Trial court's decision in Toshakhana case challenged
PHOTO: FILE
The Pakistan Tehreek-e-Insaf (PTI) chairperson has challenged the trial court’s decision regarding maintainability of the Toshakhana reference filed by the Election Commission of Pakistan (ECP).
Advocate Gohar Ali Khan submitted a plea before the Islamabad High Court on the PTI chief’s behalf on Tuesday against the trial court’s decision. The petitioner moved the IHC to annul the trial court’s decision.
Last week, a trial court in Islamabad had announced starting criminal proceedings against the former prime minister in the Toshakhana case on July 12 after rejecting his plea against the maintainability of the ECP’s complaint.
Islamabad District and Sessions Court (West) Judge Humayun Dilawar issued the order four days after the IHC directed him to decide the PTI’s application afresh “after hearing the parties with detailed reasons keeping in view the provisions of Article 10-A of the Constitution”.
The PTI counsels did not present their arguments as the court rejected their request to adjourn the matter till Monday due to absence of lead counsel Khawaja Harris.
On July 8, when the court resumed hearing the PTI’s petition against the ECP’s complaint that sought criminal proceedings against the former PM for not disclosing the gifts that he withdrew from the Toshakhana in his statement of assets, the judge expressed displeasure over Harris’ absence.
He noted that the court had been hearing the case for the last three days but the PTI's lead counsel had not attended any hearing. “The court is showing unprecedented restraint but the petitioner is taking undue advantage of this restraint,” he said to Gohar, Harris’s associate advocate.
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“Present arguments at 11:30 AM or I will decide the matter without hearing you,” the judge noted.
At this point, Gohar Ali Khan submitted two applications in the court, seeking exemption for the PTI chief from appearing in the court and adjourning the case till July 10 (Monday). The ECP’s counsel, however, opposed the request.
The judge observed that the track record of the accused, PTI chief, was not good. “Tell me the date when the accused appeared in the court in the Toshakhana case?” he asked.
Judge Dilawar said the IHC had given “such a big relief” to PTI chief. “All eyes are on this case. Due to this case, we have stopped hearing other cases,” he added.
Later, the court adjourned for a few hours. When the judge resumed proceedings at 11:30 AM, Harris, who was supposed to present arguments against the ECP’s complaint, had still not arrived.
The PTI chief’s counsel, Gohar, told the court that the ECP’s counsel might present his arguments first. “We will present our augments on Monday,” he said. ECP’s counsel Amjad Pervaiz read the ECP’s October 21, 2022 order as well as the IHC’s July 4 order.
On October 21, 2022, a four-member bench of the ECP declared Imran’s National Assembly seat vacant as it disqualified the former prime minister under Article 63(1)(p) of the Constitution.
In its ruling, the ECP said Imran “intentionally and deliberately” violated the provisions contained in sections 137, 167 and 173 of the Elections Act, 2017 as he submitted a “false statement” and “incorrect declaration” to the ECP in the details of his assets and liabilities filed by him for the year 2020-21.
On July 4, the IHC remanded the case back to the trial court with direction to decide it in one week. The PTI chief later challenged the IHC order in the Supreme Court.
Amjad Pervaiz contended that all members of the ECP unanimously disqualified the PTI chief and ordered initiation of criminal proceedings against him for submitting a false statement under Section 190(2) of the Elections Act, 2017.
“The ECP issued the order after completing all the legal formalities,” he said.
While giving his arguments, Pervaiz said he would speak in Urdu so that the media could also understand. The court asked the counsel if he was presenting arguments or it was a political point-scoring exercise. The court adjourned for a second time on the request of Pervaiz, who wanted a break.
When the court resumed hearing, the ECP’s counsel continued his arguments. However, when Pevaiz wound up his arguments, the court cancelled the PTI chief’s counsels right to hearing - as advocate Gohar insisted on adjourning the case till Monday -- and reserved its order.
The judge later unveiled the order, rejecting the PTI’s plea against the ECP’s complaint. The court announced starting the Toshakana case trial from July 12 as it summoned prosecution witnesses.
Speaking to the media, Imran’s counsel said the court should have given them an opportunity for hearing. “Our arguments were not even heard, the decision was given 10 minutes after the ECP’s arguments. We will challenge the decision in the Islamabad High Court,” he said.
Background
Last year, six members of the National Assembly filed a reference to the NA Speaker Raja Pervaiz Asharf, claiming that the statements of assets and liabilities submitted by the PTI chief with respect to the years 2018, 2019, 2020 and 2021 were not correct.
The speaker referred the matter to the ECP under Article 63(2) of the Constitution. The ECP, after issuing notices to all, decided the matter on October 21, 2022 and disqualified the PTI chief under Article 63(1)(p) of the Constitution read with sections 137, 167 & 173 of the Election Act, 2017.
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The ECP also directed its office to initiate proceedings against the PTI chief under section 190(2) of the Election Act, 2017 and filed a complaint in the Islamabad (West) sessions court against the PTI chief on November 7, 2022 for allegedly making a false declaration about his assets and liabilities.
The court, after recording cursory statements and examination of the documents, issued summons/notices to the PTI chief.
The PTI chief on March 13 this year moved an application in the court for dismissal of the complaint.
The former premier took the stance that the ECP had filed the criminal complaint without due authorization and that the same was also barred by limitation in light of law - section 137(4) of the Election Act, 2017, which says such criminal proceedings can only be started within 120 days on the submission of statement of assets and liabilities.
The PTI chief on May 5, 2023 filed another application for rejection of the complaint as being in violation of section 193 of the Code of Criminal Procedure, 1908 (CrPC).
However, the court rejected both the applications through a consolidated order dated May 5, 2023. Imran later approached the IHC, assailing the trial court’s order to the extent of dismissal of the ECP complaint on the basis of “limitation” and “authorization”.
The IHC on July 4 ordered the trial court to rehear the matter and decide it in seven days.