ISLAMABAD: The PTI requested the Supreme Court on Saturday to allow withdrawal of an appeal from the Islamabad High Court against the disqualification of former party chief Imran Khan in the Toshakhana reference since the Lahore High Court is also seized with a similar litigation.

Moved by senior counsel Barrister Ali Zafar on behalf of the incarcerated ex-premier, the PTI petition requested the top court to accept the plea and set aside the IHC decision to continue hearing the appeal against Mr Khan’s disqualification by the Election Commission of Pakistan (ECP).

If the apex court chose not to intervene in the matter, then as an alternative it should invoke Article 186-A of the Constitution and order transfer of the appeal from the IHC to the LHC where a full bench, comprising five judges, was already adjudicating upon the matter, it added.

The ECP had on Oct 21, 2022 disqualified Imran Khan in the Toshakhana reference under Article 63(1)(p) for making false statements and incorrect declaration. As a consequence, he ceases to be a member of the National Assembly, as well as chairman of the PTI under the Elections Act 2017.

Wants high court barred from hearing disqualification case of Imran

On Dec 16, 2023, a single-member judge of the IHC had rejected a similar plea by the petitioner seeking the withdrawal of the appeal and insisted on hearing the petition itself with a directive to apply for consolidation of two petitions.

The reason given by IHC for not allowing withdrawal of the case was that, when the respondents have acquired rights, it would be improper to allow withdrawal of the case.

The petition contended that no rights had been acquired in this case by the respondents nor the withdrawal of the case would affect any “so-called” rights.

On the question of why a similar plea was filed in the LHC, the petition explained that during the pendency of the case in the IHC, one Muhammad Jabir Abbas Khan filed a petition in the LHC calling upon the court to consider and decide all constitutional, legal and factual issues relevant to and arising out in the matter. These constitutional, legal and factual issues are the same as in the petition before the IHC.

Now the PTI pleaded before the Supreme Court to allow withdrawal of the appeal from the IHC since this was the right of the party; besides, no court can insist that the case should only be heard by it.

“The only exception is where the respondents have acquired rights by virtue of filing of the case and the withdrawal would adversely affect such rights which is not at all the case here in the present,” the petition said, adding that the appellant was aggrieved by the ECP’s Oct 21, 2022 order which had disqualified Imran Khan under Article 63(1)(p) of the Constitution and de-seated him from NA-95 (Mianwali-I).

“Thus no rights have been or can be created in favour of ECP or the other respondents who initiated the complaint against the appellant by virtue of filing of this case; besides, the withdrawal of the case will also not affect any of their rights,” the petition said.

It argued that the mere fact that adjudication on merits before the IHC had commenced did not stop the case being withdrawn, adding that the other reason given in the IHC order was that the “forum shopping” had been deprecated.

“The concept of forum shopping has been misunderstood by the single judge of the IHC and, therefore, it was not applicable in the case at hand. To the contrary, it has been accepted that both the IHC and the LHC have concurrent jurisdictions.

“The concept of forum shopping is derived from the US where it is a legitimate exercise of right by a litigant to seek a jurisdiction/state for litigation which has the best most expeditious and effective relief available,” the petition contended.

Published in Dawn, January 7th, 2024