Apparently there were shortcomings in trial court decision but Apex Court would wait for IHC decision on appeal in Toshakhana case: CJP Umar Ata Bandial
Says trial court judge announced the verdict against Imran Khan in haste
Says there were prima facie serious defects in the trial court’s judgment in the case
ISLAMABAD ( Web News )
The Supreme Court of Pakistan on Wednesday, while hearing appeals filed by the Pakistan Tehreek-e-Insaf Chairman and former prime minister Imran Khan in the Toshakhana case, said apparently there were shortcomings in the trial court decision but the apex court would wait for the Islamabad High Court decision on the appeal today (Thursday). Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial observed that the trial court judge announced the verdict against former prime minister Imran Khan in the Toshakhana case in haste. Chief Justice observed that there were prima facie serious defects in the trial court’s judgment in the case.
The chief justice’s observation came as a three-judge special bench of the Supreme Court (SC) – comprising the CJP Umar Ata Bandial, Justice Mazahar Ali Akbar Naqvi and Justice Jamal Khan Mandokhail – heard the Pakistan Tehreek-e-Insaf (PTI) chief’s pleas filed against his conviction in the Toshakhana case by the trial court. The lead counsel of Imran Khan, Khawaja Haris Ahmad did not appear before the court on Wednesday.
During Wednesday’s hearing, the apex court raised questions on the trial court’s judgment awarding a three-year sentence to Imran Khan in the case.
The three-judge bench asked Islamabad High Court (IHC) to consider the former premier’s contentions about the trial court’s jurisdiction, maintainability of the complaint and transfer of judges etc. today (Thursday). The bench adjourned the hearing of the case till today (Thursday) at 2:00 PM. The court has issued notices to Election Commission of Pakistan ECP lawyer Muhammad Amjad Parvez and directed them to reply the questions of the bench.
CJP Umar Ata Bandial said the court would wait for IHC’s order before ‘interfering’ in the matter. However, the top judge observed: “Prima facie, there are shortcomings in the trial court verdict.”
A trial court in Islamabad on Aug 5 found the PTI chief guilty of ‘corrupt practices’ in a case pertaining to concealing details of state gifts and sentenced him to three years in prison. The verdict also means that he stood disqualified from contesting general elections for five years.
Subsequently, the PTI chief approached the IHC against the decision. A day earlier, the high court had adjourned the case till Aug 24.
PTI lawyer Sardar Muhammad Latif Khan Khosa and Election Commission of Pakistan’s (ECP) counsel Muhammad Amjad Pervaiz advanced arguments during the proceedings.
After hearing both sides, the CJP remarked, “Court will not interfere in the Toshakhana case today … we will look at the IHC hearing tomorrow (Thursday) and then resume the proceedings.” The CJP observed that the trial court judge had announced the verdict in the Toshakhana case in haste.
At the outset of the hearing, PTI chief’s lawyer Latif Khosa said his client had filed three petitions against the IHC orders in the apex court.
Advocate Khosa prayed to the court that his client had been accused of misdeclaration of his assets. On the query of Justice Naqvi, Khosa read Section 137 and sub-section 4 of the Election Act, 2017.
Justice Naqvi inquired did the members of the assembly have the authority to send a reference against their fellow members and under which law could assembly members send references against other parliamentarians.
To this, Khosa replied that members of the assembly did not have the authority to send the reference. He said only the NA speaker had this authority.
He further told the court that the electoral body could only take action against an MNA within a fixed time of 120 days after the submission of financial statements.
“The present case is not whether a reference could have been sent against the PTI chairman or not,” Justice Mandokhel said. “You have challenged the decision of the Islamabad High Court.”
CJP Bandial also told Khosa that the issue of the case’s jurisdiction had been challenged.
“You yourself are saying that the case is pending in another court,” the CJP said. “Our stance is that the Toshakhana complaint should have first been sent to the magistrate,” Khosa pointed out.
“According to you, the magistrate conducts the initial inquiry and then the sessions court holds the trial,” the chief justice asked.
Justice Mandokhel explained that the law states a magistrate would review the complaint and then send it to the sessions court.
After hearing arguments from Khosa and Amjad Pervaiz, the CJP remarked, “We will not interfere in the Toshakhana case today. We will look at the IHC hearing tomorrow and resume the hearing.”
Amjad Pervaiz said the trial court had given three chances to the suspect before announcing the decision.
Justice Naqvi inquired as to how the trial court decided the Toshakhana case without giving the right of defense, adding what was the haste in announcing the Toshakhana case verdict.
After hearing arguments from Khosa and ECP counsel Amjad Pervaiz, the CJP Bandial remarked, “We will not interfere in the Toshakhana case today and we will look at the IHC hearing tomorrow and resume the hearing.”
Imran Khan’s appeal, instituted through Advocate Khawaja Haris Ahmad, requests the apex court to suspend the proceedings before the trial court hearing the Toshakhana case.
The appeal contended that IHC Chief Justice Aamer Farooq, while remanding the case to the trial judge, misconstrued the submission made on behalf of the counsel to remand the case to any trial judge other than ASJ Humayun Dilawar.
“Yet the high court remanded the case back to the trial court without affording the counsel to separately submit arguments on merits regarding the application for the transfer of the case.
“Moreover, the high court also erred in law while remanding the case regarding challenge to the jurisdiction of ASJ to proceed with the complaint on merits for the decision afresh on the grounds that the decisions earlier rendered by the trial court was ‘cursory and shoddy’ since it did not address the essential arguments of the petitioner’s counsel,” the appeal argued.
It added: “The manner in which the high court passed the judgment was in breach of the fundamental rights of the petitioner since the record showed the high court order was not passed with due application of the mind.
The petition also sought transfer of the case on the basis of alleged bias; primarily, on the grounds that the charge was framed against the petitioner in haste and improper fashion and also the contentions of the petitioner in various applications have not been decided correctly.
Meanwhile, Imran, through his lawyer, filed a fresh petition in the SC earlier in the morning seeking the transfer of all cases in which he is involved before the IHC to the high courts in Lahore or Peshawar. The petitioner claimed that the IHC CJ was biased against him and was trying to keep him behind bars to prevent him from contesting the upcoming general elections.
The case, filed by ruling party lawmakers, is based on a criminal complaint filed by the ECP.
The case alleges 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 Aug 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 gave a short breather to Imran on Aug 5, 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.