Iddat case: legal experts say main appeal holds key

KARACHI: Legal experts say that Thursday’s verdict rejecting pleas for suspension of sentences in the ‘iddat case’ is not a significant loss for Imran Khan and Bushra Bibi and that the main appeal -- overturning the conviction in itself -- is yet to be resolved.

On Thursday, a district and sessions court in Islamabad rejected the pleas seeking suspension of the sentences handed down to PTI founder Imran Khan and his wife Bushra Bibi in the iddat case. The hearing on the main plea related to the annulment of their conviction will start on July 2. Imran Khan and Bushra Bibi were sentenced to seven years in prison in February this year after a trial court found their nikah to be fraudulent.

Lawyers had weighed in on the iddat case from the very beginning, the majority looking at it as an affront to women’s right to dignity, privacy, and marital independence.

Talking to The News regarding Thursday’s verdict, Supreme Court advocate Basil Nabi Malik says that this decision was “expected” but that it appeared to “lack an incisive application of mind”. He says that, while the verdict “copiously regurgitates various legal precedents, in substance, it does not seem to address many of the obvious questions that needed to be answered.” According to Malik, although the court does not at this stage undertake “a deeper appreciation of evidence etc, it should certainly provide a tentative assessment.”

For Barrister Ali Tahir, the verdict is not a significant loss for Imran Khan and Bushra Bibi, since the main appeal is yet to be resolved. He is joined by both Basil Nabi Malik and lawyer Abdul Moiz Jaferii in his estimation regarding the importance of the main appeal. Malik says that “the main appeal hearing shall allow the counsels to make detailed submissions in relation to the deficiencies of the impugned decision, and they shall not be shackled by the limitations of an application under section 426 (which only allows the court to make a tentative assessment of the material before it).”

Jaferii too adds that “According to the reasoning offered here, one of the main factors influencing the judge was that the entire appeal is to be decided within a fortnight where he would consider the merits properly.”

This then is a “temporary setback”, says Barrister Tahir, who ventures that, “while a favourable outcome at this stage would have been ideal, this order does not prejudice the ultimate decision on the main appeal.”

But the Thursday order too in itself has drawn some criticism from legal experts. For example, Barrister Tahir feels that it “grossly misinterprets the precedents set by various high courts and the Supreme Court.” On being asked why, he explains that “the offence in question is bailable, and one of the most fundamental principles in criminal law is that time spent in prison cannot be compensated, even in civil democracies where states sometimes pay damages. Consequently, bail was a right for both appellants.”

This is particularly so for Bushra Bibi, adds Tahir, who points out that “our law and constitution explicitly protect positive discrimination. Women are granted special privileges for bail even in serious offences (known in law as falling within the ‘prohibitory clause’). Therefore, the sentence should have been suspended and bail granted.”

The issue lies in the bringing of the case from the get-go, say a significant number of legal experts. The extent of their argument can be seen in Jaferii’s summary of the Thursday order, which he says “like the case it concerns, is fittingly typed up in comic sans.”

For Jaferii, “this entire charge is a farce. It is a travesty that it was ever laid, and then taken to trial. It is a shame that it resulted in a conviction which today could not be suspended on a technical understanding of the law and procedure.”

Barrister Tahir too believes the case “should never have proceeded to trial, as it sets a poor precedent.” He explains the legalities involved: “In my view, this case lacks any substantive foundation. One need not even delve into the specifics of counting the days of ‘iddat’, as it has been consistently held that even if a marriage occurs within this period, it is deemed merely ‘irregular’ and not ‘illegal’. Section 496 of the PPC addresses a marriage ceremony where there is no lawful marriage, rendering this provision inapplicable.”

Barrister Tahir ends with a question, asking: “Should a woman be incarcerated because, in the mind of a disgruntled ex-husband, she does not observe ‘pardah’ to his standards?”