Apex court regrets trial court through its judgement defied IHC directives to first determine maintainability of case n IHC to resume hearing of appeal against Toshakhana case judgment today.

 

ISLAMABAD  -  The Supreme Court of Pakistan Thursday said that it is waiting for the Islamabad High Court judgment, and let it first decide PTI Chairman Imran Khan’s ap­peal against the trial court judg­ment in the Toshakhana case.

A three-member bench of the apex court headed by Chief Jus­tice of Pakistan Justice Umar Ata Bandial and comprising Justice Mazahar Ali Akbar Naqvi and Jus­tice Jamal Khan Mandokhail con­ducted hearing of Imran Khan’s petition against the IHC order.

During the hearing, the CJP ob­served that the IHC hearing was still under way. He added, “The high court is finding a solution in the matter. This is the beauty of our system.”

He further said, “Let the high court’s decision come. We will hear the plea [filed in the SC] af­ter that.” Then, he adjourned the hearing until the IHC’s decision.

The apex court also asked the Attorney General for Pakistan to submit a report on the fa­cilities being provided to Im­ran in jail. During the hearing, Khosa complained about a po­liceman’s presence during one of his meetings with Imran in jail. At this, the CJP asked him “not to say anything that is not on record”. Meanwhile, the Is­lamabad High Court (IHC) de­ferred the hearing in an appeal of PTI chief Imran Khan against his conviction in the Toshakha­na criminal case till today.

A division bench of IHC com­prising Chief Justice of IHC Jus­tice Aamer Farooq and Justice Tariq Mahmood Jahangiri con­ducted hearing of the petition moved by Imran Khan who filed the petition through his coun­sels including Barrister Ali Zaf­ar, Sardar Latif Khosa Advocate, Babar Awan, Salman Akram Raja Advocate, Shoaib Shaheen Advocate and Barrister Gohar Ali Khan Advocate.

Barrister Ali Zafar, Salman Akram Raja, Barrister Gohar, Babar Awan, Latif Khosa and Sher Afzal Marwat were among Imran’s counsels who appeared before the court to represent Imran Khan while Advocate Amjad Pervaiz represented the Election Commission of Paki­stan (ECP). During the hear­ing, Khan’s counsel Latif Khosa adopted the stance that there were three grounds of his argu­ments related to the suspension of a sentence. He argued that the sessions court did not have the jurisdiction to hear ECP’s appeal while it had also not re­solved the matter of maintain­ability despite the IHC’s order to do so. He also argued that the sessions court should have sort­ed out the jurisdiction problem first. He contended that the ses­sions court announced the ver­dict without deciding the mat­ter related to the jurisdiction and the trial court even over­looked the high court’s order and that the trial court’s deci­sion had a lot of mistakes. He said that IHC accepted our ap­peal in the face of the trial court order and the high court had sent the case back to the trial court for a decision.

Khosa mentioned that the high court ordered the trial court to answer the questions raised by the defence in its de­cision. “The trial court even ig­nored the orders of the high court,” said the lawyer.

He continued that the com­plaint first should go to the magistrate and then the magis­trate will forward it to the ses­sions court.” He clarified that they were not even challenging the sessions court for conduct­ing this trial. The judge asked whether the answers to the points raised by the high court present in the final judgment? Khosa said in negative add­ing that the additional sessions judge completely ignored the di­rectives of the high court. He in­formed the court that they gave a list of witnesses during the de­fence but the sessions court de­clared them irrelevant. He add­ed that the list was disregarded without being examined.

Khosa stated that with all due respect you did not even stop the trial court to give a final de­cision. He added that whenever a case is under way in the high court, a trial court is always stopped from making a final de­cision. At this, Justice Jahangi­ri asked that on what grounds did the trial court disregard the list of witnesses? Khosa replied that the court thought the wit­nesses were well-versed in mat­ters concerning income tax and the court said that it was not looking at matters of income tax. The lawyer also said that the trial court asked why they were calling witnesses in the first place.

Khosa said that he has anoth­er reservation that the com­plaint should have been final­ized within 120 days. The IHC Chief Justice said that you are trying to say that the complaint was lodged after 120 days?

In his arguments before the court, Barrister Gohar empha­sized the necessity of adhering to the prescribed method out­lined in the Code of Criminal Procedure (CrPC) for handling this complaint. He mentioned that they had also submitted a plea in this regard, but unfortu­nately, the esteemed judge dis­missed it. Then, ECP counsel Amjad Pervez pointed out that the PTI chief had been convict­ed on August 5, as documented. He highlighted that the decision was subsequently contested in the high court on August 8.

Pervez elaborated that the de­fendant had now taken the mat­ter to the top court, challeng­ing the verdict from the IHC. He said that this places the IHC’s division bench in a po­sition between the trial court and the apex court, somewhat akin to a sandwich. The IHC CJ asked from Pervez about the es­timated time he needed to con­clude arguments in the case. The counsel responded that his arguments would require ap­proximately three hours. Kho­sa, however, said that it was un­precedented for a case related to bail to consume three hours in court.

Later, the bench adjourned the hearing of the case till today for further proceedings.

Meanwhile, the Pakistan Bar Council (PBC) asked the Su­preme Court that there should be no interference in matters pending before the subordinate judiciary. In its order issued af­ter yesterday’s hearing, the SC noted that the trial court called the respondents (Imran Khan side) a number of times. Since neither the petitioner nor any of his authorised representatives were available, the trial court chose to commence hearing ex parte and awarded a three-year sentence to Imran.

The SC observed that while re­cording his statement before the trial court under Section 342 of CrPC, Imran had expressed his intention of producing a de­fence witness, but the trial court on August 2 turned down the request, saying the witness was not relevant to the controversy.

The SC regretted that the tri­al court through its judgement had defied the IHC’s directions that it must first determine the question of jurisdiction as well as the maintainability of the case. Commenting on the mat­ter, PBC Executive Commit­tee Chairman Hassan Raza Pa­sha said that the main appeal against Imran’s conviction was not fixed before the SC. “But yesterday’s remarks by the SC which we saw and heard, it seemed as if the whole appeal was decided, and we saw crim­inal jurisprudence changing,” he said. “It seems as if there is no trust left in the honour­able high court judges. They are also equally honourable and re­spectable judges, and are pass­ing verdicts according to their conscience … it amounts to in­terference in the smooth func­tioning of the high court, appel­late court,” Pasha said.

“What decision will the high court make?” he asked. He not­ed that the lawyers of a certain political party, an apparent ref­erence to the PTI, were saying that the SC’s observations had amounted to an acquittal. “So will it be inferred that he was ac­quitted due to the SC’s pressure? And if they don’t, which high court or subordinate judiciary can make a decision either way in light of these observations?” he asked. He said that the PBC respected the SC and they did not want the court’s esteem to suffer. “There should be no inter­ference in matters pending in the high court,” he said, adding that any interference was unfair to the other party in the case. “We have seen that in other cases an order is issued, that we expect from the high court to decide the case in such and such manner … Yesterday, we felt that directions were given which should not happen. We, once again, say that no one should be prejudiced,” he said. He noted that in the past the courts were called “Sharif courts”. “We don’t want the pub­lic and lawyers to call the courts by another name,” he said.