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IHC adjourns hearing Imran’s plea challenging Toshakhana jail sentence till Monday after ECP lawyer’s no-show
The Islamabad High Court (IHC) on Friday once again adjourned the hearing of a case pertaining to the suspension of a three-year jail term of former premier Imran Khan — currently incarcerated in Attock Jail — in the Toshakhana case.
Today, Advocate Amjad Pervaiz, the Election Commission of Pakistan’s (ECP’s) lawyer, was expected to conclude his arguments. However, he failed to appear due to being “extremely unwell” — as stated by a member of his team — following which the IHC adjourned the hearing till August 28 (Monday).
On August 5, a trial court in Islamabad convicted the PTI chief in the case filed by the Election Commission of Pakistan (ECP) that involved concealing details of state gifts and jailed him for three years. The verdict meant he was disqualified from contesting general elections for five years.
Imran had subsequently filed an appeal in 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 ago, Imran’s counsel Latif Khosa had argued before an IHC division bench, focusing on three aspects: the release of Imran owing to a short sentence, jurisdictional defects and improper authorisation by the ECP. Subsequently, Khosa, Salman Akram Raja and Barrister Ali Gohar completed their arguments from Imran’s side.
However, the ECP lawyer had argued against the suspension of the sentence, asserting that the superior courts could suspend the sentence of those condemned prisoners who have at least completed six months imprisonment.
Meanwhile, the Supreme Court had reiterated its decision to halt proceedings on Imran’s plea until the IHC’s decision. The apex court also took everyone by surprise as it ordered Attorney-General for Pakistan (AGP) Mansoor Usman Awan to furnish an official report about the living conditions of Imran by August 28.
Today, a division bench comprising IHC Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahangiri presided over the hearing.
Khosa, Salman Akram Raja, Babar Awan, Barrister Gohar Khan and Shoaib Shaheen were among Imran’s legal team that appeared in court. Imran’s sisters Aleema Khan and Uzma Khan were present in the courtroom as well.
However, Pervaiz, the ECP lawyer, failed to appear due to being “extremely unwell” and his assistant lawyer appeared instead.
Subsequently, the IHC adjourned the hearing till Monday (August 28).
After the hearing concluded, Khosa, along with other people, got stuck in an elevator at the IHC. His assistant lawyer, Suzane Jahan, protested that “no one is taking action” even after she complained to the administration.
More than half an hour later, the trapped persons were rescued from the elevator safely after collective efforts from lawyers and a rescue team that was specifically called to resolve the issue.
The hearing
At the outset of the hearing, Pervaiz’s assistant lawyer informed the court, “Amjad Pervaiz is extremely unwell, which is why I have appeared.”
At this, Justice Farooq remarked, “A matter of bail is under way. This (failing to appear) is wrong.”
The assistant lawyer then replied that “such a situation can occur with anyone”, to which Khosa responded, “No, this cannot happen with anyone. I was unwell yesterday but I still appeared.”
The cheif justice observed, “These are extremely wrong moves. Arguments have to be presented just for a total of 10 minutes.”
Khosa then said, “He is also a senior lawyer and has the Power of Attorney as well. The election commission’s own lawyers are present.
“We only have to assist. About the rest, you are answerable to God. A man is inside [the jail] for the past 20 days,” he said while addressing the chief justice.
The court then noted that the division bench does not hear cases on Friday but had come to the court only for this case.
Addressing the court, Khosa said, “You can do what you want then. I will not appear in your court. You are not even ready for suspending the sentence.
“Life and death is in God’s hands. They (the ECP) are asking for [another] three days of an incarcerated man’s life,” he added.
The lawyer further said, “For God’s sake, do not make this institution such that your subordinates do not listen to you.”
Here, Justice Farooq observed, “What the trial court did was wrong.”
Khosa argued, “The Supreme Court has said that there are defects in this case. You can make a decision as you want.”
The chief justice noted, “We will adjourn this case till Monday and even if no one appears, we will decide on it [that day].”
Imran’s lawyer asked, “Then, will you keep PTI chairman behind the bars for another three days?”
Khosa then left the rostrum in protest, saying, ““Then we will not appear before the court. You can do what you want.”
Subsequently, the IHC accepted the ECP lawyer’s plea and adjourned the hearing till Monday (Auguts 28).
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.
Toshakhana case
The case, filed by lawmakers of the then coalition government, was based on a criminal complaint filed by the ECP.
The case alleged that Imran had “deliberately concealed” details of the gifts he retained from the Toshaskhana — a repository where presents handed to government officials from foreign officials are kept — during his time as the prime minister and proceeds from their reported sales.
According to Toshakhana rules, gifts/presents and other such materials received by persons to whom these rules apply shall be reported to the Cabinet Division.
Imran has faced a number of legal issues over his retention of gifts. The issue also led to his disqualification by the ECP.
On Oct 21, 2022, the ECP concluded that the former premier had indeed made “false statements and incorrect declarations” regarding the gifts.
The watchdog’s order had said Imran stood disqualified under Article 63(1)(p) of the Constitution.
Subsequently, the ECP had approached the Islamabad sessions court with a copy of the complaint, seeking proceedings against Imran under criminal law for allegedly misleading officials about the gifts he received from foreign dignitaries during his tenure as the prime minister.
On May 10, Imran was indicted in the case. However, on July 4, the Islamabad High Court (IHC) had stayed the proceeding and directed ADSJ Dilawar to re-examine the matter in seven days, keeping in view eight legal questions he framed to decide the maintainability of the Toshakhana reference.
The questions had included whether the complaint was filed on behalf of the ECP by a duly authorised person, whether the ECP’s decision of Oct 21, 2022, was a valid authorisation to any officer of ECP to file a complaint, and whether the question of authorisation was a question of fact and evidence and could be ratified subsequently during the course of proceedings.
Finally, on July 9, ADSJ Dilawar while ruling that the reference was maintainable, revived the stalled proceedings and summoned the witnesses for testimony.
A session court had last month declared that the ECP reference against the PTI chief was maintainable. The decision was subsequently challenged in the IHC.
On August 2, Judge Dilawar had ruled that Imran’s legal team failed to prove the relevance of his witnesses. He had warned the defence counsel to conclude the arguments, or else the court would reserve an order.
The IHC then gave a short breather to Imran, asking the judge to re-examine the jurisdiction and any procedure lapse in the filing of the complaint by the ECP. However, a day later, the trial court convicted the ex-premier.
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