By Zebunnisa Burki in The News, August 30, 2023
KARACHI: Imran Khan’s Toshakhana sentence suspension by the Islamabad High Court on Tuesday does not translate into suspension of his disqualification, say legal experts.
Posting on X (former Twitter), lawyer Reema Omer says that “If a court suspends the sentence but conviction remains, disqualification remains too.” Omer cites case law (2019 SCMR 382) to make her point, quoting: ““Suspension of sentence would have no consequence on conviction of appellants for purposes of being disqualified to contest…elections for legislative assemblies”.
Speaking to Geo on Tuesday, Barrister Ali Zafar had said that this was a case that “should have been decided in four or five minutes as it was a mistrial case.” Explaining that this was “stage 1” of the case, he said that “for now the sentence has been suspended. In stage two, the matter will either be settled or sent back for a mistrial.”
Zafar welcomed the IHC verdict as having “fulfilled the requirements of justice”, saying that “Aside from the merits of the Toshakhana case — which are baseless — the trial judge did not allow Imran to submit witnesses in his defence. If witnesses in the defence are not allowed, that is a mistrial.” He added that if there has been a mistrial, “the case should not be sent to the same judge.”
In his comments to Geo, former law minister Azam Nazir Tarar called the verdict a “temporary relief”, adding that “this is only suspension of [Imran’s] sentence. Neither his punishment nor his disqualification has been affected.”
Talking to The News, high court advocate and former faculty at LUMS Hassan Abdullah Niazi further explains the IHC ruling: “The easy way to understand this is that the court order operates a lot like bail, not like an acquittal. The high court’s order isn’t unusual in this regard, as it is common for such an order to be passed on grounds such as the period of imprisonment being for a short duration (in this case it was three years), or if there is a chance of considerable delay in the hearing of the main appeal. The case therefore doesn’t go back to trial. Imran Khan will now have to wait for the decision on his main appeal against his conviction.”
Does Imran Khan then still stand disqualified? For Supreme Court advocate Zahid F Ebrahim, the verdict by the IHC “means suspension of jail term only. The conviction itself is untouched. Therefore the consequence of conviction — disqualification — remains in the field.” He explains that the “appeal in the IHC will be heard at length at a later date to decide on the challenge to the judgment of Justice Dilawar. The appeal may be heard by any bench of the IHC at the relevant time.” Lawyer Abdul Moiz Jaferii concurs that Imran “remains disqualified until the conviction is overturned after a detailed hearing.”
Hassan A Niazi explains it thus: “The court has not decided his appeal on merits and found that the trial court’s verdict should be set aside. Until it does, his conviction and disqualification will remain in effect.”
For Lawyer Taimur Malik, the “Islamabad High Court’s judgment doesn’t contain anything extraordinary and simply relies on existing case law presented by lawyers highlighting that bail should generally be granted in cases of short sentences. The judgment doesn’t discuss the conduct of the trial judge or the other potential issues with the lower court’s judgment.”
To the question whether Imran will be released or not, the answer by most legal experts is that, while he has been granted release by the IHC verdict, a release would be unlikely. Ebrahim says that “since [Imran] is wanted in other cases where he does not have bail he is not likely to be released from prison”, adding that the “Official Secrets Act case will be a formidable challenge for Imran and his lawyers. Won’t be as easy as the Toshakhana case.”
Hassan A Niazi also does not see a release as too likely, noting that “Given how we have seen law enforcement and the state machinery operate over the past few months, I am not optimistic about Imran Khan’s chances of being released unless the judiciary takes a very firm stance on this constant cycle of arrests.” On what may come next for the PTI, Supreme Court advocate Salman Akram Raja tells The News that the PTI would likely be asking for a bail now in the cipher case: “Once they get a bail there then they can move for the grant of post-arrest bails in other cases where bails have been cancelled.”
When asked if the PTI seeking bails for Imran in other cases is a normal course of events, Hassan A Niazi is of the view that “since it is clear that there is a concerted effort to keep Imran Khan imprisoned one way or another, I think he is well within his rights to turn to the courts for such relief on due process grounds as long as the courts believe he is willing to participate in any investigation and cooperate with law enforcement.” Malik sees Imran’s remand in the cipher case as “unsurprising… as has unfortunately become the norm in political cases in recent months. However, it is surprising how a judicial remand was granted by the judge without Imran Khan being presented before his court as is generally required.” Jaferii adds to this that while it may not be quite such a normal routine for the PTI to seek bails in other cases, what is also not normal “is the practice of [how the] state [is dealing] with PTI leaders [at this moment].”
https://www.thenews.com.pk/print/1105053-news-analysis-does-imran-s-disqualification-stand
