Toshakhana case: Sessions court erred in convicting Imran: CJP

ISLAMABAD: The Supreme Court (SC) Wednesday observed that the trial court made mistakes in its verdict while convicting former prime minister in the Toshakhana Reference and sending him to jail.

A three-member SC bench, headed by Chief Justice Umer Ata Bandial and comprising Justice Sayyed Mazahir Ali Akbar Naqvi and Justice Jamal Khan Mandokhel, heard an appeal filed by PTI Chairman Imran Khan, challenging the order of Islamabad High Court (IHC) passed on August 4, rejecting his appeal seeking transfer of Toshakhana Reference against him to another court. During the course of hearing, the CJP observed that prima facie there were some mistakes in the verdict of the trial court.

The high court remanded the matter to the trial court which, after giving two-three calls the next day, convicted the former PM and sent him to jail, the chief justice remarked. “There are serious points of law that deserve our concentration, but we are told that an appeal against the conviction and suspension of sentence of the petitioner (Imran Khan) in Toshakhana case is pending before the high court, fixed for Thursday (today),” the CJP noted in its order.

He said the petitioner was in jail since August 5 while his appeal in the high court against suspension of his sentence was fixed for Thursday (today).

“Out of respect for the high court, we wait for its decision, and we will hear the matter on Thursday (today) at 1pm,” the CJP noted down in the order.

“Notwithstanding, the legal issues highlighted before us regarding the jurisdiction and maintainability of the complaint filed against the petitioner, we consider that the learned high court is the first court to hear and decide the matter before us,” the chief justice added.

A trial court declared former prime minister Imran Khan guilty of corrupt practices on August 5 in a case pertaining to concealing details of state gifts and sentenced him to three years in prison.

The PTI chief challenged his conviction before the Islamabad High Court, which adjourned the hearing for Thursday, August 24, after directing the counsel for the Election Commission of Pakistan to provide complete record of the case.

In his appeal filed before the Supreme Court, the PTI chairman had submitted that the judgments relied upon by the single judge, chief justice Islamabad High Court, in refusing to remand the matter for decision afresh to a judge other than the judge who had passed the order impugned in the criminal review petition, are wholly inapplicable to law and facts to the instant case and, as a result, the impugned judgment is not warranted by the law.

Earlier, during the course of hearing on Wednesday, Sardar Latif Khosa, representing the PTI chief, apprised the apex court that six MNAs had submitted a reference to the speaker seeking the PTI chief’s disqualification for filing incorrect declaration of his assets.

He submitted that the speaker of the National Assembly had then sent the reference to the Election Commission of Pakistan (ECP) under Section 137 of the Election Act. Latif Khosa contended that the electoral watchdog could only conduct an inquiry within 120 days.

Justice Mazahir Ali Akbar Naqvi asked the counsel as to whether a member of the National Assembly could send a reference against another member. Latif Khosa replied in the negative, adding that the Election Commission could only conduct an inquiry within a stipulated time period; however, he said that the reference against his client was sent after 120 days.

Justice Jamal Khan Mandokhel questioned Khosa as to who could be remanded now when the trial court is over and further asked as to how would the case impact the main appeal against conviction.

Khosa replied that the court would have to rewind the hands of the clock back to the previous position. Latif Khosa stressed that instead of a sessions judge, the compliant should have first been sent to a magistrate.

At this, the CJP asked Khosa as to whether he wants to say that a magistrate was the first competent court to conduct an initial inquiry and then the sessions court should conduct the trial. Justice Jamal Mandokhel remarked that under Section 190, cognizant should be taken by a sessions judge. Latif Khosa contended that under Sub Section 2 of 190, cognizant should have been taken by a magistrate.

CJP Bandial asked Khosa as to who is competent to file a complaint under the Election Act. Khosa replied that it could be filed by the Election Commission, but added that the secretary Election Commission had asked the district commissioner to file a complaint against the PTI chief.

“So you mean the secretary should not be considered as the Election Commission and the sessions court was required to reject the complaint,” the CJP asked the counsel for the PTI.

“Off course,” Latif Khosa replied. The chief justice then asked Khosa as to whether he would raise those law points before the high court in his appeal or he wanted that the Supreme Court should highlight those points.

Latif Khosa contended that the sessions court had no jurisdiction to announce the verdict, convicting his client. The CJP asked the counsel to raise the point also before the high court.

