Beleaguered Imran wins major relief in May 9 cases

LHC overturns physical remand of PTI founder

LAHORE:

In a major legal lifeline for imprisoned ex-premier and PTI founder Imran Khan, the Lahore High Court (LHC), while accepting various pleas from the former premier, on Thursday overturned his physical remand in a dozen new cases stemming from the May 9 riots of last year.

The "arrest" came just a day after former prime minister Imran Khan and his wife Bushra Bibi were rearrested in a new Toshakhana case, following their acquittal in the Iddat case, which had them on the brink of freedom.

A division bench of the LHC, headed by Justice Tariq Saleem Sheikh, also nullified the government's notification mandating the incarcerated leader's attendance via video link.

The bench raised multiple questions regarding the procedures followed in registering the FIRs, securing the remand of the accused, and conducting the investigation.

Justice Anwaarul Haq Pannun, the second member of the bench, queried whether the accused were asked to join the investigation and why the arrests were deemed necessary at this juncture, given that the cases had been registered over a year ago.

He noted the peculiar timing of the arrests as Imran's release seemed imminent which seemed to have prompted a scramble to secure his remand. These questions have to be answered, he remarked.

During a previous proceeding on July 24, the bench had directed the Punjab prosecutor general to present comprehensive details by July 25 regarding the FIRs filed against Imran Khan. This included information on the cases in which Khan was nominated, the number of submitted challans, and the progress of the investigations.

On Thursday, all Investigation Officers (IOs) with records of the cases linked to the May 9 riots appeared before the court.

Barrister Salman Safdar, representing Imran Khan, argued that Imran was named in three FIRs related to the May 9 riots in Lahore, for which his bails were dismissed.

Additionally, Imran was nominated in nine other FIRs through supplementary statements.

To which prosecutor general Punjab Syed Farhad Ali Shah argued that all FIRs registered in connection with May 9 have been placed before the bench and progress charts have been made by the IOs.

Justice Pannun remarked that Khan's petitions suggest he is arrested in new cases as soon as he secures bail in existing ones. Pannun also questioned the necessity of physical remand for a polygraph test, to which Shah responded that the investigation requires Khan's physical custody.

Justice Pannun remarked that the criminal act mandates initiating prompt proceedings after registering an FIR. However, he expressed his confusion as to why, in these cases, the accused is confined to jail without any proceedings being initiated against him.

The same situation occurs when the accused is not on pre-arrest bail, argued the Prosecutor General Punjab. Justice Pannun questioned the necessity of physical remand for the purpose of a polygraph test.

The prosecutor general responded, stating that the case could not progress without the accused's physical custody. He claimed substantial evidence exists to establish the accused's connection to the charges mentioned in the FIRs.

The prosecutor general pointed to numerous items on PTI's social media accounts and the Twitter account of the accused, Imran Khan, as evidence.

Justice Tariq Saleem Sheikh questioned the specific offences committed by Imran Khan in his tweets and the applicable laws.

The prosecutor general explained that PTI created a political narrative regarding May 9, and he read out some of Khan's tweets. Justice Tariq remarked that similar statements are being made by politicians even today.

Justice Pannun noted that judges are receiving more threats than the content read out by the prosecutor general. Justice Tariq inquired if Imran Khan had instructed anyone to attack in reaction to his arrest.

The prosecutor general responded by comparing it to someone inciting another to injure someone, arguing that the person cannot go unpunished.

Justice Tariq requested any statement where Imran instructed someone to injure another, to which the prosecutor general reiterated that a complete narrative was created against the chief of army staff.

Justice Pannun questioned if a political party's narrative, such as "give respect to vote" (vote ko izzat do), could be deemed incitement. He asked if Imran Khan had directed the attacks and led the protests. The prosecutor general provided some documents for the court to read to judge the narrative. Justice Tariq Saleem remarked that the judges needed solid proof rather than reading material.

The prosecutor general claimed that some officials recorded statements of Imran Khan giving directions to attack after his arrest.

Justice Pannun questioned why these officials did not inform their superiors immediately. The prosecutor general assured this point would be discussed at trial.

Justice Pannun asked why the remand was sought for recovery purposes and how this recovery would be ensured if the accused was not taken outside. The prosecutor general argued that the recovery of items, such as mobiles used by Imran Khan for tweets and WhatsApp messages, is impossible without physical remand.

