Suspension of trial court verdict: ECP urges IHC not to decide IK’s petition without hearing state

ISLAMABAD: The Election Commission of Pakistan (ECP) has asked the Islamabad High Court (IHC) not to decide Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan’s petition for suspension of trial court judgment and grant of bail without hearing the State.

A division bench of the IHC comprising Justice Aamir Farooq and Justice Tariq Mahmood Jahangiri on Thursday heard the former prime minister Imran Khan’s petition against Additional District and Session Judge Humayun Dilawar’s judgment dated 5th August 2023.

A three-member of the Supreme Court Wednesday (Aug 23) asked the IHC to decide the appeal by Thursday (Aug 24) so that it will take up Imran Khan’s petition against the IHC’s order.

Amjad Pervaiz, representing the ECP, argued that the accused is in the custody of the State, therefore, the petitioner should have made the State as respondent, which they have not done, while the High Court also has not issued notice to the State. He urged the court not to decide the appeal without hearing the State.

He referred to numerous judgments of the apex court, which say that the State should be made a party in the appeal which is filed by the accused against his conviction. He said there are two types of appeals – one, against the acquittal, in which, a notice to the State is not necessary. However, in the appeal to set aside the conviction, the State must be heard by a division bench of the High Court as per the law.

Justice Farooq remarked that the ECP is made a party in this case, so why notice to the State is mandatory. Amjad replied the ECP is the complainant, adding that presently, the accused is in custody of the State (Punjab jail). The IHC chief justice questioned what the State would argue in this case, while it was not a party before the trial court. Amjad responded that the State has the right to defend conviction, adding it also has the right to present its point of view.

He contended that even in the bailable offences the accused cannot claim release on bail or suspension of sentence as right, but it is the discretion of the appellate court (High Court). He further said the Court has to exercise this power (discretion) in light of the law and the judgments of the Supreme Court.

Justice Aamir asked the counsel do he meant to say that in a three-year sentence, it is not the right of the accused to get bail or sentence is suspended, but it is the court’s discretion. Amjad replied that discretion could be exercised in accordance with the law and the apex court’s judgments.

The ECP lawyer contended he is not saying not to dismiss the appeal, but before deciding of appeal, make decision on the preliminary objections which he has raised. The question raised is more fundamental, he added.

Justice Jahangiri questioned there is no FIR registered in this case, then why notice to the State is mandatory? Amjad said even in the private complaint when the accused is sentenced then in appeal the notice to the State is necessary. He then argued on the “short sentence”. He said there is a Supreme Court judgment, delivered by a five-member bench in 1992 that before serving of a six-month sentence by the accused the court cannot hear his appeal for rejecting sentences, for bail or suspension of the sentence.

He said the five-member SC bench’s judgment is intact and till date has not been overruled. He said if the petitioner’s counsels have SC judgment, delivered by more than five judges on the issue then he has no case. He said the legislature has given a period of six months for filing appeal. After serving a six months sentence it becomes the right of the accused to claim bail or suspension of his sentence, but the Courts not only have to see the conduct of the accused but also its counsel before granting bail or suspending the sentence.

He sought three more hours to conclude his arguments, saying the petitioner’s counsels had argued six grounds; therefore, he needed more time. The IHC, therefore, adjourned the hearing until today (Friday) 11:30 am.

Earlier, Sardar Latif Khosa, Salman Akram Raja, and Barrister Gohar Ali Khan argued the appeal of Imran Khan. They raised issues of procedural lapse, limitation, and that the defence counsel was not provided to make final arguments before the final order of the trial court.

Khosa said under the Elections Act, 2017, the matter first placed before the magistrate, who after examining the case file decides whether to send it to the Sessions Judge or not. He said according to the Act, 120 days have been prescribed to raise objections on the statement of assets and liabilities of MNAs filed before the Election Commission annually of previous years. He said Imran Khan filed wealth statement from 2018 to 2020, but the objections were raised in 2023. He said the trial court’s judgment is flawed.

Copyright Business Recorder, 2023