• Bench regrets how trial court defied high court’s directions in Toshakhana case; chooses to wait for IHC decision today
• ECP counsel admits veracity of ex-PM’s claims
• PTI chairman accuses IHC chief justice of bias

ISLAMABAD: The Supreme Court on Wed­nesday acknowledged “procedural defects” in the Aug 5 conviction of PTI Chairman Imran Khan in the Toshakhana reference by a trial court, but opted to wait for the Islamabad High Court’s (IHC) decision on a plea seeking suspension of the three-year sentence to the former prime minister.

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

The IHC is set to take up the matter on Thursday morning.

The apex court’s observation came during the hearing of Imran Khan’s challenge to the IHC’s Aug 3 order of remanding the case back to ASJ Humayun Dilawar, who sentenced Mr Khan to three-year simple imprisonment.

The SC bench consisting of CJP, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Jamal Khan Mandokhel noted that when the Toshakhana case was taken up, the trial court called the respondents (Imran Khan side) for a number of times. Since neither the petitioner nor any of his authorised representatives were available, the trial court chose to commence hearing ex parte and awarded three-year sentence to Mr Khan.

In its order, the apex court noted that while recording his statement before the trial court under Section 342 of CrPC, Imran Khan had expressed his intention of producing defence witness, but the trial court on Aug 2 turned down the request, saying the witness was not relevant to the controversy.

When Amjad Pervez, the counsel who represented Election Commission of Pakistan (ECP) before the trial court as well as the IHC, was asked whether the points raised by petitioner’s counsel Sardar Latif Khosa were correct, the counsel candidly acknowledged the veracity of the petitioner’s claims.

The SC regretted that the trial court through its judgement had defied the IHC’s directions that it must first determine the question of jurisdiction as well as the maintainability of the case. The IHC’s directions deserved consideration by the trial court, the SC order said, adding the court was also told that an appeal was pending before the high court since Aug 8, which now has been fixed for Aug 24 along with a request for the suspension of the sentence.

In view of the issues highlighted like the jurisdiction issues, maintainability of the complaint before the trial court and compliance to the due process requirement, “we consider that the high court was the first court which should hear and decide the matter”.

‘Out of respect’

The petitioner was behind bars since Aug 5 and his plea seeking suspension of the sentence was pending before the high court on Thursday, therefore “out of respect to the high court, we will wait for the decision in the matter”, the CJP observed while dictating the order.

During the hearing, Justice Mandokhel wondered why the petitioner was wasting one right of appeal before the high court by directly approaching the apex court, but Mr Khosa retorted that he was ready to lose this right.

The points being raised by the counsel before the court should have been raised at the appeal stage, observed Justice Mandokhel.

“Let’s talk about the judgement and not the judges, since the apex court is here to correct any loophole in the decision,” the CJP observed.

At this, Mr Khosa said as lawyers they had shed blood for the cause of the independence of judiciary — a struggle also acknowledged by the CJP with the observation that “you were with us and we were witness to it”.

When ECP’s counsel said the petitioner was not remedy less and could have filed appeal, the CJP regretted by asking whether this was his approach knowing that the petitioner was not available then also recalling that the trial court had decided the matter then and there and sent the petitioner to jail the same day without hearing him first or providing the opportunity to hear the witness produced by Imran Khan.

Justice Mandokhel observed that the judgement should not only be done but also seen to be done.

Allegation against IHC CJ

In a separate development, Imran Khan approached the Supreme Court levelling allegations that he had more than sufficient “incontrovertible” evidence to establish “deep and settled bias” of the chief justice of IHC.

The IHC chief justice is allegedly endeavouring to do everything to keep him behind bars with intent that he be unable to contest the forthcoming elections and thus be ousted from politics, the petition alleged, moved through Mr Khosa,

The IHC’s chief justice had done his best to achieve this objective by time and again denying rightful and well-deserved rights and privileges to the grave detriment and prejudice to the petitioner, Mr Khan alleged.

In seeking his conviction the IHC’s CJ allegedly found a ready and willing instrument in ASJ Dilawar who also despises the petitioner, the petition alleged.

The petition urged the Supreme Court to transfer all cases, investigation, inquires, trials in which the petitioner was a party/respondent/accused from the IHC to the Lahore High Court or the Peshawar High Court.

Published in Dawn, August 24th, 2023