ISLAMABAD: The Supreme Court on Wednesday disregarded a request to immediately fix and hear an appeal seeking to set aside the conviction of PTI chief Imran Khan in the Toshakhana case.

Senior counsel Sardar Shahbaz Khosa had made a verbal request before a two-judge Supreme Court bench, but was told that since his appeal cannot be heard by a bench consisting of fewer than three judges, it cannot be taken up immediately because most of the judges are away from Islamabad due to winter vacation.

The bench consists of acting Chief Justice Sardar Tariq Masood and Justice Athar Minallah.

The appeal was filed through senior counsel Sardar Latif Khosa and his son Sardar Shahbaz Khosa under Article 185 of the Constitution. They challenged the Dec 11 Islamabad High Court (IHC) decision, but the main plea in the appeal was to overturn the Aug 5 conviction by Additional Sessions Judge (West), Islamabad, for illegally selling state gifts.

Acting CJ says appeal cannot be heard this week since most judges are away on winter vacation

Justice Athar Minallah also reminded the counsel that even if the sentence awarded by the trial court was suspended by the apex court, the conviction will not be erased. “The appeal before us requests that the court not only suspend the sentence but also the conviction.

“There is no such precedence in judicial history where the conviction also goes away with the suspension of the sentence,” Justice Minallah emphasised.

The counsel stated, however, that “aspirations of the entire nation rest with this case” since the founder of the PTI had been disqualified for three years.

Justice Masood explained to the counsel that the two-judge bench cannot even grant an interim relief to the petitioner since their earlier appeal against the conviction was heard by a division bench of the high court.

“Maybe the points raised by the petition in the appeal are so important that they require interpretation by a larger bench.

“Therefore, the counsel should wait until Chief Justice of Pakistan Qazi Faez Isa returns home next week,” observed Justice Masood.

When the counsel insisted that judges should be called back for constitution of a bench for early hearing of the case, Justice Masood reminded him that judges were not available in Islamabad.

In his appeal, the petitioner explained that an application was moved before the Islamabad High Court requesting the suspension of the three-year sentence with the main appeal, which came up for hearing before the IHC on Aug 28.

The appeal argued that under Section 561A, a high court enjoyed inherent powers to rectify its orders to do “real and substantial justice” to prevent any abuse of the process of justice.

The appeal contended that injustice had been caused to the petitioner as he had been disqualified by the Election Commission of Pakistan (ECP) and barred from contesting elections in consequence of the Aug 5 conviction by the trial court.

The petition contended that the sentence was challenged by the petitioner since it “suffered from jurisdictional defect” in the complaint filed by an “unauthorised person” as well as for being a time-barred complaint.

On Aug 8, the ECP had issued a notification to disqualify the appellant under Article 62(1)(f) of the Constitution, without even giving the petition an opportunity of being heard, the petitioner recalled.

Under the recent amendments in the Election Act 2017, the period of disqualification under Article 62(1)(f) of the Constitution has been reduced to five years from life term.

Had the high court suspended the order instead of only the sentence, this abuse could have been prevented, the appeal contended.

The petition observed that the ECP notification was never communicated to the petitioner, who at that time was behind bars.

Once the petitioner got to know of his disqualification, he submitted another petition to the IHC for rectification of its order so that the conviction awarded by Additional Sessions Judge is suspended.

Published in Dawn, December 28th, 2023