Enraged SC announces ‘leaked verdict’

ISLAMABAD – The Supreme Court on Tuesday dismissed Hussain Nawaz’ petition seeking court order to stop the Joint Investigation Team (JIT) from video recording the witness statements.

A three-judge Special Bench, set up for implementation of April 20 verdict in Panama leaks case, expressed resentment at apparent leak of its judgment, saying the yesterday (Tuesday)’s media reports showed the verdict was already known.

It also expressed bitterness on government’s ‘using’ the media for influencing public opinion, instead of presenting a solid case on its apprehensions regarding the investigation in the court.

Head of bench, Justice Ejaz Afzal Khan said that JIT is working on the court orders and, therefore, any concerns regarding its functioning should be addressed directly to the court.

The six-member team has been tasked by the apex court to probe the offshore business affairs of the Sharif family under the April 20 decision.

The court also ordered Attorney General Pakistan Ashtar Ausaf to file a concise statement after Eid on the JIT’s allegations that the Intelligence Bureau (IB) was creating hindrance in the investigation and harassing members of the probe team.

Hussain Nawaz, the elder son of Prime Minister Nawaz Sharif, had moved the court after a screen grab from the video recording of his first JIT appearance was leaked.

He sought court directives for the JIT to stop video recording of the proceedings relating to examination and interrogation of witnesses. He also demanded a judicial commission investigate the circumstances leading to the photo leak.

The bench on Tuesday announced the five-page judgment, authored by bench head Justice Ejaz Afzal Khan, which had been reserved earlier.

Rejecting Hussain’s request, the court said that video recordings were only used for preparing the transcript and they help in maintaining accuracy.

“Till the law is amended, the video recordings will not be shown in the court room,” Justice Ejaz said. “Video recordings cannot be presented as evidence before the court,” he assured.

Justice Ejaz also said an inquiry was conducted, and the person behind the photo leak has been identified and sent back to his department.

To this, Ashtar Ausaf said it was very strange that the name of the person was not disclosed. “I have no objection to making his name public,” he said.

However, the court said the report (identifying the culprit) would not be disclosed to the public.

During Tuesday’s proceedings, Justice Azmat cautioned the AGP that his reply on JIT complaint against IB should not reach the court through media.

Addressing him, he said if something comes to their knowledge then “we will ask you; therefore, the reply should come from you and not through the media”.

Justice Ejaz Afzal remarked that no part of the judicial proceeding is kept secret but the proceedings of the JIT – constituted in pursuance of the Panama leaks judgment – fall under Section 172 of CrPc. There are certain dynamics of this exercise.

Justice Ijazul Ahsan said that when the court inquires about something from government departments, instead of responding to the court, most of them directly or indirectly release information to the press or hold press conferences.

Justice Ejaz Afzal Khan said the material is provided to media in cumulative form. “The media cannot be blamed for this since [government] institutions provide them with prepared material,” he said.

He clarified that the court wants its proceedings to reach the people, not rumours, adding, “There is no point in circulating baseless information in media”.

The head of the bench remarked, “Let’s not turn to the media circus and media trial; all the things should be done in a professional manner.”

Justice Ejaz inquired from the AGP, “Have you gone through today’s newspapers?” He added, “Yesterday the judgment [on video recording] was rendered in the press – which had to be announced today!”

Justice Azmat Saeed commented that if one reads the day’s newspapers, it would appear that the Attorney General’s services were no longer required.

“The media seems to have already handed out the verdict on channels and newspapers,” he remarked, supporting Justice Ejaz’ observation. “Reports suggest that the government is getting [such reports] published itself,” he went on to say.

“[Nonetheless,] media reports cannot influence the court and we know what needs to be done,” he continued. “We are not as immature as to not understand what is happening here,” he added.

Ashtar Ausaf said it had happened in the past too that the judgments were published before their announcement by the court. “Unfortunately, they [media] have not grown up,” he said.

Justice Ejaz said let them grow up, but when this court takes action then they start groaning.

When the court asked the attorney general to file a reply on the IB activities, he said: “You have put me to the onerous task.”

