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Dawn.com
August 5, 2023
After a few weeks of speculation as to when it would happen, former prime minister and PTI chief Imran Khan was arrested for the second time in three months from his Zaman Park residence in Lahore today. The arrest was made by the Punjab police following an Islamabad trial court’s verdict in the Toshakhana case, declaring the former premier guilty of “corrupt practices”.
Announcing its verdict, the trial court sentenced Imran to three years in prison and imposed a fine of Rs100,000 on him for concealing details of Toshakhana gifts under Section 174 of the Election Act. The PTI chief was not present when the verdict was announced by the trial court.
The fairness of the process is fundamental — it prevents arbitrary excesses and provides certain minimum safeguards. Justice must not only be done, but it must also be seen to be done.”
Hosain added, however, that Section 366(3) of the Code of Criminal Procedure states that a judgment shall not be deemed to be invalid ‘by reason only of the absence of any party or his pleader on the day.’
“The fact that the verdict was announced in the absence of Imran Khan in and of itself is not enough to declare the conviction invalid,” she said.
Having said that, the manner in which the Toshakhana case was conducted raises serious questions on the fairness of the trial, said Hosain.
“There is a right to appeal against this decision. An appellate court would need to determine whether a conviction, which was reserved without hearing the final arguments of the defence counsel, and without hearing defence witnesses, can hold the field. On the face of it, it is unjust.”
Commenting on the legal implications of the verdict, Hosain explained: “Under Article 63(1)(h) of the Constitution, an individual with a criminal conviction for an offence involving moral turpitude (carrying a sentence of at least two years) is subject to disqualification for five years after release.
The courts have held that ‘moral turpitude’ includes delinquent conduct involving misrepresentation, dishonesty, misappropriation, forgery, cheating etc. If Imran Khan’s conviction stands, he cannot be a member of parliament for five years after release.
“This is not the first time a politician has been ousted by the courts. Past injustices do not justify continued injustice.”
“In the 90s, we had the Constitution’s dissolution provisions that were used to pull down political opponents.
“Now we have disqualification laws backed by incomprehensible Supreme Court judgments and enabled by the establishment.”
“Technically the court should have ensured the presence of the accused, by use of force if necessary, and then announced the verdict. This method used today speaks to the extraordinary haste with which these proceedings have been conducted.
“A decision on the merits cannot be given without the accused being present, even though they can be declared fugitives or proclaimed offenders. The court cannot then proceed to adjudicate the merits of a criminal case and must declare the accused a proclaimed offender and then a decision on this offence is rendered.
“As a result of today’s decision, not only is Imran Khan convicted for three years, he is also disqualified for the relevant five-year period.”
“The judgement is wrong on many grounds,” he said. “Article 10A of the Constitution mandates that a fair trial and due process must be accorded to the accused, which doesn’t seem to have happened in this case.”
Referring to the Islamabad High Court judgement, which had a day earlier ordered the trial court to decide the matter again after re-hearing the case, Pansota termed it quite a difficult judgement to understand, “but even if we take it on face value, it [IHC] had asked the concerned judge to first decide the jurisdiction”.
He added, however, that the judgement had been rendered by the trial court on the same day. “In my view, time should have been given to the accused to produce his defence because a criminal trial without defence kills the very idea of ‘beyond reasonable doubt’.
“So in my view, the judgement, once challenged, will be struck down or at least suspended, to say the least. Even otherwise, any conviction which is five years or less is usually suspended on the very first day of hearing, so let’s see what happens.”
Lawyer Mirza Moiz Baig echoed Pansota’s thoughts. “The decision against Imran perhaps gives short shrift to the accused’s right to due process and procedural fairness,” he said.
“Earlier, the high court had directed the trial court to decide the question of maintainability on merit and then render a final decision on the merits of the allegations against Imran,” Baig explained. “Nonetheless, the fact is that the trial court disregarded the binding directions passed by the high court by failing to decide the question of maintainability and dismissing the accused’s application in this respect merely on account of his absence.
“Given our history of disqualifying elected representatives for extraneous reasons, it won’t be surprising if this decision too crumbles when challenged before the high courts once there’s a shift in the politics that underpins this decision.”
“The pertinent question now arises as to the standing of this verdict and its potential implications on Imran’s eligibility for public office.
The legal process allows Imran the opportunity to avail himself of the right to appeal before both the high court as well as the honourable Supreme Court in light of today’s proceedings. This avenue of recourse is akin to the approach undertaken by the Sharif family in the Avenfield case.“
According to Ayman, “choosing not to argue the case, and allowing it to be condemned unheard was likely to result in an unfavourable decision against Imran. However, the underlying ground remains alive and preserved, should it need to be raised again in the future.
“It is possible that this decision was a strategic choice made by Imran’s legal counsel, in order to be able to raise the same legal grounds in the future. While this verdict also means that Imran will not be able to take part in elections due before the end of the year, the predicament that the nation faces yet again is the political instability that arises, whereby the nation finds itself in a precarious situation with unpredictable outcomes and further challenges for the people of Pakistan to endure.”
‘Murder of justice’: Lawyers weigh in on ‘hasty’ verdict against Imran Khan
"This is not the first time a politician has been ousted by the courts. Past injustices do not justify continued injustice."Dawn.com
August 5, 2023
After a few weeks of speculation as to when it would happen, former prime minister and PTI chief Imran Khan was arrested for the second time in three months from his Zaman Park residence in Lahore today. The arrest was made by the Punjab police following an Islamabad trial court’s verdict in the Toshakhana case, declaring the former premier guilty of “corrupt practices”.
Announcing its verdict, the trial court sentenced Imran to three years in prison and imposed a fine of Rs100,000 on him for concealing details of Toshakhana gifts under Section 174 of the Election Act. The PTI chief was not present when the verdict was announced by the trial court.
