ISLAMABAD: The Islamabad High Court (IHC), Thursday, turned down a petition of Pakistan Tehreek-e-Insaf (PTI) founder Chairman Imran Khan seeking suspension of the trial court’s verdict in the Toshakhana case.
A division bench comprising Chief Justice Aamer Farooq and Justice Tariq Mahmood Jahangiri announced the verdict which it had reserved after hearing the arguments of Amjad Pervez advocate representing the Election Commission of Pakistan (ECP) and Sardar Latif Khosa, the counsel for Imran Khan.
In this matter, the petition was moved through Sardar Latif Khosa advocate, citing the District Election Commission, Islamabad as respondent.
The petitioner prayed to the court that instant application may be allowed and while exercising the powers under Section 561-4 C.P.C. the omission of not recording the contention of the learned Counsel for the petitioner with regard to the suspension of the impugned judgment dated 05.08.2023 may be rectified and “in consequence whereof, operation of impugned judgment dated 05.08.2823 may very graciously be ordered to be suspended/ stayed till final decision of the appeal in the interest of justice.”
The IHC bench stated in its written judgment that in appropriate cases, section 561-A CrPC can be invoked to correct error or prevent the abuse of process of the Court or to secure the ends of justice while “bare reading of the application for suspension filed by the appellant shows that it was for suspension of the sentence only.”
The bench mentioned that it is the stance of the counsel for the appellant that a verbal request for suspension of the order/ judgment was also made and that this Court had omitted to pass the order on the same inadvertently. It added that the order dated 28.08.2023 does not reflect any such request and categorically produces the prayer made in the application.
It continued that in order to proceed with the request of the appellant to modify the order dated 28.08.2023 and suspend the conviction, it is also to be seen that whether this Court does have jurisdiction under section 426 CrPC to suspend the judgment.
The court pointed out, “The bare reading of the judgment shows that the Supreme Court of Pakistan has categorically given the findings that conviction cannot be suspended.”
It further said that the main ground that has formed basis for seeking rectification, it seems, is because of the notification dated 08.08.2023. It said that the appellant faces the consequences of disqualification from being head of the political party.
“This Court was informed that challenge to the notification has already been made before the Lahore High Court by way of a constitutional petition in which notices have been issued. Moreover, notification was in the field when application for suspension was made; however, no reference was made to it nor it was pleaded in the application that remedy of suspension of conviction be also granted. A specific application for suspension was made under a specific provision of law, i.e., section 426 CrPC and relief was sought which was granted, however, now an extraordinary relief is being sought by way of a general provision of law i.e. section 561-A CrPC,” said the bench.
It mentioned that in Allied Bank of Pakistan versus Khalid Farooq (1991 SCMR 599), the Supreme Court of Pakistan observed that power under section 561-A CrPC can only be invoked in extraordinary and exceptional circumstances where no other procedure or remedy is available or is provided by the Code.
The IHC bench noted, “The above case law makes it clear that section 561-A CrPC is only invoked where there is no specific provision under the Code. Appellant, here, had invoked a specific provision but did not specifically pray in the same for suspension of the conviction.”
It also noted, “Decision in Abdul Kabir versus The State (PLD 1990 SC 823) is very categorical that conviction cannot be suspended; however, subsequent judgment of the Supreme Court in Makhdoom Javed Hashmi versus The State (2008 SCMR 165) alluded that it can be done; however, no reasons were given as to the reasons or circumstances in which it can be done.”
The court stated that in the instant case, no specific plea was raised and subsequent application has been made to cover up the omission. “Even no extraordinary or exceptional circumstances were mentioned in the earlier application though they existed in the form of notification dated 08.08.2023 when application for suspension of sentence was filed.”
Therefore, it concluded, “In view of the foregoing, the instant application is not maintainable and is accordingly dismissed.”
Copyright Business Recorder, 2023