PTI chief’s bail: Opposing forces at work

SC special bench faces backlash for handling sub judice case

ISLAMABAD:

Amidst the jubilation within the Pakistan Tehreek-e-Insaf (PTI) camp, the proceedings of a special bench within the Supreme Court, led by Chief Justice of Pakistan Umar Ata Bandial, in the Toshakhana case have ignited a significant backlash from various quarters. In particular, the bench's observations have sparked criticism, as it pointed out flaws in the August 5 conviction of former prime minister Imran Khan by a trial court.

Prominent in the criticism directed at the apex court's proceedings are legal experts, who are raising questions about potential parallels between the trial court and the Supreme Court's actions. They argue that the trial court denied Imran Khan the opportunity to mount a defense, a perceived miscarriage of justice, and now the special bench of the Supreme Court is commenting on the trial court's decision despite its sub judice status in the Islamabad High Court.

At one juncture, Chief Justice Bandial even floated the notion of the bench issuing an order for the release of Imran Khan. The prevailing atmosphere during the proceedings on Wednesday suggests that the Supreme Court is expressing dissatisfaction with the Islamabad High Court's delay in deciding Imran Khan's plea to suspend his three-year conviction, which has remained pending since August 8.

The special bench is now eagerly awaiting the outcome of the ongoing proceedings in the Islamabad High Court. Imran Khan's legal representatives have argued for the suspension of the trial court's judgment, while the prosecution (the Election Commission of Pakistan) is vehemently opposing the same.

Amidst these developments, legal experts are perplexed about how the Supreme Court can oversee the high court's proceedings. A division bench that was unable to conclude arguments will resume the hearing on Friday.

However, the proceeding's inconclusiveness on Thursday can be attributed to several reasons, lawyers argue. A primary factor is the lack of coordination among the members of the PTI's legal team. With three counsels representing Imran Khan and Khawaja Haris, the former prime minister's counsel, having distanced himself from the case, the situation has become complex.

Furthermore, the Supreme Court's remarks on the conduct of the trial court judge have ignited another issue. This has provided the PML-N (Pakistan Muslim League-Nawaz) with ammunition to construct an anti-judiciary narrative.

Similarly, influential entities have been actively placing obstacles in the path the special bench intends to take. The Election Commission of Pakistan has enlisted Irfan Qadir to counter the bench's actions.

The situation has escalated to the point where even the Chief Justice of the Islamabad High Court, Aamer Farooq, commented on the high court's predicament, describing it as being caught in a difficult position.

Another intriguing facet of the proceedings is that the special bench has requested the Attorney General for Pakistan to submit a report on Imran Khan's living conditions, all without formally invoking suo motu powers.

Legal experts have weighed in on the Toshakhana case. Advocate Hafiz Ahsaan Ahmad Khokhar pointed out that the Supreme Court's jurisdiction is outlined by constitutional provisions such as articles 184, 185, 186, 187, and 188. He clarified that the Supreme Court's establishment is rooted in Article 176 of the Constitution, and its role is to adjudicate on current disputes, particularly those related to high court rulings in criminal cases, as stipulated by Article 185.

Khokhar emphasized that while a criminal matter is under consideration by the Supreme Court, lower courts remain free to issue any final orders according to the law. He noted that this applies when there is no restraining order against ongoing proceedings in lower courts by the Supreme Court. He clarified that the Supreme Court is currently refraining from making decisions on cases that are pending before it while awaiting the high court's final verdict, which would render the earlier Supreme Court orders irrelevant.

Regarding the ongoing case, Khokhar argued that the orders challenged before the Supreme Court are no longer pertinent, and thus the Supreme Court has not made rulings on the current proceedings. He contended that this approach prevents either party from gaining legal advantage, as the former prime minister's conviction would stand even if the appeals were decided in their current form.

Khokhar also discussed the appropriateness of addressing the matter and suggested that the Supreme Court could have made a decision on the appeals' grounds of non-maintainability and being infructuous, rather than waiting for the high court's decision. He proposed that the petitioner could then withdraw and challenge any new high court order if dissatisfied with the conviction or suspension of the sentence.

While Chief Justice Bandial may not be able to provide substantial relief to Imran Khan before his retirement, his efforts to support PTI leaders during challenging times have garnered appreciation from supporters. His legacy seems to be that of a judge who endeavored to assist PTI leaders in various matters. However, the Supreme Court's involvement has inadvertently made Imran Khan's bail a subject of controversy, even though it represents a classic case of bail following the suspension of a trial court's judgment.