Jurists say audio leak unlikely to affect PML-N leaders’ case

LAHORE: The viral audio clip of former chief justice of Pakistan Mian Saqib Nisar has no evidentiary value and hence could not affect the appeals pending against conviction of PML-N leader Nawaz Sharif and his daughter Maryam Nawaz unless the strict criteria laid down by the Supreme Court is followed to prove its authenticity, legal jurists believe.

PML-N has alleged that Saqib Nisar could be heard in the audio clip purportedly saying that PML-N leader Nawaz Sharif and his daughter Maryam Nawaz are being sentenced and imprisoned on the instructions of powerful institutions to pave the way for Imran Khan to come to power.

Read more: PML-N wants Saqib Nisar’s name on ECL, submits resolution in Punjab Assembly

Earlier the SC in its judgment in the Arshad Malik video scandal had laid down 21 conditions to prove the authenticity of audio tape or video in court. The most notable of these terms are:

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• 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.
• An audio tape or video recorder may be a person whose routine duties are to record audio tape or video and should not be a person who records audio tape or video for the purpose of laying a trap for evidence.
• The forensic report prepared by the analyst of Punjab Forensic Science Agency regarding audio tape or video is admissible on the basis of evidence.
• The accuracy of the recording must be proved and satisfactory evidence must be presented to rule out any possibility of tampering with the record.
• The person recording the conversation or event must prepare and make the audio tape or video himself.
• The audio tape or video presented to the court as evidence must be clearly audible or viewable.
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• After the audio tape or video has been produced, it is important to prove its safe custody until it is presented in court.
• The source of the audio tape or video must be indicated.

Shamim ur Rehman Malik, former secretary Supreme Court Bar Association, says this audio tape will have no evidentiary value in the eyes of law until the appellate court (Islamabad High Court) adopts the procedure set by the apex court and accordingly establishes the legal status and veracity of the clip.

He says, article 164 of the Qanun-i-Shahadat Order (Evidence Law), 1984 empowers the court to allow any evidence to be presented by audio tape or video and the article provides “Evidence production that has become available due to modern tools etc.” However, it was amended by legislation in the National Assembly in June 2017 and now allows for the recognition of evidence gathered only through audio and video recordings.

Read more: Former CJP Nisar rejects alleged leaked audio clip, terms it ‘fabricated’

According to Malik, Nawaz or Maryam may not present the audio clip as a piece of evidence to take advantage in their appeals against conviction pending before the IHC. He is of the view that firstly they have to move an application to IHC for presenting additional evidence which, according to him, is very rarely accepted at appeal stage.

He, however, said, “If their application is accepted, a lengthy and cumbersome procedure will start. They will have to prove how and by whom the clip was recorded. The court can then summon the person who recorded or provided the clip. The other side will also be allowed to cross-examine them to establish the authenticity of the clip.”

To a question, he said that a local forensic agency could be hired if both the parties disagree on sending it to Punjab forensic laboratory. He, however, ruled out the possibility of overturning their conviction on the sole ground that the genuineness of voice in audio tape is proved.

Maqsood Buttar, president of the Lahore High Court Bar Association (LHCBA), also expressed the same views that the alleged audio clip could not be accepted as an admissible piece of evidence in the present form.

Read more: IHC seeks reply from attorney general on Saqib Nisar’s alleged leaked audio

Referring to the decision of the SC in the video leak scandal case of former accountability court judge Arshad Malik, he said the apex court laid down strict conditions for accepting the audio or video clip as evidence. He believes that a conspiracy has been hatched against the judiciary to tarnish the image of the judges in public.

Former president Supreme Court Bar Association Ali Ahmed Kurd said the audio clip of Saqib Nisar would be a test for the judiciary and a high-powered judicial commission should be constituted to probe the allegations to dig out the truth.

Judge Arshad Malik, former IHC judge Justice Shaukat Aziz Siddiqui, Justice Qazi Faez Isa of the Supreme Court and the former chief justice of Gilgit-Baltistan have levelled similar allegations in the past.

He said that in order to maintain public confidence, an independent inquiry should be held into all the above allegations.

Kurd remembered that disciplinary action was initiated against judge Arshad Malik for getting influenced in the Azizia Steel Mills corruption reference against Nawaz. He said later the judge was removed from his post but surprisingly, the allegations against him were never investigated.

Syed Sajjad Haider Naqvi, a legal expert in criminal law, believes that it would be a hard nut to crack for the lawyers of Nawaz Sharif and Maryam Nawaz to successfully establish the authenticity of the audio clip after fulfilling all the conditions laid down by the Supreme Court. He said if they were able to prove it genuine, it would definitely create dents in the case. Their conviction would become doubtful and the judges might acquit them, he remarked.

Read more: Contempt of court laws do not protect ex-CJP from criticism, says IHC

However, he admitted that there was no precedent in the past where conviction was set aside on the basis of audio or video clip.

Lahore Bar Association secretary Mudassar Butt said the fate of Nisar’s clip was still hanging in the balance, adding that it would be of no use for PML-N unless all the conditions laid down by the SC were met. He agreed that the PML-N would gain political advantage from it.