Mistakes apparently present in trial court’s Toshakhana verdict, CJP observes

Published August 23, 2023
The combo photo shows Justice Jamal Khan Mandokhel (L), CJP Umar Ata Bandial (M) and Justice Mazahar Ali Akbar Naqvi. — SC website
The combo photo shows Justice Jamal Khan Mandokhel (L), CJP Umar Ata Bandial (M) and Justice Mazahar Ali Akbar Naqvi. — SC website

Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday observed that prima facie there were “mistakes” present in a trial court’s verdict convicting former prime minister Imran Khan in the Toshakhana case.

On August 5, a trial court in Islamabad 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, Imran approached the IHC against his conviction and sentence. A day earlier, the high court adjourned the case till tomorrow (Aug 24).

A three-member SC bench, comprising CJP Bandial, Justice Mazahar Ali Akbar Naqvi and Justice Jamal Khan Mandokhail, took up a petition filed by Imran today challenging the IHC’s order of remanding the Toshakhana case to Additional Sessions Judge (ASJ) Humayun Dilawar who convicted the former prime minister.

During the hearing, the top court heard arguments by PTI lawyer Latif Khosa and Election Commission of Pakistan’s (ECP) counsel Amjad Pervaiz.

After hearing both sides, the CJP said, “We will not interfere in the Toshakhana case today … we will look at the IHC hearing tomorrow and then resume the proceedings.”

However, the top judge observed: “Prima facie, there are mistakes in the trial court verdict.”

Later, the bench noted in the written order of today’s hearing that the trial court had proceeded ex-parte in the Toshakhana case proceedings and decided the case without hearing Imran’s side.

It also noted that Imran had expressed the intention to produce four defence witnesses during the proceedings but the request was turned down by the trial court, which concluded that the witnesses were not relevant to the “controversy” pertaining to the matter.

It added that the same was confirmed by the ECP counsel who also “admitted” that the trial court had not decided the matter afresh, in contrast to the IHC’s August 3 order wherein it had remanded the case back to the trial court.

The SC order said that the trial court, in its final decision, had reaffirmed its earlier orders which were set aside by the IHC.

“In this respect, the final judgement of the trial court dated August 5, 2023, prima facie, defies the direction of remand issued by the high court by relying on its earlier point of view that already stands rejected by the high court,” the SC order read.

The hearing

At the outset of the hearing, Imran’s lawyer Latif Khosa said the PTI chief had filed three petitions against IHC orders in the apex court.

He recalled that Imran was elected as a member of the National Assembly from Mianwali during the 2018 elections. “The Election Act tells every member of the NA to submit details of their assets,” the lawyer said, adding that six MNAs had submitted a reference to the speaker seeking the PTI chief’s disqualification.

The MNAs, Khosa continued, had accused Imran of submitting an incorrect declaration of his assets. The speaker had then sent the reference to the Election Commission of Pakistan (ECP) under Section 137 of the Election Act.

Here, Justice Naqvi asked the lawyer to read out the said section of the act, which pertains to the submission of a statement of assets and liabilities.

Continuing his arguments, Khosa contended that the ECP could only conduct an inquiry within 120 days.

“Can one member [of the NA] send a reference against another member?” Justice Naqvi asked, to which the lawyer replied that no one could send a reference and the ECP too could only conduct an inquiry within a fixed time.

“Action can be taken within 120 days after the submission of financial statements,” he highlighted, adding that only the NA speaker could send a reference to the ECP, not a member.

The reference against the PTI chief, Khosa continued, was sent after 120 days.

At that, Justice Mandokhel interjected that the petitioner’s case was against the IHC order and not the legality of the reference against Imran.

“Who can be remanded now that the trial court case is over?” the judge asked. “How will this case impact the main appeal against the conviction?”

In his response, Khosa said the court would have to “rewind the hands of the clock back to the previous position”.

However, the CJP remarked, “A building constructed on faulty foundation cannot be demolished every time.” He also asked if the petitioner’s argument was that the ECP’s complaint in the trial court — filed on Oct 21 — was not maintainable.

“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.

At this, Justice Mandokhel explained that the law states a magistrate would review the complaint and then send it to the sessions court. “In the law, what does the magistrate reviewing [the complaint] mean?” he asked.

For his part, Khosa said the magistrate would decide if the complaint was eligible or not.

Here, the CJP inquired who could register a complaint under the Elections Act, to which the PTI lawyer replied that the complaint could be filed by the ECP.

Khosa further lamented that the ECP secretary had asked the electoral body’s district commissioner to file the complaint against Imran.

“So you are saying that the secretary should not have been declared the ECP,” the CJP said. “The sessions court should have rejected the complaint,” the top judge added.

Meanwhile, Justice Mandokhel opined that the matter could be solved during the IHC hearing on Imran’s petition against his conviction. He also asked: “What was the hurry to give the [sessions court] verdict?”

Subsequently, the CJP asked the PTI lawyer if the petitioner would raise these questions in the high court or if he wanted the SC to highlight them for the IHC.

Khosa replied that Imran’s conviction was announced by a court that did not have the jurisdiction to do so. “This matter can also be raised during the hearing of the appeal in the IHC,” the CJP noted.

At one point, when Khosa raised an objection over the IHC CJ, Justice Bandial asked him to raise an objection to verdicts and not the courts. “Criticism should only be restricted to the decisions … this is the way institutions work.”

He further maintained that no one could be accused of biasedness, asserting that the court would defend all the judges.

The court then called the ECP lawyer to the rostrum. Beginning his arguments, Pervaiz said the trial court had reserved its verdict on all objections raised by the PTI chief.

He also said that Imran had been provided all the chances to defend himself during the case proceedings.

At this, Justice Bandial asked: “Can you see the PTI chairman here? I can’t see the suspect anywhere … is the suspect here in court or is he behind bars?”

“Don’t joke like that,” an irked CJP said. “What opportunities were given to the PTI chief? The trial court, after calling the case thrice, convicted the suspect and sent him to jail … the PTI chairman was not even heard.”

Later, the top judge remarked that as a court of law, the SC didn’t want the case to be sent from one court to the other and decided to wait for the IHC hearing tomorrow. The case was subsequently adjourned till 1pm, Thursday.

The petition

Imran’s appeal, instituted through Advocate Khawaja Haris Ahmed, 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 judgement 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 based on 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.

Toshakhana case

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 ECP.

Imran has faced several 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 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.

Police allowed to interrogate Imran in Jinnah House case

Separately, a Lahore anti-terrorism court (ATC) granted police permission today to interrogate and arrest Imran Khan in a case pertaining to vandalism at Jinnah House in the city on May 9.

The PTI chief’s arrest from the IHC premises on May 9 in a graft case had resulted in protests across the country, during which several civil and military properties and installations, including Lahore’s Jinnah House, were vandalised. Action has been initiated against those accused of being involved in the attacks, including Imran.

Today, the Lahore deputy inspector general (Investigation) submitted an application to ATC judge Ejaz Ahmad Buttar, stating that Imran was presently confined in Attock Jail and “the interrogation of accused leading to his subsequent arrest is required” in the Jinnah House attack case.

“It is prayed to grant permission to interrogate and arrest the accused person confined in Attock Jail,” the application, a copy of which is available with Dawn.com, read.

The court accepted the police request, allowing it to arrest and interrogate Imran.



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