According to Chief Justice of Pakistan (CJP) Umar Ata Bandial, the Supreme Court will refrain from “interfering” in the Toshakhana case until the Islamabad High Court rules on PTI Chairman Imran Khan’s appeal against his conviction and imprisonment. However, the chief judge did note that “the trial court verdict appears to have flaws.”
On August 5, a trial court in Islamabad sentenced the PTI leader to three years after finding him guilty of “corrupt practices” in a case involving hiding information about official gifts. The judgment also ruled that he was ineligible for five years to run in general elections.
Imran then petitioned the IHC to overturn his conviction and imprisonment. The high court postponed the case till tomorrow (August 24), a day earlier.
Imran filed a petition today contesting the IHC’s decision to remand the Toshakhana case to Additional Sessions Judge (ASJ) Humayun Dilawar, who had previously found the former prime minister guilty. CJP Bandial, Justice Mazahar Ali Akbar Naqvi, and Justice Jamal Khan Mandokhail made up a three-person SC bench that heard the petition.
During the hearing, the top court heard arguments from PTI attorney Latif Khosa and counsel for the Election Commission of Pakistan (ECP), Amjad Pervaiz.
The CJP declared after hearing both parties, “We will not intervene in the Toshakhana matter today… Tomorrow, we’ll have a look at the IHC hearing before continuing.
The Hearing
Imran’s attorney, Latif Khosa, announced at the beginning of the hearing that the PTI leader had submitted three applications to the Supreme Court of Pakistan challenging IHC rulings.
He remembered that during the 2018 elections, Mianwali’s Imran was chosen to serve in the National Assembly. According to the attorney, six MNAs had written a reference to the speaker asking for the PTI chief’s disqualification. “The Election Act tells every member of the NA to submit details of their assets,” the lawyer stated.
The MNA had charged Imran with making an inaccurate disclosure of his assets, Khosa continued. By Section 137 of the Election Act, the speaker has forwarded the reference to the Election Commission of Pakistan (ECP).
The submission of a statement of assets and liabilities is covered by the clause above of the act, which Justice Naqvi requested the attorney read out. Khosa continued by saying that the ECP could only investigate within 120 days.
Can one NA member provide a negative reference for another member? When Justice Naqvi questioned the attorney, the attorney responded that no one could send a reference and that the ECP could only conduct an investigation within a specific time frame.
He emphasized, “Action can be taken within 120 days after submission of financial statements,” and said that only the NA speaker, not a member, could issue a reference to the ECP. After 120 days, Khosa said, a reference was sent against the PTI leader.
Justice Mandokhel stepped in at that point and said that the petitioner’s appeal was against the IHC order and not the legitimacy of the reference against Imran.
The judge questioned, “Who can be remanded now that the trial court case is over?” How will this Toshakhana case impact the primary appeal against the conviction? Khosa said the court would have to “rewind the hands of the clock to the previous position.”
However, the Chief Justice of Pakistan said, “A building constructed on a faulty foundation cannot be demolished every time.” He also questioned whether the petitioner’s defense was that the October 21 ECP complaint in the trial court could not be upheld.
The Toshakhana complaint, according to Khosa, “should have been sent to the magistrate first.” The chief justice questioned, “According to you, the magistrate conducts the initial inquiry, and the sessions court holds the trial.”
At this point, Justice Mandokhel clarified that, according to the legislation, a magistrate is supposed to examine the complaint before sending it to the session court. He questioned, “In the law, what does the magistrate reviewing [the complaint] mean?”
Khosa stated that the magistrate would determine whether or not the complaint was admissible. The PTI counsel responded that the ECP could file a complaint in response to the CJP’s question about who could register a complaint under the Elections Act.
Khosa lamented that the ECP secretary had requested the district commissioner for the electoral body to complain to Imran. The CJP responded, “So you’re saying that the secretary shouldn’t have been called the ECP.” The chief judge continued, “The sessions court should have dismissed the complaint.”
Justice Mandokhel expressed that the issue might be resolved during the IHC hearing on Imran’s petition challenging his conviction. What was the rush to render the [sessions court] judgment, he further questioned?
The CJP then questioned the PTI attorney about whether the petitioner intended to bring up these issues in the high court or if he wanted the SC to draw attention to them for the IHC.
According to Khosa, a court declared Imran’s conviction without having the proper authority. “This matter can also be raised during the appeal hearing in the IHC,” the CJP said.
