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IHC reserves verdict on Imran’s plea challenging Toshakhana conviction
The Islamabad High Court (IHC) on Monday reserved its verdict on PTI Chairman Imran Khan’s plea seeking the suspension of a three-year jail term sentenced to the ex-premier in the Toshakhana case.
It said the verdict will be announced at 11am tomorrow.
On August 5, a trial court in Islamabad had convicted the PTI chief in the case filed by the 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 Supreme Court (SC) against the IHC’s decision to remand the case back to the trial court judge who had convicted him.
Last week, however, the SC had acknowledged “procedural defects” in Imran’s conviction but had opted to wait for the IHC decision on Imran’s plea. The court’s observations had drawn the ire of the Pakistan Bar Council, which said there should be no “interference” in matters pending before the subordinate judiciary.
At the previous IHC hearing, the court had adjourned the case due to the absence of the ECP lawyer, Advocate Amjad Pervaiz. It had led Imran’s counsel, Advocate Latif Khosa, to express his dissatisfaction with the court, saying he would not appear at the next hearing.
Subsequently, IHC Chief Justice Aamer Farooq, who was presiding over the hearing and in whom the PTI chief has expressed a lack of confidence, had asserted he would decide on the matter today “even if no one appears”.
Today, a division bench comprising Justice Farooq and Justice Tariq Mehmood Jahangiri presided over the hearing while both parties’ counsels, Khosa and Pervaiz, were also present in the courtroom.
During his arguments, the ECP lawyer urged the IHC to issue a notice to the state to make it a respondent in the case as, he said, the law made it necessary.
When Pervaiz concluded his arguments, Khosa said he did not have any objections to the ECP counsel’s plea but also highlighted that it “should not be done” at this stage of the case.
Meanwhile, while the hearing was under way, the Islamabad Police said it was “always ready to deal with any untoward incident during the hearing of important cases” at the IHC.
It requested the public to “cooperate with the policemen on duty and to identify themselves”.
The hearing
At the outset of the hearing, Justice Farooq stated the court would decide on the PTI chief’s plea today.
Then, the ECP lawyer began presenting his arguments for opposing the suspension of Imran’s jail sentence.
Pervaiz referred to various laws and past court verdicts, including Indian National Congress’ Rahul Gandhi’s plea seeking suspension of his two-year sentence, which the lawyer said was rejected.
“I am not opposing the appeal to suspend the sentence based on a short sentence. I am only saying that the appeal cannot be proceeded with without issuing a notice to the government,” the ECP lawyer argued.
He added that according to the law, it was necessary to issue a notice to the government. “In all such cases, attendance of three lawyers is marked — defending counsel, prosecution counsel and the state counsel,” Pervaiz asserted.
When the ECP lawyer informed the court that the state was not made a party in Imran’s plea, the chief justice noted that the case pertained to a “private complaint” filed by the ECP against the PTI chief.
“No mention of the state appeared in the trial court. Why is it necessary to make it a respondent here?” Justice Farooq asked.
He went on to state that a public prosecutor is not present during the hearing of cases filed by the National Accountability Bureau (NAB). To this, Pervaiz responded, “The NAB’s own prosecutors are present whose arguments are heard.”
The ECP lawyer argued that there was “no mention of a public prosecutor in the NAB laws” and instead the Code of Criminal Procedure (CrPC) mentions it.
He then urged the court to issue a notice to the state to make it a respondent in the case, saying, “The word ‘complainant’ is not there at all in the law. The word ‘state’ is used.”
Pervaiz then began presenting his arguments on the matter of the session court holding a direct hearing of the Toshakhana case.
“The trial proceedings of any crime committed under the Pakistan Penal Code have to be conducted under the CrPC,” the ECP counsel argued, adding that no complaint pertaining to corruption and corrupt practices was heard by a judicial magistrate in the past 50 years or so.
