The Islamabad High Court (IHC) is currently hearing PTI Chairman Imran Khan’s plea seeking the suspension of a three-year jail term awarded to the ex-premier in the Toshakhana case.
On August 5, a trial court in Islamabad had convicted the PTI chief in the case filed by the Election Commission of Pakistan (ECP) that involved concealing details of state gifts and jailed him for three years. The verdict meant he was disqualified from contesting general elections for five years.
Imran had subsequently filed an appeal in the high court against his conviction. He had also approached the Supreme Court (SC) against the IHC’s decision to remand the case back to the trial court judge who had convicted him.
Last week, however, the SC had acknowledged “procedural defects” in Imran’s conviction but had opted to wait for the IHC decision on Imran’s plea. The court’s observations had drawn the ire of the Pakistan Bar Council, which said there should be no “interference” in matters pending before the subordinate judiciary.
At the previous IHC hearing, the court had adjourned the case due to the absence of the ECP lawyer, Advocate Amjad Pervaiz. It had led Imran’s counsel, Advocate Latif Khosa, to express his dissatisfaction with the court, saying he would not appear at the next hearing.
Subsequently, IHC Chief Justice Aamer Farooq, who was presiding over the hearing and in whom the PTI chief has expressed a lack of confidence, had asserted he would decide on the matter today “even if no one appears”.
Today, a division bench comprising Justice Farooq and Justice Tariq Mehmood Jahangiri is presiding over the hearing while both parties’ counsels, Khosa and Pervaiz, are also present in the courtroom.
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The hearing
At the outset of the hearing, Justice Farooq stated the court would decide on the PTI chief’s plea today.
Then, the ECP lawyer began presenting his arguments for opposing the suspension of Imran’s jail sentence.
Pervaiz referred to various laws and past court verdicts, including Indian National Congress’ Rahul Gandhi’s plea seeking suspension of his two-year sentence, which the lawyer said was rejected.
“I am not opposing the appeal to suspend the sentence based on a short sentence. I am only saying that the appeal cannot be proceeded with without issuing a notice to the government,” the ECP lawyer argued.
He added that according to the law, it was necessary to issue a notice to the government. “In all such cases, attendance of three lawyers is marked — defending counsel, prosecution counsel and the state counsel,” Pervaiz asserted.
When the ECP lawyer informed the court that the state was not made a party in Imran’s plea, the chief justice noted that the case pertained to a “private complaint” filed by the ECP against the PTI chief.
“No mention of the state appeared in the trial court. Why is it necessary to make it a respondent here?” Justice Farooq asked.
He went on to state that a public prosecutor is not present during the hearing of cases filed by the National Accountability Bureau (NAB). To this, Pervaiz responded, “The NAB’s own prosecutors are present whose arguments are heard.”
The ECP lawyer argued that there was “no mention of a public prosecutor in the NAB laws” and instead the Code of Criminal Procedure (CrPC) mentions it.
He then urged the court to issue a notice to the state to make it a respondent in the case, saying, “The word ‘complainant’ is not there at all in the law. The word ‘state’ is used.”
Pervaiz then began presenting his arguments on the matter of the session court holding a direct hearing of the Toshakhana case.
“The trial proceedings of any crime committed under the Pakistan Penal Code have to be conducted under the CrPC,” the ECP counsel argued, adding that no complaint pertaining to corruption and corrupt practices was heard by a judicial magistrate in the past 50 years or so.
“A magistrate does not even have the authority to pass an order on any complaint. A magistrate can only pass an order on a complaint that falls within his jurisdiction.”
Here, the chief justice asked him, “Are you saying that even if there was a mistake in filing the complaint, it will not have an effect on the trial?”
The ECP lawyer answered, “Yes, this is my point that the trial has to be held by a court, whether it has been filed under a magistrate or directly. This is not even a matter of court jurisdiction.
“They are saying that the complaint did not come to the session court after being heard by the magistrate [but] the jurisdiction is still the session court’s,” he added, challenging Imran’s counsel to present “one judgment where the complaint arrived in the court after hearing by a magistrate”.
The petition
Imran filed a petition in the IHC — through his lawyers — against the trial court’s August 5 verdict, saying that the said order was “not sustainable” and “liable to be set aside”. The plea named the district election commissioner of Islamabad as the respondent in the case.
