ISLAMABAD: Former chief minister Punjab Chaudhry Pervaiz Elahi has challenged his physical remand in the Supreme Court (SC), saying the act was against the fundamental rights enshrined in the Constitution.
He filed an appeal in the apex court under Article 185(3) of the Constitution against the impugned judgment of Lahore High Court (LHC) as well as additional sessions judge Lahore.
He prayed the apex court to grant him leave to appeal against the impugned LHC judgment given on Sept 18, 2023, and an order passed by additional sessions judge on June 12, 2023, and set to aside these court decisions being unconstitutional, illegal, void ab initio and without lawful jurisdiction.
Elahi, President of Pakistan Tehreek-e-Insaf (PTI), questioned whether the grounds upon which the LHC single bench based the impugned order were vexatious and in violation of well-settled principles of law.
“Whether the order of the learned magistrate, whereby he refused to allow physical remand and sent me to judicial custody, is an executive order or judicial order,” he further questioned.
He submitted that the LHC impugned order was liable to be set aside as it had been passed without considering the legal grounds, raised by him in the particulars of petitions.
The order, passed by the additional sessions judge in revisional jurisdiction under Section 435, read with 439-A of the code, had been passed coram non judice, Elahi contended.
He stated that it was a well settled principle of law that the magistrate, while exercising powers under Section 167 and 63 of the Code of Criminal Procedure, 1898, did not act as criminal court subordinate to the court of sessions and the high court; therefore, his order could not be set aside, revised or modified under the provision of Section 439A of the Code.
“Even if the additional sessions judge had the jurisdiction to decide upon the order of the learned magistrate in revision petition, the revision petition is liable to be dismissed on the basis as it was not filed by the state through investigating officer,” Elahi contended.
The former CM submitted that the very action of filing of the revision petition through district appeal committee itself was reflective of the mala fide and ulterior motives of the state, which was trying its best to pressurise him for political reasons, as the investigating officer had not felt aggrieved of denial of the request for extension in remand in custody, but the state had felt aggrieved because the order dated June 4, 2023 had become an impediment to the state’s plan for showing its teeth to him.
He contended that the impugned LHC order, given by the single bench, was liable to be set aside as it had been passed without considering the fact that very inception of the FIR was false, frivolous and fictitious, which was lodged after a delay of two years based upon an inquiry on an anonymous source, which had not been revealed by the prosecution to this date.
“It is an open secret that political victimisation is at its worst in the state at the moment and people are being targeted, pressured, forced and coerced to jump ship their alliances with ex-prime minister Imran Khan so...in this instant where investigating agency is adamant to seek physical remand of petitioner for the sole purpose of having an opportunity to constrain and force them to change their alliance with Imran Khan,” Elahi contended.
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