Toshakhana reference: There’re prima facie serious defects in trial court’s verdict: CJP

ISLAMABAD: Chief Justice Umar Ata Bandial has said prima facie there are serious defects in the trial court verdict in the Toshakhana reference, and asked the Islamabad High Court (IHC) to decide Imran Khan’s appeal by Thursday (Aug 24).

A three-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Mazahar Ali Akbar Naqvi and Justice Jamal Khan Mandokhel, on Wednesday, heard the Pakistan Tehreek-e-Insaf (PTI) chief’s pleas filed against his conviction in the Toshakhana case by the trial court.

The PTI chairman challenged the IHC’s decision on August 3, wherein, the high court had referred the matter to the District and Sessions, Islamabad, Judge Humayun Dilawar, who convicted the former premier in the case.

CJP Bandial forms bench to hear PTI chief’s appeal against Toshakhana case proceedings

The CJP said the Court will wait for the IHC’s order on Imran Khan’s appeal against his conviction and sentence in the Toshakhana case before “interfering” in the matter. The High Court was asked to consider the former prime minister’s contentions about the trial court’s jurisdiction, maintainability of the complaint and transfer of judges etc by today (Thursday), after adjourned the hearing until August 24, 02:00 pm.

A division bench comprising Chief Justice Aamer Farooq and Justice Tariq Mahmood Jahangiri has already fixed Imran Khan’s appeal against Sessions Court, Islamabad, conviction on Thursday. During the proceeding, the bench raised questions on the trial court’s judgment awarding a three-year sentence to Imran Khan in Toshakhana case.

It also questioned the urgency shown by the trial court in deciding the case without recording the statements of witnesses. The case was decided ex parte, and the trial court decided the matter which was set aside by the high court on maintainability.

Justice Naqvi noted that the trial court defied the orders of the apex as well as high court in passing the Toshakhana judgment.

At the onset of the hearing, advocate Sardar Latif Khosa argued that the PTI chief had filed three petitions against IHC orders before the apex court. He contended that Imran was elected as a member of the National Assembly from Mianwali in the 2018 general elections.

The PTI lawyer said according to the Election Act every member of the National Assembly has to submit details of their assets. He submitted that six MNAs had filed a reference to NA Speaker for the disqualification of Imran Khan.

The counsel further stated that the MNAs had accused Imran of submitting an incorrect declaration of his assets. The NA Speaker had then sent the reference to the Election Commission of Pakistan (ECP) under Section 137 of the Election Act.

At that, Justice Naqvi asked Khosa to read out the said section pertaining to the submission of a statement of assets and liabilities. Khosa submitted that the ECP could only conduct an inquiry within 120 days.

Justice Naqvi questioned; “Can one member [of the NA] send a reference against another member?” The counsel replied that no one could send a reference and the ECP too could only conduct an inquiry within a fixed time. He said that the reference against Imran Khan was sent after 120 days.

Justice Mandokhel asked Khosa that his client’s case against the IHC order and not the legality of the reference against Imran. “How will this case impact the main appeal against the conviction?”, he added.

Khosa responded that the court would have to “rewind the clock back to the previous position”. Upon that the chief justice said, “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.

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, Amjad Pervaiz, at the rostrum. Amjad said that he does not have brief (power of attorney) from the ECP, adding the accused was not remediless, as he has different forum to defend himself.

Upon that, the chief justice got infuriated and said the accused appeal was filed in the high court on August 8, but it has not been decided yet. “Should we issue notice and summon the accused?” He also asked; “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.” He remarked that as a court of law, the SC did not want the case to be sent from one court to the other and decided to wait for the IHC hearing tomorrow. The case was therefore adjourned until Thursday (Aug 24) 02:00 pm.

Copyright Business Recorder, 2023