A two-member division bench of the Islamabad High Court (IHC) on Wednesday recused itself from hearing an appeal seeking the disqualification of Pakistan Tehreek-i-Insaf (PTI) Chairman Imran Khan after the counsel of the petitioner — a candidate from NA-53 — challenged the constitution of the bench.
Abdul Wahab Baloch of the Justice and Democratic Party Pakistan (JDP), which is led by former chief justice Iftikhar Muhammad Chaudhry, had raised objections to the nomination papers filed by Imran Khan for "concealing" his alleged parentage of Tyrian Jade Khan-White in his nomination papers.
The returning officer (RO) as well as the appellate tribunal in Islamabad had rejected these objections earlier and allowed Khan to contest the general elections in five constituencies, all of which were won by him.
The contention of Advocate Sheikh Ahsanuddin, counsel for Baloch, was that the tribunal as well as the RO had dismissed the objection by saying that only a voter of the constituency could raise an objection against a contesting candidate.
Under the Elections Act 2017, he argued, an opposing candidate could also file objections to the candidacy of a contestant.
According to the counsel, Imran Khan is not sadiq and ameen under Article 62(1)(f) of the Constitution.
Initially the case was fixed before a division bench comprising IHC Justice Shaukat Aziz Siddiqui and Justice Aamer Farooq. However, the IHC chief justice later re-constituted the bench and replaced Justice Siddiqui with Justice Miangul Hassan Aurangzeb.
On Wednesday, advocate Sheikh challenged the re-constitution of bench saying that on July 23, the division bench headed by Justice Siddiqui had passed an effective order and the case was adjourned until August 1.
The petition filed against the constitution of bench states: "As per Court Program (duty roster) issued for July 16, 2018 to July 20, 2018, Honourable Justice Miangul Hassan Aurangzeb was (not available on 20th July, 2018) and for the period from July 23, 2018 till further orders."
Subsequently for July 30, 2018 to August 03, a fresh roster was issued according to which division bench comprising Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb was constituted despite the availability of the senior puisne judge, Justice Siddiqui.
It said that "in media, time and again it has been disseminated that summer vacations of Justice Miangul Hassan Aurangzeb have been cancelled to reconstitute the bench hearing the writ petition against Imran Khan relating to Article 62, 63 of the Constitution. Obviously such impression in the interest of institution could have been dispelled conveniently by allowing court roster for the week commencing from July 23, 2018 onward to continue.”
Advocate Imran Haider Kazmi, another counsel for Baloch, requested the court not to hear the matter since the constitution of their bench has been questioned.
Though expressing displeasure over the arguments, Justice Farooq remarked that since allegations have been hurled against the constitution of bench therefore, he was recusing himself and his fellow judge.
While reading out the order, he also requested the IHC chief justice not to include him or Justice Aurangzeb in the new bench that will hear this case.
Earlier, Dr Babar Awan had appeared on behalf of Imran Khan and opposed the reconstitution of the bench. He had requested that the plea be dismissed.
According to Awan, the petitioner had wanted a "choice" bench for his client, for which there is no provision under the law and that the transfer of a case from one bench to another is the prerogative of only the Supreme Court.
