ISLAMABAD: The Islamabad High Court (IHC) reserved on Monday its decision on former prime minister Imran Khan’s plea against his sentence in the Toshakhana case.
The verdict, earlier expected today, is slated to be announced at 11am on Tuesday. Pakistan Tehreek-i-Insaf (PTI) chairperson and deposed premier Imran, who is currently incarcerated in Attock jail, has challenged the three-year prison term handed to him on August 5, 2023, by an Islamabad district court in the gifts repository case.
The trial court’s verdict in effect bars the PTI chief from contesting the general elections for five years. The PTI chief’s lawyer, Latif Khosa, and the Election Commission of Pakistan’s (ECP) counsel Amjad Pervez appeared before the court.
At the outset of the hearing, the former appealed to the bench, led by IHC Chief Justice Amir Farooq and comprising Justice Tariq Mahmood Jahangiri, to issue an order on the plea seeking access to legal counsel for the former PM in jail.
CJ Farooq remarked that the bench hopes to issue the verdict on the plea seeking annulment of the sentence today, prompting the ECP lawyer to ask whether he should proceed with arguments given this observation.
“I said that the plea seeking annulment of sentence will be decided on today,” repeated CJ Farooq.
Beginning arguments, advocate Pervez said that it is necessary to first issue a notice to the public prosecutor.
At this, CJ Farooq observed that the case was filed by the federal electoral body and not the state. “You did not bring this up before the trial court. This is the first time you are mentioning this,” he remarked.
Referring to the Rahul Gandhi case, the ECP lawyer said that the Indian politician was sentenced to two years in the private complaint case. The Indian National Congress leader challenged the verdict and the court dismissed his plea.
The ECP lawyer also referred to other past verdicts, including the Zahoor Elahi case, and argued that the hearing on the appeal could not proceed without notifying the government.
The attendance of three lawyers is marked in all such cases, said advocate Pervez, mentioning the defence, prosecution, and state counsels.
“I’m not arguing against their plea to annul the verdict at the moment. I am saying that putting the public prosecutor on notice is necessary before proceeding in this direction,” said the ECP counsel.
Justice Farooq remarked that the public prosecutor is not present during hearings on complaints by the National Accountability Bureau (NAB) either.
At this, advocate Pervez said that the anti-graft bureau’s own watchdog is present in such cases and added that while NAB law does not mention the presence of a public prosecutor, the Code of Criminal Procedure (CrPC) does.
He moved the court to issue a notice to the state and make it party to the case. “The word ‘complainant’ is not mentioned in the law. The word ‘state’ is used,” argued the ECP lawyer.
Regarding maintainability and the matter of the district court holding a direct hearing, the ECP lawyer argued that “The trial of any crime committed under the Pakistan Penal Code (PPC) is conducted under the CrPC,” he said, contending that no complaint regarding corrupt practices or corruption has been heard by a judicial magistrate in the past 50 years more or less.
The ECP lawyer asserted that the trial has to be held by a court regardless of whether the complaint was filed under a magistrate or directly. “This is not even a matter of court jurisdiction.”
Arguing on the objections raised by the PTI chairperson in his appeal, the ECP lawyer said that “They argue 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”.
Advocate Pervez asked whether Imran’s legal team could present “one judgment where the complaint reached the court after being heard by a magistrate”.
The ECP counsel stated that he had referred to 14 past verdicts in his arguments thus far and requested a 15 minute recess, which the bench permitted. Advocate Pervez continued with his arguments once the hearing resumed.
During the hearing, Imran’s counsel Khosa informed the court that he did not have any objection’s to the ECP’s request to make the state party to the case. Later, the bench reserved the verdict and adjourned the hearing.
The previous hearing on August 25 was adjourned amid strong protest by the PTI chief’s legal team as the ECP lawyer failed to appear before the court on medical grounds.
The day before, Imran’s lead counsel Khosa had argued that the deposed premier’s sentence should be immediately suspended based on three grounds: an unauthorized filing of the complaint; non-jurisdiction of the court; and the fact that Imran is sentenced to only three years of imprisonment.
Khosa said under the Election Act, 2017, the Election Commission of Pakistan (ECP) has the power to file a complaint against a lawmaker and that powers lie with the chief election commissioner (CEC) and ECP’s four provincial members.
“Both the CEC and the four ECP members are authorised to file a complaint and they can authorize the ECP secretary to lodge a complaint [on their behalf]. However, in this case, even the secretary did not file the complaint against Imran. Rather it was filed by a district election commissioner.”
He said another objection is that the ECP complaint was not filed correctly at the proper forum. “A complaint cannot go directly to a sessions court judge; the procedure in the law dictates that the complaint must first be filed to a magistrate as a sessions judge cannot directly hear a complaint.”
Referring to various decisions of the Supreme Court, he said a complaint goes to a magistrate first. The magistrate then refers it to a session court. “We are not challenging the trial itself. The sessions court will conduct the trial but it cannot do so directly.”
He said Imran Khan was sentenced to only three years in prison. This sentence was further reduced to 2.5 years after the President of Pakistan pardoned the prisoners’ six-month sentence on August 14. “The PTI chairman’s six-month sentence has been pardoned,” he added.
The PTI chief’s counsel also highlighted various defects in the trial court’s order. He said the trial court did not allow the PTI chief to present witnesses in his defense; issued the order despite the fact that the matter was pending with the IHC and ignored the IHC’s orders.
“The ASJ completely disregarded your instructions. We provided a list of witnesses for our defense, but the court deemed the witnesses irrelevant without even reviewing the list,” Khosa said.
He said the IHC on August 4 held that the trial court’s decision to declare the Toshakhana case admissible was illegal. It had ordered the lower court to hear the PTI chief’s plea against the maintainability of the case “afresh”. “However, the trial court convicted Imran Khan on August 5 while completely ignoring the IHC order.”
Khosa explained the reason why the PTI chief’s lead counsel Khawaja Haris arrived late at the sessions court on August 5.
When the trial court resumed hearing the case on August 5, Imran’s lead counsel did not show up. The trial court judge had called the PTI’s counsel four times between 8:35am to 12pm.
However, when “no one” appeared on behalf of the accused for argument, the court reserved its verdict. At 12:30pm, the trial court judge unveiled his order. Referring to the IHC order, the court had observed that it was dismissing the PTI chief’s petition against maintainability of the ECP complaint as “nobody argued the application filed by the accused questioning maintainability of the complaint”.
Khosa said in the morning of August 5, some people tried to abduct Khawaja Haris’s clerk.
“Khawaja Haris wrote a request to the Chief Justice of the Supreme Court and informed him about the matter. At 12 o’clock, Khawaja Sahib arrived at the trial court. However, the judge told him that now his presence was not required.
“At 12:30, the judge, in a brief order, pronounced a three-year sentence. At 12:35, it was discovered that Lahore police had arrived at Imran Khan’s residence. Imran had been arrested five minutes after the verdict,” he said.
Before the hearing was adjourned, the ECP counsel had said that case was not about tax evasion rather it was about the submission of fake declaration of assets and liabilities.
He said the accused in statement under section 342 mentioned that he wanted to present witnesses in his defense. This implies that the accused had conceded that the prosecution had proven its case, and now he intended to present witnesses in his defense.
“The accused should have provided the information himself on the ECP’s form B, rather than relying on an accountant or tax consultant. This is a case of incorrect declaration,” he said.
