Imran out of electoral race, for now

IHC dismisses PTI founder’s application seeking suspension of his conviction in Toshakhana case

ISLAMABAD:

The capital’s high court has dismissed former prime minister Imran Khan’s application seeking suspension of his conviction in the gift repository case. This order has effectively eliminated the possibility of the PTI founder contesting the upcoming general elections scheduled for February 8, 2024.

A division bench of the Islamabad High Court (IHC) presided over by Chief Justice Aamer Farooq and comprising Justice Tariq Mehmood Jahangiri on Thursday unveiled its order on the former PM’s application requesting the IHC to modify its August 28 decision.

A trial court on August 5 convicted the PTI founder in a case related to misuse of the state’s gift repository—Toshkhana—and sentenced him to three years in prison. The Election Commission of Pakistan (ECP) on August 8 disqualified Imran as a lawmaker in view of his conviction.

The former premier approached the IHC against the trial court’s order and an IHC division comprising Justice Farooq and Justice Jahangiri on August 28 suspended his sentence.

Read more: Toshakhana ruling under scrutiny

The PTI chief later moved another application in the court seeking suspension of his conviction in the case as well. After hearing arguments of both the parties, the court reserved its order which was released on Thursday.

In its nine-page detailed order, the court noted that the ECP had already issued its August 8 ruling when the former premier moved the first application for suspension of his sentence. “However, [in the application] no reference was made to [the ECP notification] nor it was pleaded in the application that remedy of suspension of conviction be also granted,” it said.

The court stated that the first application was made under Section 426 of CrPC [Code of Criminal Procedure] and relief was sought which was granted. “However, an extraordinary relief is being sought [now] by way of a general provision of law—Section 561-A [of the] CrPC.”

Referring to different orders of the Supreme Court, the IHC said powers vested in high courts under section 561-A of the CrPC can only be invoked in extraordinary and exceptional circumstances where no other procedure or remedy is available or is provided by the code.

شکریہ محترم عامر فاروق صاحب
توشہ خانہ فوجداری کیس میں فیصلہ معطل کرنے کی عمران خان صاحب کی درخواست مسترد کردی تاکہ نااہلی برقرار رہے،اسے کہتے ہیں انصاف ہوتا ہوا نظر آرہاہے،ایک طرف درخواست پر 11 مہینے تک فیصلہ نہیں دیا جاتا اور دوسری طرف کاغذات نامزدگی سے پہلے درخواست خارج کر دی…

— Naeem Haider Panjutha (@NaeemPanjuthaa) December 21, 2023

Also read: IHC rejects Imran's plea to withdraw appeal against disqualification in Toshakhana case

“Section 561-A CrPC is only invoked where there is no specific provision under the code. Appellant [Imran], here, had invoked a specific provision but did not specifically pray in the same for suspension of the conviction,” it said.

The order said the Lahore High Court (LHC) has drawn distinction between suspension of sentence and conviction and emphasized that a specific prayer for suspension of conviction has to be made and exceptional circumstances are to be highlighted for which relief of suspension of conviction is sought.

“The appellant [Imran] did not do so in his application for suspension. “Plea under section 426 CrPC is akin to bail application; it is established law that in bail application, all grounds available to the applicant are to be agitated and if it is not done, it (is) tantamount to relinquishing those grounds.

“Second or subsequent bail applications are only maintainable if any fresh ground is available to the applicant. In the instant case, no specific plea was raised and subsequent application has been made to cover up the omission.

Read Will PTI find relief from Isa-led SC?

“Even no extraordinary or exceptional circumstances were mentioned in the earlier application though they existed in the form of [the ECP] notification dated August 8 when application was filed. In view of the foregoing, the instant application is not maintainable and is accordingly dismissed,” the order said.

Responding to the order in a sarcastic post on X, one of Imran’s counsel Naeem Haider Panjutha “thanked” IHC Chief Justice Aamer Farooq. “[You] dismissed Imran Khan's application seeking suspension of his sentence in Toshakahana case so that he may remain disqualified.

This shows that justice is not only being done but is also seen to be done. On the one hand, an application is not heard for eleven months while on the other hand an application is dismissed ahead of submitting [Imran’s] nomination papers.”

Earlier this month, IHC had rejected a plea by Imran Khan to withdraw his appeal against his disqualification in the Toshakhana case. PTI's lawyer Barrister Ali Zafar had informed the court that the former prime minister wanted to withdraw his appeal against the ECP’s notification regarding his disqualification to refile it in the LHC. Justice Farooq had, however, declined the request.