The Islamabad High Court today, accepted the application filed by former Prime Minister Imran Khan, under Section 426 of the Code of Criminal Procedure, seeking suspension of orders passed by Additional Sessions Judge, Islamabad West, in the Toshakhana Reference filed by the Election Commission of Pakistan.
At this stage, an application under this Section is to be tentatively assessed without delving into the merits/demerits of the case. The trial court found the accused guilty of corrupt practices and convicted him under Section 174 of the Election Act 2017 and sentenced him to three years simple imprisonment with fine of Rs 100,000, which is viewed as a decision per incuriam.
Amidst this legal quandary, whilst facing hundreds of cases, it is critical to mull over the mandate of THE constitutionally created organ of the State; Election Commission of Pakistan. With hindsight, we would All do things differently. The Election Commission, through its Secretary (purportedly acting as an authorized officer on behalf of the Commission) filed a criminal complaint against Imran Khan, under Section 137(4) of THE Election Act, 2017, for failing to submit the statement of assets and liabilities for the fiscal years 2018-2019, 2019-2020 and 2020-2021, along with that of their spouses, which were to be declared in the prescribed manner envisioned under Sections 137 and 138 of the Election Act, 2017.
Without delving into the modalities of trial, to this end, the trialc Court passed its verdict and sentenced the former Prime Minister Imran Khan for three years simple imprisonment with a punitive fine. As a consequence thereof, the Election Commission notified the disqualification of the former Prime Minister, Imran Khan under Article 63(h) of the Constitution, from being chosen or elected as a member of Majlis-e-Shoora (Parliament).
An egregious faux pas agitated before the Islamabad High Court, pertains to the lack of legitimate authority vested in the Secretary of the Election Commission of Pakistan, to file the reference under Section 137(4) of the Elections Act, 2017 before the trial Court, in the purported manner, and remains under challenge.
The decision on application for suspension of sentence by the Islamabad High Court, spurred a noisy altercation amongst several quarters in terms of equating suspension of sentence with a presumption of innocence that would eventually lead to acquittal. As a necessary corollary, it is, indeed, a much more prudent approach to be cognizant that the powers conferred on the appellate Court under Section 426 of Code of Criminal Procedure are not wider than the power to release on bail under Section 497 and 498 of the Criminal Procedure Code. For the purposes of Section 426, a sentence can be suspended after reaching a conclusion that at the end of the day, there would be bleak chances of maintaining conviction without making deeper appreciation of evidence. Needless to mention here that the presumption of innocence does not operate in favour of the convict due to his conviction, therefore no reason exists to suspend sentence unless he is found otherwise entitled for the concession.
This discretion has to be exercised judiciously by the Courts after considering the relevant facts and without delving into the merits of the case. In essence, where the judgement is improper and is marred by infirmities and there is lack of evidence to determine the culpability of the accused, suchlike discretion may be exercised under this section. Or else the whole process of filing the appeal would be defeated, if the accused would remain behind bars for the total period of the sentence afforded to him. The appellate Courts, usually, in such like circumstances, where the quantum of sentence is less or equivalent to three years, in exercise of their powers under Section 426 Code of Criminal Procedure, may in ordinary circumstances suspend the sentence of a convict and grant him bail pending disposal of his appeal, notwithstanding absence of any material difference in principle governing for grant of bail. As such, suspension of sentence on statutory grounds is deemed to be a rule and its refusal is deemed to be an exception.
The appeal against conviction challenging the judgement passed by the trial court will be decided by the Islamabad High Court after deeper appreciation of the material and record brought forthwith in the appeal against conviction. Therefore, till the final decision of appeal, the notification of disqualification issued by the Election Commission of Pakistan under Article 63(h), stays in the field, and the suspension order passed by the Islamabad High Court, has no bearing on the qualification/disqualification of the former Prime Minister Imran Ahmad Khan.
Albeit the very base, edifice and foundation on which Election Commission’s purported claim may rest, raises concerns on the maintainability of the reference filed before the trial Court, and any action pursuant to such a base would be considered nullity in the eyes of law and any superstructure built thereon is bound to collapse like a house of cards.
Let us not cavil too much. The appellate court is yet to decipher the merits of the appeal, but prima facie it appears that the reference filed by the Election Commission does not fulfil the criterion laid down in Section 137(4) of the Election Act, 2017, which concretely provides a statutory period of 120 days for taking cognizance against a member of Majlis-e-Shoora (Parliament), who has purportedly failed or has falsely provided information in the statement of assets and liabilities, to be guilty of corrupt practices. However consciously, the reference filed by the Commission, specifically, challenges the discrepancies in the statement of assets and liabilities, from the period of 2018-2019,2019-2020 and 2020-21, which seems manifestly invalid as the same does not align with the statutory period provided in Section 137(4) of the Elections Act, 2017.
Another egregious faux pas agitated before the Islamabad High Court, pertains to the lack of legitimate authority vested in the Secretary of the Election Commission of Pakistan, to file the reference under Section 137(4) of the Elections Act, 2017 before the trial Court, in the purported manner, and remains under challenge.
