Farooq Naeem—AFP
The Islamabad High Court (IHC) on Friday declared as “null and void” a session court’s verdict declaring as maintainable for criminal proceedings the Toshakhana reference filed by the Election Commission of Pakistan (ECP) against PTI Chairman Imran Khan.
Announcing his ruling, IHC Chief Justice Aamer Farooq directed the session court to decide the matter again after hearing the case anew. A separate plea of Khan to transfer the case to another judge was rejected, while a notice was issued for next week on a plea to restore the PTI chief’s right of defense. Earlier this week, the sessions court had rejected Khan’s right of defense after declaring the list of witnesses provided by his counsel as irrelevant to the present case.
Citing cases against former prime ministers Benazir Bhutto and Nawaz Sharif, the court ruled that “the fact that the presiding officer has decided the matter in a particular way is no bar for him to hear it again and reach to a different conclusion if the dictates of justice so requires.” It also set aside Khan’s lawyer’s claims that he had been condemned unheard, observing that “a number of opportunities were provided to the petitioner to address arguments but adjournments were sought.”
“The matter is remanded to the trial court for decision afresh,” read the detailed order of CJ Farooq, which had been reserved a day earlier. It noted the IHC had been informed the case was fixed for final arguments today. “The petitioner shall ensure addressing of arguments positively on the issue when matter is fixed by court for final arguments. The trial court shall address the issues raised in the referred petitions while deciding the matter,” it added.
On transferring the case, the ruling noted it should be allowed only in exceptional circumstances where the ground urged or is based on strong reasons or evidence. “It was also observed that if the transfer is made in routine or casual manner that would destroy the dignity of the Court and would be a ploy by a party to drag the matter and malign the judiciary,” it read. “There is ample case laws that where it is apparent that perception of bias/impartiality is being created by a litigant or a counsel to divert a case from a Bench which he perceives as unfavorable to a Bench which he perceives as more favorable,” it observed, adding that to “succumb to such tactics” would suggest judges could be cowed into submission and erode public confidence in the courts. It also elaborated that a trial being conducted expeditiously did not show any bias on the part of the judge.
The court order also directed the Federal Investigation Agency (FIA) to inquire into posts allegedly uploaded on Additional District and Sessions Judge Humayun Dilawar’s Facebook account, which the PTI had claimed “proved” his bias against Khan. In its order, the IHC has instructed the FIA to involve everyone concerned in the matter and furnish a report to the IHC deputy registrar within two weeks. The FIA had, earlier, submitted a report in court stating it did not find any evidence of the alleged posts on the judge’s Facebook account.
Judge Dilawar’s court had, last month, declared the ECP reference against the PTI chief as maintainable after an earlier challenge by Khan. The former prime minister’s lawyer had subsequently challenged the decision before the IHC a second time.
Toshakhana case
Despite charges being framed against Khan on May 10, proceedings in the Toshakhana case were suspended after the IHC stayed proceedings and directed Judge Dilawar to re-examine the matter within seven days in light of eight legal questions that had been framed to decide its maintainability. However, when the sessions judge took up the matter, Khan’s counsel refused to appear in the court on three consecutive occasions, with the judge eventually ruling that it was maintainable. As a consequence, the stalled proceedings were revived, with the court recording witness testimonies and proceeding toward concluding arguments today (Friday).
The case, filed by ruling party lawmakers, is based on a criminal complaint filed by the ECP. It alleges Khan “deliberately concealed” details of the gifts he retained from the Toshaskhana during his time as prime minister, as well as the proceeds from their reported sales. In its ruling, the ECP had declared Khan stood disqualified under Article 63(1)(p) of the Constitution and approached the Islamabad sessions court to initiate proceedings against him under criminal law.
Earlier on Friday, the PTI chief had withdrawn a petition filed before the Supreme Court seeking a stay on proceedings, after the apex court said the trial court cannot reserve its verdict until the IHC had ruled on his transfer of case plea.