Top court raises questions on trial court’s verdict of awarding 3-year jail to ex-PM in Toshakhana case n Justice Umar Ata Bandial says SC restraining to interfere as case is pending before IHC.

 

ISLAMABAD  -  Chief Justice of Pakistan Justice Umar Ata Bandi­al Wednesday said that prima facie there are ‘serious defects’ in the trial court verdict in the Toshakhana reference, but the apex court is re­straining to interfere as the case is pending be­fore the Islamabad High Court (IHC).

A three-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Mazahar Ali Ak­bar Naqvi and Justice Ja­mal Khan Mandokhail conducted hearing of PTI chief Imran Khan’s pleas filed against his convic­tion in the Toshakhana case by the trial court.

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

During the hearing, the bench raised ques­tions on the trial court’s judgment of award­ing a three-year sen­tence to Imran Khan in the 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.

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 2018 gen­eral elections.

The PTI lawyer said that 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, 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 is 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.

The CJ said, “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. He added, “Criticism should only be re­stricted to the decisions … this is the way institutions work.”

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

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

At this, 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. He asked, “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 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, therefore, adjourned until today.