It stated that the judgment passed by the trial court judge was “tainted with bias, is a nullity in the eye of the law and is liable to be set aside”.
Explaining the grounds for its request, the plea said that the Aug 5 order was passed “with the pre-disposed mind” of the trial court judge to convict and sentence the appellant “irrespective of the merits of the case”.
It said the order was issued without providing the petitioner with a chance to fight his case and alleged that ADSJ Humayun Dilawar had refused to hear the arguments of Khawaja Haris, Imran’s counsel in the Toshakhana case, on the pretext that he was late — which the plea claimed was because he was filing other applications with the Supreme Court and IHC.
“The impugned judgment was announced despite the fact that before commencement counsel for the appellant was very much in court fully prepared to address arguments after explaining the reasons for the delay in arriving in court, but the trial judge, who throughout the proceedings had been exhibiting his extreme bias towards the appellant and his counsel, and constantly using disparaging remarks against them, even in their absence, was bent on carrying out a well-orchestrated plan […].”
This, the petition said, was a “slap in the face due process and fair trial” and “a gross travesty of justice”.
It further alleged that the Aug 5 judgment was “already written” by the trial court judge, highlighting how the latter only took “30 minutes” to “dictate more than 35 pages” of the judgment.
Moreover, the petition said the verdict was in violation of the IHC’s Aug 4 orders, in which the high court had asked the trial court to “decide afresh” on the PTI chief’s application pertaining to the maintainability of the Toshakhana case.
Referring to the Supreme Court rules, the plea highlighted that “proceedings held by the learned trial court judge culminating in the conviction of the appellant in the instant case are corum non judice without jurisdiction thereby rendering the conviction and sentence of appellant void ab initio nugatory in the eyes of the law”.
It also highlighted that there was not an “iota” of evidence presented by the prosecution regarding the Toshakhana gifts and none of the witnesses provided by the ECP presented evidence in the case.
“The prosecution has not let any evidence whatsoever that the appellant had transferred any asset during any of the relevant financial years without adequate consideration or by revocable transfer.”
The petition subsequently prayed that the trial court verdict be set aside, while also urging the court to declare Imran’s conviction and sentence “illegal and without lawful authority”, and to acquit him of the charges.
Toshakhana case
The case, filed by lawmakers of the then coalition government, was based on a criminal complaint filed by the ECP.
The case alleged that Imran had “deliberately concealed” details of the gifts he retained from the Toshaskhana — a repository where presents handed to government officials from foreign officials are kept — during his time as the prime minister and proceeds from their reported sales.
According to Toshakhana rules, gifts/presents and other such materials received by persons to whom these rules apply shall be reported to the Cabinet Division.
Imran has faced a number of legal issues over his retention of gifts. The issue also led to his disqualification by the ECP.
On Oct 21, 2022, the ECP had concluded that the former premier had indeed made “false statements and incorrect declarations” regarding the gifts.
The watchdog’s order had said Imran stood disqualified under Article 63(1)(p) of the Constitution.
Subsequently, the ECP had approached the Islamabad sessions court with a copy of the complaint, seeking proceedings against Imran under criminal law for allegedly misleading officials about the gifts he received from foreign dignitaries during his tenure as the prime minister.
On May 10, Imran was indicted in the case. However, on July 4, the IHC had stayed the proceeding and directed ADSJ Dilawar to re-examine the matter in seven days, keeping in view eight legal questions he framed to decide the maintainability of the Toshakhana reference.
The questions had included whether the complaint was filed on behalf of the ECP by a duly authorised person, whether the ECP’s decision of Oct 21, 2022, was a valid authorisation to any officer of ECP to file a complaint, and whether the question of authorisation was a question of fact and evidence and could be ratified subsequently during the course of proceedings.
Finally, on July 9, ADSJ Dilawar while ruling that the reference was maintainable, revived the stalled proceedings and summoned the witnesses for testimony. The decision was subsequently challenged in the IHC.
On August 2, Judge Dilawar had ruled that Imran’s legal team failed to prove the relevance of his witnesses. He had warned the defence counsel to conclude the arguments, or else the court would reserve an order.
The IHC then gave a short breather to Imran, asking the judge to re-examine the jurisdiction and any procedure lapse in the filing of the complaint by the ECP. However, a day later, the trial court convicted the ex-premier.
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