All eyes are on PTI Chairman Imran Khan’s legal team as to how it will secure him from indictment by an Islamabad district and sessions court in the Toshakhana (gift depository) case on Saturday (today).
Khawaja Haris is leading the legal team of Imran. Interestingly, the same lawyer was hired by former prime minister Nawaz Sharif in the Panamagate case, wherein the PML-N supremo was indicted in three references by two different accountability courts.
Haris is now defending the PTI chief in the Toshakhana criminal reference. The situation is similar in both the cases, wherein the ‘powerful circles’ wanted to achieve the same objective -- disqualification of the political leader.
A senior PTI leader said there was enough material of District and Sessions Judge Zafar Iqbal’s partiality. Therefore, he added that an application should be moved first for the transfer of the case from him to any other judge.
“We need to get rid of non bailable warrants, first,” a member of Imran’s legal team said, adding that "we want the issue of maintainability to be decided first.”
A member of the PTI's legal team said the transfer application was being seriously considered but the final decision would be made by Haris after consulting with Imran.
Under the law, a transfer application will be decided by a sessions judge.
If this application is filed, then the PTI’s legal team will try to postpone the indictment until a decision is reached on it.
Likewise, another member of the PTI's legal team admitted that they would try hard to prevent framing of charges against Imran. “There is no setback even if the judge indicts Imran Khan on Saturday,” he added.
He also maintained that they had no issue with the appearance of Imran before Judge Iqbal on Saturday. “However, we want that our applications about the maintainability of the ECP’s [Election Commission of Pakistan] complaint are decided first,” he continued.
He said the legal team would approach the superior courts in case its applications were rejected. “It is unlikely that the trial will conclude this year,” he predicted.
Another lawyer rejected the impression that the trial would conclude soon after Imran’s indictment, adding that the applications had to be sorted out before making a final decision on the ECP’s complaint.
The PTI’s main objective is to linger the Toshakhana case until the general elections of the National Assembly. The role of Chief Justice of Pakistan Umar Ata Bandial will be significant in this connection.
The Chief Justice is known as a ‘balancing judge’ , who does not give a free hand to one side to suppress the other since April last year. He is retiring in the month of September this year.
His legacy is dependent on holding of general elections during his tenure. However, the Supreme Court itself is facing a crisis of polarisation wherein judges are questioning each other’s conduct in their judicial orders.
The apex court is still facing a shortage of two judges. Senior judges could not evolve a consensus on the nominees for their elevation to the SC.
It is witnessed that after the happenings in the last couple of weeks, it is not just Imran but the judiciary is also facing a trial.
The Pakistan Democratic Movement (PDM)-led government wants Imran disqualified before the general elections.
It has been learnt that the PTI’s legal team has decided to approach superior courts against the PDM leaders, who acquired gifts from the Toshakhana on lower prices.
Legal expert Advocate Hafiz Ahsaan Ahmad said there were different stages of criminal trials under the Criminal Procedure Code (CrPC) in Pakistan.
He elaborated that the process started after the submission of a report under Section 173 of the CrPC, 1898 to the trial court or through filing of a reference with it.
After the receiving of such a report submitted to the court by the prosecution, the accused was summoned and copies were supplied to them, he explained.
He further said the next step after supply of copies by the trial court was the framing of formal charges on the next date of hearing.
The accused is asked whether or not they have committed the alleged crime. If they plead not guilty, the framing of charges marks further commencement of a regular trial.
Also read: IHC suspends Imran's non-bailable arrest warrant in Toshakhana case
According to the legal expert, the prosecution thereafter is summoned for its evidence and witnesses under Section 265F of the CrPC. The witnesses are later cross-examined by the defense or accused.
He also said that during the pendency of proceedings, the accused could file an acquittal application under 265K of the CrPC before conclusion of the trial court's proceedings.
Khokhar continued that once the prosecution had made out its case, the accused had a right under Section 340 of the CrPC to give evidence on oath to prove that the charges or allegations against them were wrong.
Finally, the accused is examined by the court by being asked certain questions before being provided with an opportunity to present evidence under Section 342 of the CrPC.
The legal expert explained that the trial was then concluded and final arguments were heard from both sides, after which a judgment was pronounced by the trial court either culminating the proceedings on acquittal or conviction under 265H of the CrPC.
In both cases, either side has a right to challenge the decision before an appellate court.
Khokhar finally said that there were two relevant principles on the basis of which criminal cases were decided including the presumption of innocence and the burden of proof whereby the prosecution had to prove its case beyond reasonable doubt.
He added that this was in contrast to civil cases where the burden of proof was based on a balance of probabilities.
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