KARACHI: Legal experts say Imran Khan and Bushra Bibi’s lawyers have a chance on appeal in the Toshakhana case if they can prove their right to cross-examination was sped through. They are also unclear on the reasoning behind an accountability court awarding PTI founder Imran Khan’s wife Bushra Bibi a 14-year jail sentence with rigorous punishment.
On Wednesday, an accountability court in Islamabad sentenced Imran and his wife both to 14 years in jail with rigorous punishment in the Tohsakhana reference filed by the National Accountability Bureau (NAB).
Speaking to The News, PILDAT President Ahmed Bilal Mehboob says that, without having read the detailed judgment, he cannot “understand why Bushra Bibi has been sentenced.” He adds that, per his understanding, “apparently Bushra Bibi acted on behalf of her husband and if there was some wrongdoing, Imran should be held to account — but a detailed verdict may make it clear why she has been sentenced.”
For Supreme Court advocate Basil Nabi Malik and lawyer Abdul Moiz Jaferii, it is not clear why Bushra Bibi has been added to the sentence. Barrister Ali Tahir is also surprised, saying: “There is no sense in convicting Bushra Bibi, who was only the first lady.”
According to media reports filed at the time, the Toshakhana reference alleged that Bushra Bibi “in connivance with Imran Khan, violated clause-1 of the procedure by not depositing [a] gift at Toshakhana prior to its retention.”
Responding to The News’ request for his view on the verdict, Barrister Ali Tahir says that he is “surprised at the verdict. Even though the full judgment is not out yet, one cannot even imagine an accountability court to conclude a NAB case within one month. It is not possible even in a developed legal system such as the UK or US to conclude such a case in one month, then how can Pakistan’s frail legal system be of such capability?”
For Basil Nabi, the issue lies in the perception of fairness or unfairness of trial. He says that, although the detailed verdict “will provide more details as to how strong or weak the grounds of conviction are in relation to the accused, it is safe to say that questions regarding the fairness of the trial itself are not going away anytime soon” Per Malik, given the controversies regarding the “ability of the accused to cross-examine the prosecution witnesses, bring their own witnesses, as well as the ability of their lawyers to readily represent them”, this makes “a perfect recipe for a challenge on the touchstone of due process infringements and the non-provision of a fair hearing, amongst other things.”
Explaining that he cannot comment on the legal merits of the procedure “because this case was conducted in a jail where the reportage was sparse”, Jaferii adds that he however “can say that this is a farce which would ordinarily have at best attracted a tax irregularity notice from the FBR. Their actions concerning the gifts are only slightly different from what every premier before them has done and admitted to doing without even feeling any sense of wrong.”
This is a counter-argument that has been in play since the filing of the Toshakhana reference. Advocate Hafiz Ahsaan Ahmed Khokhar spoke with Geo News on Wednesday about the verdict. According to him, the problem arose “when gifts were given [to Imran as PM], but were not deposited in the Toshakhana and then also undervalued. When the investigation revealed all this, the counter-argument that was used was that this was done previously as well. To date, there has been no answer over why the gifts were undervalued the way they were.”
With the PTI legal team already having decided to go into appeal, most lawyers agreed that this is the next step in the case. Shortly after the verdict, lawyer Mustafa Ramday told Geo News that Imran and his wife both have the right to appeal: “Their first forum is the appellate stage which is the high court and if they are not satisfied with the high court decision, they can then also go to the Supreme Court.” Explaining that “the appeal succeeding is of course not a matter of right”, Ramday added that the lawyers for Imran and Bushra Bibi “will have to establish a few things. First, whether there is a legal flaw in the substantive decision. Second, whether the fair trial procedure was not adhered to.”
Can the appeal be successful? According to Khokhar, “If in the Islamabad High Court, they manage to prove that their right to cross-examination was closed in haste and there were violations of Article 10A, then there is a bright chance that the judgment is reversed and the position will go back to the right of cross-examination. But if the argument is based on a political narrative, then it will be difficult to suspend the judgment.”
Mehboob recalls that where Imran and Bushra Bibi’s lawyers will have two chances to appeal the decision: the high court and the Supreme Court, this was not the case in Nawaz Sharif’s case regarding the Panama Papers “when the Supreme Court directly took up the case under Article 184/4 — without giving any chance of appeal to Nawaz.”
“The quantum of sentence does not make any sense whatsoever” either, says Barrister Tahir who finds the 14-year sentence to be “utterly weird” and “beyond any understanding whatsoever — this was not a case of manslaughter.” What exact flaws does he see in the process? Barrister Tahir says: “For the second day in a row, the accused’s right to cross-examination was barred and the Section 342 statement was hurriedly recorded.”
For readers unfamiliar with it, the Section 342 statement is an accused’s explanation to the court and is supposed to be recorded with procedural safeguards, including giving the accused reasonable time to ponder and come forward with an explanation.
Barrister Tahir says that since in his view “for all practicality, no such statement has been recorded, this is a fit case for suspension of sentence on the first date of hearing but this might not be possible until the cut-off date, being the 8th of February 2024, unless the appeal comes up before the high court with the same ‘supersonic speed’ with which the accountability court decided the case.”
Mehboob sees the verdict also in its political consequences. He thinks that it will “further demoralise Imran’s supporters except those who are highly committed diehard Imran supporters. The verdict will further try to drive home the point that there is no chance of him coming out of prison any time soon and no chance for the PTI to come to power and therefore around 40 per cent voters who generally side with the winning horse may vote for other parties even if they like the PTI.”