“This is an onerous case,” replied Justice Ijaz and asked the AGP to tell the self-appointed [government] spokespersons to weigh their words [before they speak].

Ashtar Ausaf said it should be “for the other side too”.

Justice Ejaz said they have set parameters, adding the media articles and the speeches of politicians can’t change our mind. He said they were least concerned what the media says. “However, we are amenable to saner arguments,” he added.

Justice Ejaz Afzal also reiterated that the respondents (the Sharif family) could not be given months to submit their answers, as the JIT had to complete its proceedings in days.

At the conclusion of the case, the attorney general said in no way the authority and dignity of the Supreme Court will be compromised. Justice Ejaz said, “We appreciate your good gestures”.

The court postponed the hearing until after Eid holidays, saying the next hearing would be fixed as per the availability of the members of the bench.

Details of video recording judgment

The verdict on Hussan Nawaz’ plea against video recording by JIT read: “Audio or video recording cannot be admitted into evidence for the proof of such statement till the law is amended, as it has been amended in India and other countries, but its use to facilitate recording of such statement cannot be discouraged on the basis of so pedantic an interpretation of Sections 161 and 162 of the CrPC.

“The reading of Section 161 CrPC would reveal that a police officer investigating the case may examine any person supposed to be acquainted with the facts and circumstances of the case.

“Such person shall be bound to the answer the questions relating to the case except for the questions whose answers tend to expose him to a criminal charge, penalty or forfeiture.

While the reading of Section 162 CrPC would reveal that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record, be used except for the purpose of contradicting its maker in terms of Article 140 of the Qanoon-e-Shahadat Order.

“The signing of such statement by its maker is prohibited because it tends to bind its maker and impair his freedom to speak the truth in the court.

“The recording of such statement by audio video electronic means could be treated at par with a statement which has been signed by its maker, inasmuch as it hampers his freedom to testify in the court.”

However, the judgment noted that in any case use of audio or video devices to facilitate the recording of such statement cannot be said to have been prohibited by any interpretation of Section 161 and 162 of CrPc when the finished product to be used in the court to confront the witness is the statement reduced to writing and not its audio or video recording.

The court said since the statement so transcripted or reduced to writing cannot enlarge its scope or its probative worth it could possibly have on its proof. The concerns voiced by the applicant being paranoiac appear to be more of form rather than substance.

The judgement said that in the age of computer where almost everything is communicated and even business of every type is transacted online, emphasis on the form of doing a thing as it used to be done in 1898 would amount to putting at naught the dynamics of scientific and technological advancements which have not only liberated man from exhausting labour but also made the things easier.

The court observed that the law in many countries of the East and the West has been changed and even re-enacted. “Addition of the word ‘truly’ in sub-Section 2 after the word ‘answer’ and insertion of the proviso to sub-Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India, providing for recording of such statement by audio-video electronic means is an illuminating example on the subject.”

“Till the law is amended, the video recordings will not be shown in the court room,” Justice Ejaz said. “Video recordings cannot be presented as evidence before the court,” he assured.

Justice Ejaz also said an inquiry was conducted, and the person behind the photo leak has been identified and sent back to his department.

To this, Ashtar Ausaf said it was very strange that the name of the person was not disclosed. “I have no objection to making his name public,” he said.

However, the court said the report (identifying the culprit) would not be disclosed to the public.

During Tuesday’s proceedings, Justice Azmat cautioned the AGP that his reply on JIT complaint against IB should not reach the court through media.

Addressing him, he said if something comes to their knowledge then “we will ask you; therefore, the reply should come from you and not through the media”.

Justice Ejaz Afzal remarked that no part of the judicial proceeding is kept secret but the proceedings of the JIT – constituted in pursuance of the Panama leaks judgment – fall under Section 172 of CrPc. There are certain dynamics of this exercise.

Justice Ijazul Ahsan said that when the court inquires about something from government departments, instead of responding to the court, most of them directly or indirectly release information to the press or hold press conferences.

Justice Ejaz Afzal Khan said the material is provided to media in cumulative form. “The media cannot be blamed for this since [government] institutions provide them with prepared material,” he said.

