• IHC distinguishes between ‘conviction’ and ‘sentence’, holds that former can’t be overturned under Section 426
• Petition challenging cipher trial to be taken up today
• PTI chairman Gohar asks SC to provide ‘level playing field’

ISLAMABAD: The Islam­abad High Court (IHC) on Thursday dismi­ssed a petition seeking suspension of PTI founder Imran Khan’s conviction in the Tosha­khana reference, diminishing his chances of contesting the Feb 8 elections.

In a related development, the court summoned the attorney general on Mr Khan’s petition challenging media curbs and in-camera proceedings of the cipher case.

Separately, PTI Chair­man Gohar Ali Khan approached the Supreme Court on Thursday, seeking a level playing field for the party in the upcoming polls.

Mr Khan was convicted in the Toshakhana case on Aug 5, and sentenced to three years’ imprisonment. On Aug 28, the IHC suspended his sentence. However, a division bench of IHC comprising Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahangiri on Thursday rejected Mr Khan’s petition seeking suspension of his conviction.

Mr Khan had moved an application to modify the order of suspending his sentence and sought to suspend the conviction in order to enable him to contest the election.

His counsel Sardar Latif Khosa said the trial court’s verdict should be suspended under Section 426 of CrPC because the Election Commi­ssion of Pakistan (ECP) had, on Aug 8, issued a notification to disqualify Mr Khan that infringed upon his constitutional rights.

He pointed out that in the case of Makhdoom Javed Hashmi, the Supreme Court had observed that the conviction could be suspended.

But the ECP counsel argued that IHC had already suspended the sentence and seeking the relief of suspending the conviction before the division bench is an “afterthought”.

He pointed out that Mr Khan’s counsel did not raise this issue while seeking suspension of the sentence earlier and his disqualification notification was in the field, which was also in the knowledge of the applicant, and yet no request for the modification was made. He said the sole emphasis by Mr Khan’s counsel was on the fact that it is a short sentence.

The bench noted that Mr Khan’s counsel was seeking suspension of the sentence and “a verbal request for suspension of the order/judgement was also made and that this Court had omitted to pass the order on the same inadvertently”.

In order to proceed with the request to modify the Aug 28 order and suspend the conviction, the bench observed, it should be seen whether the court had jurisdiction under Section 426 of CrPC to suspend the judgement.

Examining the dictum laid down by superior courts, the be­n­ch reproduced SC’s decision in the Abdul Kabir case which said “the appellate court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means pro­ving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial”.

As per this order, “the suspension of sentence is only a concession to an accused under section 426, but it does not mean that the conviction is erased”.

The bench said “the judgement shows that the Supreme Court of Pakistan has categorically given the findings that conviction cannot be suspended”.

Discussing Mr Khan’s disqualification, the court observed that the ex-PM had already challenged it before the LHC and the matter was pending there.

The IHC concluded that the petitioner’s lawyer had failed to mention “extraordinary or exceptional circumstances” for suspending the conviction.

Cipher case

A separate IHC bench comprising Justice Miangul Hassan Aurangzeb issued notice to Attorney General for Pakistan Mansoor Usman Awan and the FIA’s director general on Mr Khan’s petition seeking to set aside the trial court’s order on media censorship and in-camera proceedings of the cipher case. Mr Khan also urged the court to stop his trial in the case.

Mr Khan’s counsel Salman Akram Raja argued that Special Court Judge Abual Hasnat Mohammad Zulqarnain of Special Court had barred the media from reporting what was happening in the courtroom on the pretext that it would adversely affect Pakistan’s relations with other countries.

He said that even family members of Mr Khan and Shah Meh­mood Qureshi, the other accused, were given only co­n­d­i­tional permission to witness the proceedings. They have been asked not to disclose anything about the proceedings to the media and war­ned of action under the Official Se­c­r­ets Act for non-compliance with his direction. The counsel re­quested the court to issue a stay order aga­inst the trial.

Justice Aurangzeb remarked that he would issue an appropriate order after hearing the AGP. The hearing was adjourned to Friday (today).

Level playing field

Earlier, PTI Chairman Gohar Ali Khan approached the Sup­r­eme Court seeking level playing field in the polls. He said PTI sho­uld be allowed to contest elections without any discrimination.

The request was made in a petition filed through Advocate Shoaib Shaheen, which names as respondent the federation, ECP, chief secretaries of KP, Punjab, Sindh and Balochistan.

The PTI on Dec 19 approached the ECP, but it failed to issue any order for ensuring transparency and fairness of the elections.

This situation is damaging the integrity of the country, the petition argued. Feeling aggrieved, the petitioner then filed a plea before the LHC, Rawalpindi bench, which is yet to hear the case.

It is the responsibility of ECP to hold fair elections, the petition said. But, it added, the district managements are not treating PTI on a par with other parties. Even after the issuance of the election schedule, PTI was not being allowed to hold workers’ conventions, corner meetings or any such political gatherings, the petition alleged.

Besides, FIRs are being registered due to political activities, raids being conducted on the ho­u­­­ses of PTI leaders and workers, and orders under Section 3 of MPO are being passed, the petition alleged. It said such acts were illegal and tyrannical, adding these “atr­­o­cities” were being carried out in violation of the Constitution, Elections Act, 2017 and most importantly, against the fun­damental rights of the citizens.

Nasir Iqbal also contributed to this report

Published in Dawn, December 22nd, 2023