored.
* A forensic report prepared by an analyst of the Punjab Forensic
Science Agency in respect of an audio tape or video is per se
 admissible in evidence in view of the provisions of section 9(3)
of the Punjab Forensic Science Agency Act, 2007.
* Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in
the discretion of a court to allow any evidence becoming
available through an audio tape or video to be produced.
* Even where a court allows an audio tape or video to be produced
in evidence such audio tape or video has to be proved in
accordance with the law of evidence.
* Accuracy of the recording must be proved and satisfactory
evidence, direct or circumstantial, has to be produced so as to
rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be
the actual record of the conversation as and when it was made
or of the event as and when it took place.
* The person recording the conversation or event has to be
produced.
* The person recording the conversation or event must produce the
audio tape or video himself.
* The audio tape or video must be played in the court.
* An audio tape or video produced before a court as evidence ought
to be clearly audible or viewable.
* The person recording the conversation or event must identify the
voice of the person speaking or the person seen or the voice or
person seen may be identified by any other person who
recognizes such voice or person.
* Any other person present at the time of making of the
conversation or taking place of the event may also testify in
 support of the conversation heard in the audio tape or the event
shown in the video.
* The voices recorded or the persons shown must be properly
identified.
* The evidence sought to be produced through an audio tape or
video has to be relevant to the controversy and otherwise
admissible.
* Safe custody of the audio tape or video after its preparation till
production before the court must be proved.
* The transcript of the audio tape or video must have been prepared
under independent supervision and control.
* The person recording an audio tape or video may be a person
whose part of routine duties is recording of an audio tape or
video and he should not be a person who has recorded the audio
tape or video for the purpose of laying a trap to procure
evidence.
* The source of an audio tape or video becoming available has to be
disclosed.
* The date of acquiring the audio tape or video by the person
producing it before the court ought to be disclosed by such
person.
* An audio tape or video produced at a late stage of a judicial
proceeding may be looked at with suspicion.
* A formal application has to be filed before the court by the person
desiring an audio tape or video to be brought on the record of
the case as evidence.
12. As the trial court in the case of Mian Muhammad Nawaz Sharif
has already become functus officio and as his appeal against his
conviction and sentence recorded by the trial court is presently
pending before the Islamabad High Court, Islamabad, therefore, the
only Court which can take the relevant video in evidence of that case is
the Islamabad High Court, Islamabad. An appellate Court can take
additional evidence under section 428, Cr.P.C. which provides as
follows:
428. Appellate Court may take further evidence or direct it to be
taken. (1) In dealing with any appeal under this Chapter, the
Appellate Court, if it thinks additional evidence to be necessary,
shall record its reasons, and 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.
(2) 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 such Court shall thereupon proceed to
dispose of the appeal.
(3) Unless the Appellate Court otherwise directs, the accused or his
pleader shall be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the
provisions of Chapter XXV, as if it were an inquiry.
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 why it thinks that taking of
additional evidence is necessary. The necessity of taking additional
evidence at the appellate stage must be felt by the appellate court itself
and the same is not to depend upon what a party to the appeal thinks
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. It is,
thus, obvious that in the context of the present matter if the Islamabad
High Court, Islamabad, either on its own motion or on an application
submitted by the appellant namely Mian Muhammad Nawaz Sharif,
feels the necessity of taking additional evidence in the form of the
relevant video then it may record its reasons for feeling such necessity
and may then follow the steps mentioned in section 428, Cr.P.C. It goes
without saying that in such a case the relevant video may be taken as
(additional) evidence only after complying with the requirements
detailed above for proving a video before a court of law.
13. Issue No. (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?
If upon due fulfillment of the preconditions mentioned in the
preceding paragraphs the relevant video is taken as additional
evidence by the Islamabad High Court, Islamabad under section 428,
Cr.P.C. either on its own motion or on an application submitted by the
appellant namely Mian Muhammad Nawaz Sharif or any other party
to the case then the High Court shall have to decide as to whether the
conduct of the learned Judge of the trial court depicted through the
said video, if found to be objectionable, had caused any prejudice or
not. If the High Court comes to the conclusion that the process of trial
and the evidence recorded during the trial were not affected by the
conduct of the learned Judge of the trial court then the Islamabad High
Court shall have the option either to reappraise the evidence itself and
decide the appeal on its merits after reaching its own conclusions on
the basis of the evidence available on the record or to remand the case
to the trial court for re-deciding the case after hearing of arguments of
the parties on the basis of the evidence already recorded. We would
not like to comment on these aspects any further as the choices
available with the High Court in the above mentioned eventualities
would lie within the jurisdiction and discretion of the High Court and
such choices would be exercised by it on the basis of the facts found
and the conclusions reached by it.
14. Issue No. (v):
The conduct of the learned Judge namely Mr. Muhammad Arshad
Malik in the episode.
The pivot of the matter before us is the learned Judge of the trial
court namely Mr. Muhammad Arshad Malik who had tried and
decided the relevant criminal cases against Mian Muhammad Nawaz
Sharif. He serves under the Lahore High Court, Lahore, was on
deputation at the relevant time and was serving as a Judge,
Accountability Court-II, Islamabad. We have been informed that he has
already been relieved of that position and has been made an Officer
on Special Duty (OSD) but he has not so far been repatriated to the
Lahore High Court, Lahore and that is why no departmental
disciplinary proceedings have been initiated against him so far.
However, the press release issued by him on 07.07.2019 and the
affidavit sworn by him on 11.07.2019 are themselves damning
indictments against him. His admitted conduct emerging from that
press release and the affidavit stinks and the stench of such stinking
conduct has the tendency to bring bad name to the entire judiciary as
an institution. He had unabashedly admitted in the press release and
the affidavit that he had a shady past and had skeletons in his
cupboard for which he was vulnerable to blackmail, during the trial
being conducted by him he had been holding private meetings with
sympathizers of the accused person being tried by him, he was
threatened and inducements were offered to him during the trial but
he had not reported the same to any superior authority and had never
considered recusing from the trial, after convicting the accused person
in the trial he had met the convict at his residence in a different city,
he had even met a son of the convict in a different country and finally
he had tried to help the convict in his appeal filed against his own
judgment by dictating some grounds of appeal and pointing out some
stated weaknesses in the case against the convict convicted by him.
Such admitted conduct of the Judge was shocking, to say the least,
besides being abhorrent and offensive to the image of a Judge in the
society. His sordid and disgusting conduct has made the thousands of
honest, upright, fair and proper Judges in the country hang their heads
in shame. The learned Attorney-General has assured the Court that the
said Judge shall be repatriated to the Lahore High Court, Lahore
immediately and we expect that after his repatriation appropriate
departmental disciplinary proceedings shall be initiated against him
by the Lahore High Court, Lahore forthwith.
15. In the end we find that it may not be an appropriate stage for
this Court to interfere in the matter of the relevant video and its
effects, particularly when the said video may have relevance to a
criminal appeal presently sub judice before the Islamabad High Court,
Islamabad. A criminal investigation is already being conducted into
the matter by the Federal Investigation Agency, some other offences or
illegalities under some other laws referred to by the learned Attorney-
General might also entail inquiries or investigations by the competent
agencies or fora and any probe into the matter by a Commission to be
constituted by the Government or by this Court may end up only with
an opinion which may have no relevance or admissibility in the
relevant appeal pending before the Islamabad High Court, Islamabad.
In this view of the matter all these petitions are disposed of with the
observations made above.
MWA/I-7/S Order accordingl
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