Justice Bandial instructed Khosa to object to judgments rather than the courts concerning the IHC CJ. “This is how institutions work; criticism should only be limited to the decisions.”
He further asserted that no judge could be charged with bias and that the court would stand up for all the justices. The court then ordered the ECP attorney to the podium. Pervaiz began his defense by stating that the trial court had reserved judgment on the PTI chief’s concerns.
He added that Imran had been allowed to defend himself during the Toshakhana case. Justice Bandial then inquired, “Do you see the PTI chairman here? Nowhere do I see the suspect, Is the defendant in custody or present in court?
Don’t make such jokes, an irate CJP commanded. What chances were presented to the PTI chief? The trial court found the suspect guilty and jailed him after calling the Toshakhana case three times. The PTI chairman received not even a whisper.
Later, the chief justice said that because the SC is a court of law, it has decided to wait until tomorrow’s IHC hearing rather than sending the case from one court to another. The case was then postponed until Thursday at 1 pm.
The Petition
Imran’s appeal, filed through attorney Khawaja Haris Ahmed, asks the supreme court to hold the Toshakhana trial court hearing. The appeal argued that IHC Chief Justice Aamer Farooq misinterpreted the submission made on behalf of the council to remand the matter to any trial judge other than ASJ Humayun Dilawar when he remanded the Toshakhana case to the trial judge.
“However, the high court ordered the Toshakhana case back to the trial court without giving the attorney a chance to independently present arguments on the motion’s merits to transfer the Toshakhana case.
The appeal argued that the high court committed a legal error when it remanded the Toshakhana case involving the challenge to ASJ’s jurisdiction to proceed with the complaint on merits for the decision anew because the earlier decisions rendered by the trial court were “cursory and shoddy” since they failed to address the petitioner’s counsel’s key arguments.
The high court’s decision-making process violated the petitioner’s fundamental rights, the statement continued, as evidenced by the fact that the order needed to be made with proper consideration.
Additionally, the petition requested that the Toshakhana case be transferred due to what it claimed to be biased, specifically, that the petitioner had been falsely accused and that the petitioner’s claims in numerous applications had not been properly resolved.
In the meantime, Imran, through his attorney, submitted a new plea to the SC early this morning asking for the transfer of all cases he is involved in before the IHC to the high courts in Lahore or Peshawar. According to the petitioner, the IHC CJ was biased against him and was attempting to keep him in jail to hinder him from running in the upcoming general elections.
Case of Toshakhana
The Toshakhana case was brought by parliamentarians from the ruling party and is supported by an ECP criminal complaint.
According to the lawsuit, Imran “deliberately concealed” information on gifts he kept from the Toshaskhana during his tenure as prime minister, including the proceeds from their reported sales. The Toshaskhana is a storage facility for gifts given to government officials by foreign authorities.
Individuals who fall under the jurisdiction of Toshakhana regulations must inform the Cabinet Division of any gifts and similar items they may receive. Due to his decision to keep gifts, Imran has encountered numerous legal problems. The ECP also disqualified him as a result of the problem.
The ECP concluded that the former premier had made “false statements and incorrect declarations” about the present on October 21, 2022. Imran was declared ineligible according to Article 63(1)(p) of the Constitution, according to the watchdog’s order.
The ECP then submitted a copy of the complaint to the Islamabad Sessions Court, asking for criminal charges against Imran for allegedly lying to officials about the gifts he received from foreign dignitaries while serving as prime minister.
Imran was charged with the crime on May 10. However, on July 4, the Islamabad High Court (IHC) halted the proceedings and ordered ADSJ Dilawar to review the Toshakhana case in seven days while considering the eight legal issues he posed to determine whether the Toshakhana reference could still be maintained.
The ECP’s decision of October 21, 2022, was a valid authorization for any officer of the ECP to file a complaint and whether the question of authorization was a question of fact and evidence and could subsequently be ratified during proceedings.
Finally, on July 9, ADSJ Dilawar reviewed the halted proceedings and summoned witnesses for testimony, ruling that the reference was maintainable.
Last month, a session court ruled that the ECP reference against the PTI leader could still be maintained. The judgment was then contested in the IHC.
Judge Dilawar ruled on August 2 that Imran’s defense team had failed to demonstrate the significance of his witnesses. He had cautioned the defense attorney that the court would withhold an order if the arguments weren’t finished.
On August 5, the IHC granted Imran a brief reprieve by requesting that the court reconsider the jurisdiction and any procedural errors that may have occurred during the ECP’s complaint filing. But a day later, the trial court found the former premier guilty.