Toshakhana sword: Conviction matters amidst suspension

Despite the suspension of his sentence, the former Prime Minister Imran Khan's conviction in the Toshakhana case remains intact. This will prevent him from contesting the upcoming elections unless the trial court's judgment is overturned.

Faisal Siddiqi Advocate stated that Imran Khan's legal team made a significant mistake by not requesting the suspension of the trial court's August 5 judgment. They only requested the suspension of his sentence and his release on bail.

"If a request had been made to suspend the trial court's judgment, the Islamabad High Court (IHC) would have extensively discussed the case's merits. Moreover, if the trial court's ruling had been suspended, Imran could have contested the upcoming elections," Siddiqi explained.

Read Anticipation builds as IHC ruling looms

Hafiz Ahsaan Ahmad Khokhar Advocate highlighted that suspending sentences is routine in Pakistan's criminal justice system, particularly for cases with relatively brief jail terms. He cautioned against regarding the IHC's suspension of sentence as an extraordinary relief.

"The crucial aspect of this case is that the suspension of the sentence does not nullify Imran's conviction by the trial court, nor does it overturn his previous disqualification by the Election Commission of Pakistan (ECP) under Article 63(1)(p) and Article 63(H)," Khokhar elaborated.

Consequently, Imran Khan cannot contest elections or lead his party until both judgments are overturned by the high court.

"Until the ECP's order dated 21-10-2022 and the trial court's judgment dated 5-08-2023 are set aside, Imran Khan will remain disqualified for electoral politics in Pakistan under the provisions of Article 63(1)(p) and Article 63(H) of the Constitution," Khokhar added.

Interestingly, unlike the Supreme Court, the IHC's order did not question the conduct of the trial court judge, Hamayun Dilwar, or his judgment.

In an August 23 order, a three-member special bench of the Supreme Court noted that the trial court's final judgment appeared to defy the remand direction issued by the IHC.

The bench indicated that they would await the outcome of the IHC proceedings in the Toshakhana case before potentially taking up the case themselves.

PTI supporters are hopeful that Chief Justice of Pakistan (CJP) Umar Ata Bandial will provide relief to Imran Khan before his retirement.

Read more IHC suspends Imran's sentence in Toshakhana case, orders release

Abdul Moiz Jaferii Advocate pointed out clear flaws in the Toshakhana verdict, indicating that the suspension of the sentence was expected. He mentioned that the trial court had neglected the IHC's order requiring a hearing on the maintainability of the ECP's complaint.

"This decision adds to the politically sensitive judgments in Pakistan where despite evidence for conviction, trials are rushed and handled haphazardly, diminishing their legitimacy," Jaferii said.
Jaferii said former prime minister Nawaz Sharif could not explain his wealth while Imran Khan faced allegations of misappropriation. "Their electorates don't care. Neither could be properly prosecuted."

Usama Khawar Ghumman Advocate, who is a professor at LUMS Law School, noted the judgment's interesting aspect: it refuses to consider the case's merits, even superficially. It only acknowledges that Imran was given a short sentence.

"However, considering the legal aspects is the wrong perspective for these cases. They are not seen as purely legal; they are perceived as political. The law is shaped by what the establishment wants.

"It's not about the law; it's about politics. If the establishment wants a politician in jail, they will find a legal pretext to disqualify them from the electoral race," Ghumman concluded.

Following his conviction in the Avenfield case, the Supreme Court had barred Nawaz Sharif from leading his party. Some lawyers now assert that Imran Khan has also been disqualified as the PTI chairman due to his unchanged conviction.

The debate continues about whether CJP Bandial will offer any relief to the PTI and its leadership before his retirement. This largely depends on the support he receives from other judges, especially regarding cases that may unsettle "powerful circles."

Although Justice Bandial couldn't rescue PTI leadership during their toughest times, he has managed to sustain hope for their supporters in several critical matters over the past year.