IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa, CJ 
Mr. Justice Sh. Azmat Saeed 
Mr. Justice Umar Ata Bandial 
 
 
Constitution Petitions No. 10, 11 and 12 of 2019 
(Regarding the allegations leveled through a media briefing against 
Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad) 
 
 
Ishtiaq Ahmed Mirza  
(in Const. P. No. 10 of 2019) 
Sohail Akhtar 
 
 
(in Const. P. No. 11 of 2019) 
Tariq Asad  
 
 
(in Const. P. No. 12 of 2019) 
 
 
…Petitioners 
 
 
 
 
 
versus 
 
Federation of Pakistan, etc. (in all cases) 
            
…Respondents 
 
 
For the petitioners: 
Ch. Munir Sadiq, ASC 
Syed Ali Imran, ASC 
Ch. Zubair Ahmed Farooq, 
ASC 
Syed Rifaqat Hussain Shah, 
AOR 
(in Const. P. No. 10 of 2019) 
Mr. Muhammad Ikram Ch., 
ASC 
(in Const. P. No. 11 of 2019) 
In person (in Const. P. No. 12 
of 2019)  
 
For the respondents: 
Mr. Anwar Mansoor Khan, 
Attorney-General for Pakistan 
 
Mr. 
Sajid 
Ilyas 
Bhatti, 
Additional 
Attorney-General 
for Pakistan 
 
Mr. Sohail Mehmood, Deputy 
Attorney-General for Pakistan  
(in all cases) 
 
Dates of hearing: 
16.07.2019, 
23.07.2019 
& 
20.08.2019 
 
 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
2
ORDER 
 
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 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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
3
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
4
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
5
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
6
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, 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-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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
7
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
8
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 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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
9
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. 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
10
 
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
11
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: 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
12
 
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. 
 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
13
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
14
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 as 
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. Adul 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. 
 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
15
(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 
alongwith his petition but affidavits of these witnesses 
were not filed alongwith 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 alongwith 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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
16
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 
alongwith 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), etc.  
(NLR 1987 Civil 799) 
 
“This Constitutional Petition is directed against an 
order dated 26-11-1986 passed by the District Judge 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
17
Karachi East in Civil Revision Application No. 34/86 
allowing the respondent’s revision and rejecting the 
present petitioner’s application under Section 151, CPC 
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 Section 164 of the Qanun-e-Shahadat, 1984 
(President’s Order No. X of 1984) allows the production of 
cassette as a piece of evidence being a modern device. 
Section 164 of the Qanun-e-Shahadat 1984 (President’s 
Order No. X of 1984) reads as follows:- 
 
Sec. 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 & others reported in 1986 CLC 1784 
and Muhammad Zahir Shah Khan & 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 section 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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
18
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 P.Cr.L.J. 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 231)  
 
(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 P.Cr.L.J. 628)  
Constitution Petitions No. 10, 11 and 12 of 2019 
 
19
 
Sikandar Ali Lashari v The State and another  
(2016 YLR 62)  
 
Muhammad Sadiq @ Husnain and others v The State and others  
(2016 P.Cr.L.J. 1390) 
 
Zakir Hussain v The State  
(2017 P.Cr.L.J. 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 P.Cr.L.J. 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 P.Cr.L.J. 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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
20
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.  
 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
21
*  
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
22
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
23
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
24
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 
Constitution Petitions No. 10, 11 and 12 of 2019 
 
25
this view of the matter all these petitions are disposed of with the 
observations made above. 
  
 
 
Chief Justice 
 
Judge 
 
Judge 
 
 
 
Announced in open Court at Islamabad on 23.08.2019. 
 
 
 
Chief Justice 
 
 
Islamabad  
23.08.2019 
Approved for reporting. 
Arif