The Islamabad High Court (IHC) on Thursday adjourned hearing on the appeal filed by former premier Imran Khan — currently incarcerated in Attock Jail — against his conviction and sentence in the Toshakhana case till Friday.

On August 5, a trial court in Islamabad had found the PTI chief guilty of “corrupt practices” in a case pertaining to concealing details of state gifts and sentenced him to three years in prison. The verdict means that he stands disqualified from contesting general elections for five years.

Imran had subsequently approached the high court against his conviction. He had also approached the apex court against the IHC’s decision to remand the case back to the trial court judge who had convicted him.

A day earlier, the Supreme Court had acknowledged “procedural defects” in Imran’s conviction by the trial court, but had opted to wait for the IHC’s decision on the PTI chief’s plea seeking suspension of the three-year sentence.

“Prima facie the decision by the additional sessions judge (ASJ) contains defects, but we will not intervene at this stage; rather [we will] wait for the outcome of the high court decision,” Chief Justice of Pakistan (CJP) Umar Ata Bandial observed during yesterday’s hearing before adjourning the proceedings to 2pm this afternoon.

As the hearing was still under way at the IHC, the top court adjourned hearings until the high court reaches a decision on the petition.

Speaking to the media before the hearing, Barrister Gohar Ali Khan — one of Imran’s lawyers — addressed reports regarding the alleged departure of senior counsel Khawaja Haris from the case.

“He (Haris) has not left the case. Additional counsels come and go … if an additional counsel comes it does not mean he has separated himself from the case,” he said.

In response to another question, Gohar said that Latif Khosa would be representing the ex-premier but also dispelled rumours that Haris had left after having issues with “discipline”.

“Khawaja sahib is a very good counsel and we respect his expertise,” he said.

Haris was not present in Imran’s legal team when the hearing began under IHC CJ Aamer Farooq and Justice Tariq Mehmood Jahangiri.

Advocates Salman Akram Raja, Latif Khosa, Babar Awan, Sher Afzal Marwat, Shoaib Shaheen, Barrister Ali Zafar and Barrister Ali Gohar apart from two dozen lawyers appeared on behalf of the PTI chief in the court.

The election commission was represented by Amjad Pervaiz.

The hearing

At the outset of the hearing today, Imran’s counsel began his arguments.

Khosa contended that there were three grounds pertaining to the suspension of a sentence. “One is a short sentence,” he said. “The second is about the jurisdiction of the court.”

Khosa maintained that a sessions court did not have the jurisdiction to hear ECP’s appeal. “It should have sorted out the jurisdiction problem first.”

He said that according to the definition of the election commission, the body comprises the ECP chief and its members. “According to the law, the ECP has the right to let any of its employees file a complaint.”

“In this case, the election commission secretary authorises the district election commission,” Khosa said. “There is no authorisation by the commission in this case.”

He reiterated that the case was authorised by the election commission secretary. “The authorisation by the election commission bears the signatures of the ECP secretary.”

He went on to say that the sessions court announced the verdict without deciding the matter related to the jurisdiction and authorisation.

Khosa argued the trial court even overlooked the high court’s order and that the trial court’s decision had a lot of mistakes.

“IHC accepted our appeal in the face of the trial court order,” he said. “The high court had sent the case back to the trial court for a decision.”

Khosa highlighted that the high court ordered the trial court to answer the questions raised by the defence in its decision. “The trial court even ignored the orders of the high court,” he said, arguing that a sessions judge cannot hear the ECP’s appeal.

Khosa then spoke about various Supreme Court decisions used as a precedent in this regard.

“The complaint will first go to the magistrate and then the magistrate will forward it to the sessions court.” He clarified that they weren’t even challenging the trial court conducting this trial. The trial session court could do it, just not directly, Khosa added.

“Are the answers to the points raised by the high court present in the final judgment?” Khosa asked. “No, the additional sessions judge completely ignored the directives of the high court.”

He informed the court that they gave a list of witnesses during the defence. “The court declared them unrelated. The list was disregarded without being examined.”

“With all due respect you didn’t even stop the trial court to give a final decision,” Khosa told the IHC. “Whenever a case is under way in the high court, a trial court is always stopped from making a final decision.”

At this point, Justice Jahangiri interjected, saying: “On what grounds did the trial court disregard the list of witnesses?”

Khosa responded by saying that the court thought the witnesses were well-versed in matters concerning income tax. “The court said it was not looking at matters of income tax,” he said. The lawyer also said that the trial court asked why they were calling witnesses in the first place.

“I have another reservation: the complaint should have been finalised within 120 days,” Khosa said. “Chief Justice Aamer Farooq you are trying to say that the complaint was lodged after 120 days?”

“Your order came on August 4. The hearing under way was remanded back.” Khosa informed the judges that on August 5 he challenged the IHC order in the Supreme Court. “There was also an attempt to kidnap Khawaja Haris’ clerk.”

Khosa further said that when Khawaja Haris reached the trial court, he was told by the judge that he should hear the order now.

“At 12:30 the judge started reading the order and announced a three-year sentence,” he said. “At 12:35 we found out that the Lahore police had reached [Zaman Park] to carry out the arrest.”

Imran’s lawyer told the court that he wasn’t even shedding light of the merits of the case as it was not needed.

“Have submitted the references regarding the short sentence, if you say I’ll read it too,” he said. “I have submitted references to judgments on all points.” The arguments of Khosa ended here.

In his statement before the court, Barrister Gohar emphasised the necessity of adhering to the prescribed method outlined in the Code of Criminal Procedure (CrPC) for handling this complaint. He mentioned, “We had also submitted a plea in this regard, but unfortunately, the esteemed judge dismissed it.”

Adding to the discussion, ECP counsel Amjad Parvez pointed out that the PTI chief had been convicted on August 5, as documented. He highlighted, “The decision was subsequently contested in the high court on August 8.”

Parvez elaborated that the defendant had now taken the matter to the top court, challenging the verdict from the IHC. He observed, “This places the IHC’s division bench in a position between the trial court and the apex court, somewhat akin to a sandwich.”

Parvez underlined that the trial bench decisions of the top court were part of the official record and were still actionable. He clarified that the top court’s ruling had neither been reviewed nor contested.

Inquiring about the estimated time needed to conclude arguments in the case, the chief justice of IHC asked Parvez.

The counsel estimated that his arguments would require approximately three hours.

Khosa, however, noted that it was unprecedented for a case related to bail to consume three hours in court.

As the hearing approached its adjournment, the ECP lawyer requested the court to not schedule the hearing for Friday.

Justice Farooq conveyed that the division bench wouldn’t be available the next day, but said, “We will proceed with hearing the case.”

Subsequently, the hearing was adjourned till 11am on Friday.

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 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.