Toshakhana case: IHC sets aside trial court’s verdict over maintainability

ISLAMABAD: The Islamabad High Court (IHC) set aside the trial court’s verdict over the maintainability of Toshakhana case against Imran Khan, chairman Pakistan Tehreek-e-Insaf (PTI) and remanded the matter to trial court to decide it afresh.

The bench also turned down the chairman PTI’s appeal to transfer the case to another court and issued a notice for next week on a petition to restore Imran Khan’s right of defence in the Toshakhana trial.

A single bench of Chief Justice Aamer Farooq on Friday announced the reserved judgment on Imran’s petitions challenging the admissibility of the Toshakhana case, transfer of the case to another judge, and challenging the jurisdiction of the trial court.

The court was informed that the matter is pending for final arguments tomorrow, ie, 04.08.2023, the petitioner shall ensure addressing of arguments positively on the issue when the matter is fixed by Court for final arguments. The order said that the trial court shall address the issues raised in the referred petitions while deciding the matter.

The order said that Federal Investigation Agency (FIA) has rendered its report prima facie that the alleged posts on the Facebook account of Humayun Dilawar, Additional Sessions Judge (West), Islamabad presiding officer of trial court are not authentic. It, therefore, directed the FIA to inquire into the matter in detail and furnish a report to the Deputy Registrar (Judicial) of this Court within a fortnight.”

The bench stated that during the course of proceedings a transfer application under Section 526 CrPC was filed on the basis of bias of the judge presiding the trial court; primarily, on the ground that the charge was framed against the petitioner in haste and improper fashion and also the contentions of the petitioner in various applications have not been decided correctly.

Later, in the proceedings, an application was filed before the trial court for recusal in the matter on the basis of some alleged posts on the Facebook account of the presiding officer which showed his biasness.

Khawaja Haris Ahmed advocate submitted that the FIA report on the issue of fake posts on Facebook is a unilateral act and cannot form a basis for any further action.

The IHC pointed out that the impugned order of the trial court in Criminal Revision No108/ 2023 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 counsel for the petitioner so “the 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.”

However, the IHC chief justice maintained that it is not essential that the matter be sent to a different presiding officer or the Court. He emphasized that remitting the matter to a different presiding officer can be regarded as a matter of propriety and not principle of law.

The order also mentioned that on 25.07.2023 it referred the matter to FIA to probe into the issue of posts on the Facebook account of the Additional Sessions Judge (West), Islamabad.

However, the judge denied that the said posts were even made by him. The IHC order said that the FIA filed its report pursuant to the order of this court and according to it the authenticity of screenshots cannot be determined due to the non-availability of URL/link and the profile of the account of the judge. The FIA stated that the said URL has been thoroughly and technically examined/analysed and no post in question/screenshots were found.

The IHC bench observed that the counsel for the petitioner was correct in submitting that the referred report cannot unilaterally form the basis for taking any further action; “however, the matter needs to be probed further and inquiry is to be made by involving all those persons who without verifying the authenticity of the posts used the same to malign a senior Judicial Officer of Islamabad Judiciary, especially, when there is a categorical denial on his part that the referred posts are not from his account.”

Meanwhile, a three-judge bench of SC, headed by Justice Yahya Afridi, on Friday, dismissed Imran Khan’s petition to stay Toshakhana case as his counsel withdrew it.

Khawaja Haris, representing the PTI chief told the bench that the IHC had reserved its decision on the transfer request, adding; “We want the IHC to announce its verdict first”.

The counsel for the Election Commission of Pakistan informed the apex court that under sub-section 8 of Section 526 of the Penal Code, the trial court cannot take a final decision until the transfer application is decided.

Copyright Business Recorder, 2023