Petitioner Imran Khan's counsel, Barrister Salman Safar, contended that unlawful procedures were adopted in registering FIRs and obtaining remand. He argued that Imran Khan was not asked to join the investigation, asserting that the prosecution's cases are baseless.

After hearing detailed arguments, the bench reserved its decision, later setting aside the 10-day physical remand issued by the ATC and the government's notification ensuring Imran Khan's attendance through video link.

 

Petition

 

The petition was filed through Barrister Salman Safdar arguing that on July 15, an anti-terrorism court (ATC) had granted Imran Khan's custody to police in a hearing, which he attended on a WhatsApp video call from Adiala Jail, Rawalpindi.

It stated that the order issued by the ATC was tantamount to misreading established principles of the law of remand and urged the court to set it aside for being unlawful.

The petition said the remand was unjustifiable as the sole allegation against the petitioner was of abetment and conspiracy and his participation in the investigation was not required as the FIR was silent about his specific role.

It further said the prosecution didn't arrest the petitioner for more than a year after May 9, 2023, even when his whereabouts were known to the police authorities as he was in the custody of the state at Adiala jail, Rawalpindi.

The petition said the FIR contained allegations related to public protests following Imran Khan's arrest and when the said offences for which he had been charged occurred, he was absolutely incommunicado as he was in the unlawful custody of the National Accountability Bureau (NAB).

The trial judge was informed that the petitioner's physical remand would not serve any useful purpose as he was allegedly only an abettor and was not present on the scene, the petition added.

 

Imran's custody transfer to army authorities

 

In another development, LHC's Justice Tariq Saleem Sheikh dismissed a plea requesting the court to restrain the concerned quarters from handing over the custody of PTI's founding chairman, Imran Khan, to the army authorities.

Justice Tariq heard the objection plea after the Registrar's Office raised an objection that the petition lacked Imran Khan's signature on the power of attorney.

Petitioner Imran Khan and Chaudhry Ishtiaq Ahmad Khan, President of the Insaf Lawyers Forum, filed the plea, making respondents of the Federation of Pakistan through the Secretaries of the Ministry of Law and Justice, Ministry of Interior, and Ministry of Defence; the Province of Punjab through the Chief Secretary; Inspector General of Police, Punjab; Inspector General of Police, Islamabad Capital Territory; Inspector General of Prisons, Punjab; Superintendent, Central Jail; and the Federal Investigation Agency through its Director General.

The petitioner's counsel contended that rumours had started circulating that Imran Khan would be shifted to the custody of army authorities in connection with the cases which are the subject matter of Writ Petition No. 45901 of 2024 and related matters.

Imran Khan had recently expressed apprehension, widely reported in the media, that plans were being made to try him for the events of May 9, 2023, through a court martial.

The petition argued that implementing these plans would be a travesty of justice and due process if the army authorities were to obtain custody of Imran Khan.

It would be against the law declared by a five-member bench of the Supreme Court of Pakistan in Jawwad S. Khawaja v. Federation of Pakistan, PLD 2024 SC 337, which held that the trial of civilians through courts martial was unconstitutional.

The petition highlighted that the Supreme Court found the manner in which the army authorities obtained custody of 103 detainees related to the events of May 9, 2023, was illegal.

The procedure laid down in law, especially Section 549 CrPC, was not properly followed.

The majority judgment authored by Justice Munib Akhter stated that an accused must be charged by a civilian court and then proceeded against under Section 549 CrPC, read with the Criminal Procedure (Military Offenders) Rules, 1970, for the army authorities to lawfully take custody. This procedure, the petition argued, has not been and cannot be followed for Imran Khan.

It was noted that ICAs against the said judgment are pending before a seven-member bench of the Supreme Court, which has suspended only some parts of the judgment.

Despite this legal position, there is a genuine possibility that the army authorities will take Imran Khan into custody.

The petition underscored that the brazenly illegal and unconstitutional treatment of Imran Khan by state authorities over the last two years, well-documented in the public domain and subject to judicial notice, makes this a real concern.

Such action, the petition claimed, would frustrate and undermine any relief granted to Imran Khan in Writ Petition No. 45901 of 2024 and related matters.

The petition respectfully prayed that the respondents be directed to ensure that Imran Khan's custody remains in civilian hands and subject to civilian court jurisdiction. It also requested that the respondents be restrained from handing over Imran Khan to the army authorities.