QB-2022-002648 - [2025] EWHC 2565 (KB)

The Arshad Sharif Report

As part of a wider case concerning the role of the ISI and other organisations in Pakistan, the Defendant made reference, in an interlocutory witness statement dated 23 March 2023, to the life and death of Arshad Sharif, who he described as “a famous investigative journalist in Pakistan” who “exposed many stories of military and bureaucratic corruption”. Following the sudden and violent death of Arshad Sharif in Kenya on 23 October 2022, the Federal Investigation Agency (“FIA”) in Pakistan organised a Fact Finding Team (“FFT”) to investigate the matter, and it produced a long and detailed Report on 2 December 2022.

At [78] of that witness statement, the Defendant states (emphasis added): “This report sets out how Arshad Sharif was tortured and killed and how ISI officers were linked to that incident, how he was hunted in Pakistan, the fake police case against him, how he tried to flee to Dubai and [was] then forced to leave there as well. It is no longer a conspiracy theory to state that the ISI was involved in this killing, it has now been made official by a government report.” The Defendant maintained at trial that this evidence is accurate, while Mr Lemer submitted that it did not, in truth, accord with the contents of the Report.

Mr Lemer’s main point was that the Key Findings at paragraphs 283-291 in the Report do not bear out the Defendant’s evidence. That appears to me to be correct. There is no mention of the ISI in those Key Findings. Among other things, they state at paragraph 289 “there is no concrete evidence to establish that Arshad Sharif was tortured before killing”.

Mr Harding submitted that the Key Findings should not be read in isolation. That proposition is uncontentious. However, it is, or should be, in my view, equally uncontentious that if the FFT had concluded that the ISI was involved in the killing of Arshad Sharif that is a matter that would have been given prominence in the Key Findings.

Mr Harding’s second submission was “This is a Pakistani report and, therefore, it must be read in the way a Pakistani committee puts forwardsuggestions”. In other words, as I understand it, the Defendant’s argument is to the effect: “Although the FFT does not overtly state that the ISI was involved in the killing of Arshad Sharif, one would not expect the FFT to do that, and the FFT has nevertheless ‘made this official’ by the fact findings that it has made in the Report”. In my judgment, this line of argument reflects two cardinal features of the present case. First, it encapsulates a major problem which was posed for the Court, namely how to evaluate evidence concerning events in Pakistan when viewed through the prism of propositions such as “not everything in Pakistan is as it seems”, and “things are done differently in Pakistan to the way in which they are done in the UK”. The parameters of these points are unclear, and any endeavour to heed them leaves the Court rudderless and without a compass on an open sea. For example, if a statement such as “there is no concrete evidence of torture” is not to be understood as meaning what it actually says, is to be understood as meaning (i) that there is concrete evidence, but the maker of the statement cannot or will not say so, or (ii) something else, and, if so, what? Second, it reflects what I find, on the balance of probabilities, to be the Defendant’s attitude to information obtained by him from sources, namely to interpret that information according to his own understanding and beliefs and in keeping with his own standpoint, but without indicating in the statements that he published that this was the process involved. In this regard, in keeping with s4, if a source tells a journalist “there is no concrete evidence of X”, it may be that the journalist could reasonably believe that it is in the public interest to publish words to the effect “although Y says there is no concrete evidence of X, in my opinion (having regard to other statements that Y has made, and the constraints that Y is under) those words are in fact to be taken as revealing that X is true”. However, it is difficult to see how the same applies to publishing as an unvarnished fact the statement “X is true”.

In support of his case that the Report does indeed support his evidence as to what it “makes official”, the Defendant referred to the following further paragraphs of the Report: 70-72, 251, 255, 260, 275, 279, 283, 286. Mr Harding additionally relied on paragraph 269.

In brief, paragraphs 70-71 of the Report rehearse that allegations were made against Arshad Sharif in Pakistan, including that he was involved in false propaganda against the Pakistan Army. Paragraph 251 details the involvement of an individual known as Waqar with certain events after Arshad Sharif’s death, and states that Waqar is well connected with Kenyan police and intelligence services. Paragraph 255 states that Waqar is also extremely well connected in Pakistan, including to the ISI Sector Commander Islamabad, but that it is unclear whether this relationship only came about as a result of inquiries after Arshad Sharif’s death. Paragraph 260 says that Waqar’s brother Khurrum, who was driving the car in which Arshad Sharif was a passenger when he was shot, is deeply under the influence of Waqar. Paragraph 269 states that after the vote of no confidence in Imran Khan’s government in March 2022, Arshad Sharif became critical of the military’s stance, and was particularly sharp in his criticism of some individuals. Paragraph 275 states that Arshad Sharif left Pakistan due to a fear of getting arrested, and was told by the police in the UAE that there was pressure to have him deported from the UAE and that he would be better off going to a country that did not have good ties to Pakistan. Paragraph 279 states that not only was there ambiguity as to the narration of facts emerging (essentially, in this instance, from the authorities) in Kenya but also there was ambiguity as to the role of the institutions in Kenya with regard to their investigation of the killing of Arshad Sharif. Paragraph 283 states (as the first of the Report’s Key Findings) that “There were compelling reasons for Arshad Sharif to leave Pakistan because of criminal cases registered against him in different districts”. Paragraph 286 (which contains another of the Report’s Key Findings) states “Waqar is connected to National Intelligence Service (NIS) of Kenya and International Intl. agencies and police. The fact that he handed over the personal cell phone and IPad of Arshad Sharif to an NIS officer rather than to the police establishes his links with NIS. His linkage with national and international agencies provides a scope ofpossibility of transnational characters in this case”. To all this, I would add the following Key Findings in paragraphs 290 and 291 of the Report: “The transnational roles of characters in Kenya, Dubai and Pakistan in this assassination cannot not be ruled out. Both the members of the FFT have a considered understanding that it is a case of planned targeted assassination with transnational characters rather than a case ofmistaken identity.”

In my judgment, on any reasonable reading of these passages they fall a long way short of “making it official” that the ISI was involved in the killing of Arshad Sharif. In my opinion, the Report supports conclusions to the effect that (i) the murder was a “planned targeted assassination” rather than a case of mistaken identity, (ii) there are grounds to believe that persons outside Kenya played a part in the murder, (iii) Arshad Sharif had made enemies in Pakistan, in particular within the Pakistan Army, and (iv) there are therefore grounds to suspect that the Pakistan Army was or may have been implicated in the assassination. At least in the eyes of English law, however, that is very different from the conclusion that “the ISI was involved in this killing” which the Defendant claims the Report contains. Among other things, it is important to note that, while the Report highlights the involvement of Waqar and his brother in the incident and its aftermath, the Report is careful to say that (i) it is unclear whether Waqar had any relationship with the ISI before the date of the murder and (ii) transnational roles in the assassination merely “cannot be ruled out”.