At the outset of hearing, when Latif Khosa raised objections over the chief justice Islamabad High Court, the CJP told Khosa that every court was willing to write judgments and judgments go to the public and belong to the public.

“So criticise the judgments but not the judges,” the CJP told Khosa adding that no one could be accused of bias.

“Let’s talk about judgments not judges and the apex court will protect every judge, right from civil to higher judiciary,” the CJP remarked.

During the hearing, Amjad Pervez, Advocate, said although he had not yet received the power of attorney from the Election Commission of Pakistan, he could assist the court.

The CJP asked the counsel that the high court had remanded the case to trial court and the matter also came to them and questioned as to whether the trial court had given its decision on the points raised before the apex court.

Amjad Pervez submitted that the trial court had taken the point and gave a call but no one from the accused appeared before it.

Justice Mazahir Ali Akbar Naqvi asked the lawyer as to how many days were given to the counsel for the accused.

“You have decided the case without hearing the counsel for the accused,” Justice Naqvi told Amjad Pervez. “Whether the direction of the high court was complied with,” Justice Mandokhel asked the ECP counsel.

The CJP asked Amjad as to what opportunities were provided to the petitioner. “Is this your approach when the trial court called the case thrice, and then convicted the petitioner without listening to his counsel and sent him to jail,” the CJP asked the lawyer.

Justice Mazahir Naqvi remarked that the orders of the Supreme Court and high court were not complied with.

Meanwhile, the court held that let the high court first conduct the hearing and the apex court would wait for its decision and adjourned the matter for Thursday (today) at 1 pm.

Separately, PMLN supremo Nawaz Sharif and Chief Organiser Maryam Nawaz criticised CJP Umer Ata Bandial for giving remarks in favour of PTI Chairman Imran Khan. Nawaz thundered at the superior judiciary for allegedly hounding him, but going out of its way to facilitate PTI Chairman Imran Khan in his legal cases. He hit out after CJP Bandial asked the Islamabad High Court to hear Imran Khan’s Toshakhana disqualification and conviction case and also suggested that the PTI leader was wrongly convicted and not given enough time to defend himself.

Nawaz accused the “biased” judges and named former CJP Saqib Nisar and justice (retd) Asif Saeed Khosa and serving apex court judge Ijazul Ahsan and others for mistreating him and hounding him in the name of justice. Nawaz Sharif said Imran Khan had been caught in the theft of billions and he was involved in corruption cases from Toshakhana to Al-Qadir Trust for theft of billions but the chief justice was trying to protect him.

Nawaz said: “The then chief justice (Saqib Nisar) was hell bent on pushing me against the wall, but today’s CJP is determined to save Imran Khan. He knows Imran Khan has destroyed the country, the economy, national culture and has destroyed traditions.”

Meanwhile, Maryam Nawaz said in a tweet on Wednesday, “The CJP pleading for IK [Imran Khan] doesn’t make IK look good; it makes the CJP look bad. Very brazen.”

Separately, the Islamabad High Court (IHC) Wednesday granted two days to the Election Commission of Pakistan (ECP) for production of Toshakhana record, and instructed the Registrar Office to fix the case for hearing again on August 24.

The court issued a written order regarding Tuesday’s hearing of an appeal, filed by PTI chairman against his conviction in the Toshakhana case.

A two-judge bench, comprising Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahangiri, said in the order the counsel for Election Commission of Pakistan (ECP), Amjad Pervez, had prayed to the court to grant two-week time to present verified record of the case.

However, the petitioner’s legal team opposed the request of the ECP counsel. The court said it was granting two days to the ECP for production of the record, keeping in view the standard of justice, and instructed the Registrar’s Office to fix the case for hearing again on August 24. The order said that Dr Babar Awan had also given an application for meeting the PTI chief in jail.

The Registrar’s Office had raised objections on the application and Babar Awan had stated that he would not go against the objections if he was given permission of meeting.

It further said that the court was maintaining the objections of Registrar’s Office on the application of Dr Babar Awan.

However, it instructed the administration of Attock Jail to ensure meeting of Babar Awan with the former prime minister on August 23, during 1pm to 3pm. The order also said that the court had also accepted the application of Latif Khosa and allowed him to meet the PTI chief on the same date at 2pm.