He clarified that the court wants its proceedings to reach the people, not rumours, adding, “There is no point in circulating baseless information in media”.

The head of the bench remarked, “Let’s not turn to the media circus and media trial; all the things should be done in a professional manner.”

Justice Ejaz inquired from the AGP, “Have you gone through today’s newspapers?” He added, “Yesterday the judgment [on video recording] was rendered in the press – which had to be announced today!”

Justice Azmat Saeed commented that if one reads the day’s newspapers, it would appear that the Attorney General’s services were no longer required.

“The media seems to have already handed out the verdict on channels and newspapers,” he remarked, supporting Justice Ejaz’ observation. “Reports suggest that the government is getting [such reports] published itself,” he went on to say.

“[Nonetheless,] media reports cannot influence the court and we know what needs to be done,” he continued. “We are not as immature as to not understand what is happening here,” he added.

Ashtar Ausaf said it had happened in the past too that the judgments were published before their announcement by the court. “Unfortunately, they [media] have not grown up,” he said.

Justice Ejaz said let them grow up, but when this court takes action then they start groaning.

When the court asked the attorney general to file a reply on the IB activities, he said: “You have put me to the onerous task.”

“This is an onerous case,” replied Justice Ijaz and asked the AGP to tell the self-appointed [government] spokespersons to weigh their words [before they speak].

Ashtar Ausaf said it should be “for the other side too”.

Justice Ejaz said they have set parameters, adding the media articles and the speeches of politicians can’t change our mind. He said they were least concerned what the media says. “However, we are amenable to saner arguments,” he added.

Justice Ejaz Afzal also reiterated that the respondents (the Sharif family) could not be given months to submit their answers, as the JIT had to complete its proceedings in days.

At the conclusion of the case, the attorney general said in no way the authority and dignity of the Supreme Court will be compromised. Justice Ejaz said, “We appreciate your good gestures”.

The court postponed the hearing until after Eid holidays, saying the next hearing would be fixed as per the availability of the members of the bench.

Details of video recording judgment

The verdict on Hussan Nawaz’ plea against video recording by JIT read: “Audio or video recording cannot be admitted into evidence for the proof of such statement till the law is amended, as it has been amended in India and other countries, but its use to facilitate recording of such statement cannot be discouraged on the basis of so pedantic an interpretation of Sections 161 and 162 of the CrPC.

“The reading of Section 161 CrPC would reveal that a police officer investigating the case may examine any person supposed to be acquainted with the facts and circumstances of the case.

“Such person shall be bound to the answer the questions relating to the case except for the questions whose answers tend to expose him to a criminal charge, penalty or forfeiture.

While the reading of Section 162 CrPC would reveal that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record, be used except for the purpose of contradicting its maker in terms of Article 140 of the Qanoon-e-Shahadat Order.

“The signing of such statement by its maker is prohibited because it tends to bind its maker and impair his freedom to speak the truth in the court.

“The recording of such statement by audio video electronic means could be treated at par with a statement which has been signed by its maker, inasmuch as it hampers his freedom to testify in the court.”

However, the judgment noted that in any case use of audio or video devices to facilitate the recording of such statement cannot be said to have been prohibited by any interpretation of Section 161 and 162 of CrPc when the finished product to be used in the court to confront the witness is the statement reduced to writing and not its audio or video recording.

The court said since the statement so transcripted or reduced to writing cannot enlarge its scope or its probative worth it could possibly have on its proof. The concerns voiced by the applicant being paranoiac appear to be more of form rather than substance.

The judgement said that in the age of computer where almost everything is communicated and even business of every type is transacted online, emphasis on the form of doing a thing as it used to be done in 1898 would amount to putting at naught the dynamics of scientific and technological advancements which have not only liberated man from exhausting labour but also made the things easier.

The court observed that the law in many countries of the East and the West has been changed and even re-enacted. “Addition of the word ‘truly’ in sub-Section 2 after the word ‘answer’ and insertion of the proviso to sub-Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India, providing for recording of such statement by audio-video electronic means is an illuminating example on the subject.”

Source: The Nation