Toshakhana reference: IHC rejects Imran Khan’s plea to transfer case to other court

ISLAMABAD: The Islamabad High Court (IHC) Friday rejected an appeal, filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran, for transfer of Toshakhana reference against him to another court.

The court said that as per verdicts of the high courts in similar matters, a case could only be shifted to an alternative court on the basis of solid reasons. The court ruled that Additional Sessions Judge Humayun Dilawar would hear the case.

However, the court declared the sessions court’s maintainability verdict in the case “void”. IHC Chief Justice Amir Farooq gave the court’s ruling on eight petitions of the PTI chairman after arguments by both parties — which were completed on Thursday, while the judgment was reserved.

The IHC also issued a notice against the court’s decision to reject the list of witnesses.

Regarding the district and sessions judge’s alleged Facebook post, the court directed the Federal Investigation Agency (FIA) to probe into the issue. The order said that the additional sessions judge Humayun Dilawar had also denied the social media posts associated with his name.

The “Federal Investigation Agency has rendered its report prima facie that the alleged posts on the Facebook account of Mr Humayun Dilawar, Additional Sessions Judge (West), Islamabad, Presiding Officer of Trial Court, are not authentic. Federal Investigation Agency is directed to inquire into the matter in detail and involve everyone concerned and furnish a report to Deputy Registrar (Judicial) of this Court within a fortnight,” the verdict read.

On October 21, 2022, the Election Commission of Pakistan (ECP) maintained that the former prime minister made “false statements and incorrect declarations” about the gifts and disqualified him under Article 63(1)(p) of the Constitution.

Subsequently, the election watchdog moved the sessions court to the federal capital. It sought criminal proceedings against the PTI chief for allegedly misleading the ECP regarding gifts received from foreign dignitaries while he was in office.

The PTI chairman was indicted in the case on May 10, while his petition to declare the case inadmissible was rejected by the court.

On July 4, the IHC overturned the same ruling and directed the sessions court to hear the petitioner and decide the matter within seven days.

On July 8, ADSJ Humayun Dilawar declared the Toshakhana case against Khan as maintainable, which was again challenged in the IHC.

Meanwhile, the trial continued at the court and was about to conclude soon.

During the proceedings, Khan’s lawyers also accused the presiding judge of bias on the basis of his Facebook posts and sought the transfer of the case.

On August 2, the trial court also rejected the PTI chairman’s witnesses, stating that he failed to prove their “relevance” in the criminal proceedings against him. It was also challenged in the high court.

Citing the repeated adjournments, sought by Khan during duration of the trial, the bench ruled that the case should be reheard, and there was no need for the case to be transferred to a different court.

“The order [...] shows that a number of opportunities were provided to the petitioner to address arguments, but adjournments were sought, hence the matter was decided in the absence of learned counsel for the petitioner.”

“...so the learned counsel for the petitioner is correct in saying that he has been condemned unheard and it would be only appropriate to remand the matter back to the trial court for decision afresh,” the order mentioned.

The order mentioned that it was not essential that the matter be sent to a different judge, emphasising that remitting the matter to a different jurist could be regarded as a matter of propriety and not a principle of law.

“However, in the instant case even remanding the matter to a different court is not mandated.”

The court also instructed Imran Khan to ensure that his lawyer would give arguments whenever the trial court would seek final arguments in the criminal case.

After the IHC verdict, Additional District and Sessions Judge (AD&SJ) Islamabad Humayun Dilawar directed Imran Khan to appear in the court in person on Saturday (today) in Toshakhana criminal proceedings case.

The court also directed lawyers for the PTI chairman to start arguments on maintainability of the Toshakhana petition.

Meanwhile, the Supreme Court (SC) Friday disposed of as withdrawn a petition of PTI Chairman Imran Khan, seeking stay over trial court proceedings against him in Toshakhana reference.

A three-member SC bench, headed by Justice Yahya Afridi, and comprising Justice Hassan Azhar Rizvi and Justice Musarat Hilali, heard Imran Khan’s petition. The office the other day reshuffled the bench replacing Justice Mazahir Ali Akbar Naqvi with Justice Hassan Azhar Rizvi.

Earlier, on August 2, the court had declined the stay to the PTI chairman over trial courts proceedings in Toshakhana case, but had postponed the hearing until August 4, so that he could approach the apex court again in case any adverse order was passed by the Islamabad High Court.

The court had also issued notice to the ECP for August 4.

On Friday, Khawaja Haris, counsel for the PTI chairman, and Amjad Pervez, counsel for the ECP appeared before the court.

Khawaja Haris informed the court that the IHC had reserved its verdict the other day on the petitions of former premier.

Justice Afridi asked the counsel as to whether the high court had granted a stay order on the petitioner’s plea. Khawaja Haris replied that the high court did not give a stay.

Justice Afridi noted that the trial court could not make a decision until a decision is made by the high court on the petitioner’s plea, seeking transfer of the case to another court.

Counsel for the ECP submitted that sub-section 8 of Section 526 of the Penal Code was very clear whereby, the trial court could not take a final decision until the transfer application was decided.

Justice Yahya Afridi asked the counsel for the PTI chairman about the current status of the pleas of the petitioner, pending in the IHC. Khawaja Haris replied that the high court heard four petitions the other day, adding that they had requested the court to transfer the matter to any other judge.

Justice Afridi asked Haris as to whether the high court granted any interim relief to the petitioner.

The counsel replied in negative, but informed the apex court that the IHC would possibly issue its decision on his petitions on Friday.

Speaking in Geo News programme Naya Pakistan, PTI Chairman counsel Ghauhar Ali said they had challenged two orders at that time. The first one was the decision of the court after remand on July 8, and the second was the order given on May 5.

“We are satisfied that the court accepted our contention the decision of the court was not according to the law”, Ghauhar Ali said. He said a case could not be remanded to the same judge when the judge had already disclosed his mind before giving his order and the High Court pointed out flaws in the legal decision. He further said the arguments given on Thursday were on a different point not on the plea for transfer of case.

“If the High Court had not remanded the matter, we had to start arguments on merit”, Ghauhar Ali said. He said they had reservations. They were not in a position for final arguments on Saturday (today), he said. They would request the court to give them a day, he told the programme host.

Meanwhile, the Election Commission of Pakistan (ECP) Friday issued its order in the contempt case hearing, held on August 02, and announced to charge-sheet the PTI Chairman Imran Khan on August 22.

Imran appeared before the Commission for the first time on July 25 in the contempt case. The Commission however did not indict the PTI chief on the request of his counsel.

The case was initiated in August last year. The Commission announced to indict him on August 2 but deferred it again.

The order, issued by a four-member bench, headed by Sindh ECP Member Nisar Ahmad Durrani, says, “Request for exemption of respondent from his personal appearance is in dissonance from law as the alleged contemnor/respondent is bound by law to appear in person on each and every date”.

“However, the learned counsel has assured that the respondent shall appear in person on the date fixed, therefore, on such assurance request is allowed. Learned counsel may get the relevant documents from Law Branch. Case to come up on 22.08.2023 for framing of charge against the respondent,” the order says.

Imran did not appear before the bench on August 2, which had to indict him.

Separately, the Election Commission adjourned the hearing in the case of PTI intra-party election till Tuesday.

A five-member bench — headed by the Chief Election Commissioner (CEC) Sikandar Sultan Raja — heard the matter. PTI’s Barrister Gohar Ali appeared before the Commission.