“A magistrate does not even have the authority to pass an order on any complaint. A magistrate can only pass an order on a complaint that falls within his jurisdiction.”
Here, the chief justice asked him, “Are you saying that even if there was a mistake in filing the complaint, it will not have an effect on the trial?”
The ECP lawyer answered, “Yes, this is my point that the trial has to be held by a court, whether it has been filed under a magistrate or directly. This is not even a matter of court jurisdiction.
“They are saying that the complaint did not come to the session court after being heard by the magistrate [but] the jurisdiction is still the session court’s,” he added, challenging Imran’s counsel to present “one judgment where the complaint arrived in the court after hearing by a magistrate”.
At this point during the hearing, Pervaiz requested the court to grant a 15-minute break in the hearing so he could take medicine, which the IHC allowed.
When the hearing resumed, Pervaiz was present on the rostrum and Khosa, Imran’s counsel, also came there.
“I do not want to interfere in the election commission’s counsel’s arguments. Just want to refer to some [past] verdicts,” he informed the court.
When Khosa noted that the ECP lawyer presented his arguments for an hour at the previous hearing and for two hours today, the latter said, “I will not read any such section which is new.
“The PTI chairman’s counsel has also presented his arguments twice here and once before the Supreme Court. He has made the election commission and the sessions judge villains”, he hit back at Khosa.
Here, addressing Pervaiz, the chief justice directed him not to touch upon that topic and to “continue arguments on the suspension of the sentence” instead.
The ECP counsel then recalled that the defence counsel had objected to the “formal authorisation of the complaint” as according to him, the complaint was not maintainable without it.
He then read out aloud the ECP’s permission notice, which he said was given after the commission’s verdict.
Pervaiz then went on to recall that the ECP verdict stated that Imran was found guilty of corrupt practices and directed that legal action be taken against him.
Here, the chief justice observed, “The election commission said in its verdict that the office shall do whatever was necessary. It did not issue directives to any individual.”
Justice Farooq asked why the ECP’s secretary was to file a complaint when he had not been issued any directives. To this, Pervaiz replied that the secretary had written in the authorisation that the complaint was “being filed in view of the ECP’s verdict”.
At this point during the hearing, the chief justice asked Pervaiz, “Now, on which points are arguments remaining?”. To this, the latter answered that he had yet to present arguments on the matter of the right to defend and on filing the complaint in four months.
“It is being wailed that the trial court judge violated the high court’s order,” the lawyer added, saying he would tell the court the contrary.
When Pervaiz said there was “only one reason for my arguments not concluding today”, Justice Farooq interjected to say, “No no, complete the [arguments] today.”
The ECP lawyer then went on to recall that the affidavit submitted by Khawaja Haris, a member of Imran’s legal team, was presented before the IHC but he could not get a verified copy of the same. He added that he would be the “last person to submit a counter-affidavit” on the matter.
Here, Justice Farooq directed him to conclude his arguments within five to 10 minutes, to which Pervaiz said, “I have kept the judicial point of view before you. The court may review them.”
Recalling that the trial court had declared the witnesses — whom Imran requested to be included in the case — as “irrelevant”, the ECP counsel noted that the case was of “wrongful declaration” of the Toshakhana assets.
The chief justice then asked, “Are the asset details submitted to the election commission public documents?”
Here, the ECP lawyer concluded his arguments.
Following this, Khosa, Imran’s lawyer, said, “I would not wish to add anything to these arguments. I am grateful to Amjad Pervaiz that he completed his arguments.”
Justice Farooq then directed him to “only provide a bit of assistance” with the matter of issuing a notice to the government.
Khosa then responded, “You may issue a notice. There is no issue. We have no objection, although legally, there is no requirement to issue a notice. Neither can it be issued at this stage nor should it be.”
Subsequently, the court reserved its verdict on the PTI chief’s plea to suspend his three-year jail term.
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 Humayun 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 had 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 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. 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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