Unfair, unjust
Lawyer Rida Hosain termed the trial unjust. “Article 10A of the Constitution guarantees an absolute and unqualified right to a fair trial and due process. The right to a fair trial includes an opportunity to defend the case against you, an adequate opportunity to prepare the defence, a right to a hearing, an independent and impartial judge etc.The fairness of the process is fundamental — it prevents arbitrary excesses and provides certain minimum safeguards. Justice must not only be done, but it must also be seen to be done.”
Hosain added, however, that Section 366(3) of the Code of Criminal Procedure states that a judgment shall not be deemed to be invalid ‘by reason only of the absence of any party or his pleader on the day.’
“The fact that the verdict was announced in the absence of Imran Khan in and of itself is not enough to declare the conviction invalid,” she said.
Having said that, the manner in which the Toshakhana case was conducted raises serious questions on the fairness of the trial, said Hosain.
“There is a right to appeal against this decision. An appellate court would need to determine whether a conviction, which was reserved without hearing the final arguments of the defence counsel, and without hearing defence witnesses, can hold the field. On the face of it, it is unjust.”
Commenting on the legal implications of the verdict, Hosain explained: “Under Article 63(1)(h) of the Constitution, an individual with a criminal conviction for an offence involving moral turpitude (carrying a sentence of at least two years) is subject to disqualification for five years after release.
The courts have held that ‘moral turpitude’ includes delinquent conduct involving misrepresentation, dishonesty, misappropriation, forgery, cheating etc. If Imran Khan’s conviction stands, he cannot be a member of parliament for five years after release.
“This is not the first time a politician has been ousted by the courts. Past injustices do not justify continued injustice.”
‘Convenient tool’
Referring to Imran’s potential disqualification from holding public office following his conviction, lawyer Hassan A Niazi termed Pakistan’s disqualification laws “convenient tools to get rid of troublesome politicians at the behest of the unelected.” He argued that this case, like those that came before it, has little to do with corrupt practices.“In the 90s, we had the Constitution’s dissolution provisions that were used to pull down political opponents.
“Now we have disqualification laws backed by incomprehensible Supreme Court judgments and enabled by the establishment.”
A hasty judgement
On whether the judgement would stand, given how it was announced in the absence of the accused, lawyer Abdul Moiz Jaferii said: “While it is the duty of the accused to present themselves in court and not the court’s duty to wait upon their arrival, the verdict is ridiculous for a whole host of other reasons.“Technically the court should have ensured the presence of the accused, by use of force if necessary, and then announced the verdict. This method used today speaks to the extraordinary haste with which these proceedings have been conducted.
“A decision on the merits cannot be given without the accused being present, even though they can be declared fugitives or proclaimed offenders. The court cannot then proceed to adjudicate the merits of a criminal case and must declare the accused a proclaimed offender and then a decision on this offence is rendered.
“As a result of today’s decision, not only is Imran Khan convicted for three years, he is also disqualified for the relevant five-year period.”
‘Politically motivated case’
For lawyer Muhammad Ahmad Pansota, “the mode and manner in which the judgement has been rendered reeks of vengeance, mala fide and a politically motivated case”.“The judgement is wrong on many grounds,” he said. “Article 10A of the Constitution mandates that a fair trial and due process must be accorded to the accused, which doesn’t seem to have happened in this case.”
Referring to the Islamabad High Court judgement, which had a day earlier ordered the trial court to decide the matter again after re-hearing the case, Pansota termed it quite a difficult judgement to understand, “but even if we take it on face value, it [IHC] had asked the concerned judge to first decide the jurisdiction”.
He added, however, that the judgement had been rendered by the trial court on the same day. “In my view, time should have been given to the accused to produce his defence because a criminal trial without defence kills the very idea of ‘beyond reasonable doubt’.
“So in my view, the judgement, once challenged, will be struck down or at least suspended, to say the least. Even otherwise, any conviction which is five years or less is usually suspended on the very first day of hearing, so let’s see what happens.”
Lawyer Mirza Moiz Baig echoed Pansota’s thoughts. “The decision against Imran perhaps gives short shrift to the accused’s right to due process and procedural fairness,” he said.
“Earlier, the high court had directed the trial court to decide the question of maintainability on merit and then render a final decision on the merits of the allegations against Imran,” Baig explained. “Nonetheless, the fact is that the trial court disregarded the binding directions passed by the high court by failing to decide the question of maintainability and dismissing the accused’s application in this respect merely on account of his absence.
“Given our history of disqualifying elected representatives for extraneous reasons, it won’t be surprising if this decision too crumbles when challenged before the high courts once there’s a shift in the politics that underpins this decision.”
The irony
Lawyer Ayman Zafar pointed out the irony in the situation, saying when Imran Khan was arrested for the first time on May 9, he had already surrendered himself to the court, while his arrest today came in light of a verdict rendered during his absence from court.“The pertinent question now arises as to the standing of this verdict and its potential implications on Imran’s eligibility for public office.
The legal process allows Imran the opportunity to avail himself of the right to appeal before both the high court as well as the honourable Supreme Court in light of today’s proceedings. This avenue of recourse is akin to the approach undertaken by the Sharif family in the Avenfield case.“
According to Ayman, “choosing not to argue the case, and allowing it to be condemned unheard was likely to result in an unfavourable decision against Imran. However, the underlying ground remains alive and preserved, should it need to be raised again in the future.
“It is possible that this decision was a strategic choice made by Imran’s legal counsel, in order to be able to raise the same legal grounds in the future. While this verdict also means that Imran will not be able to take part in elections due before the end of the year, the predicament that the nation faces yet again is the political instability that arises, whereby the nation finds itself in a precarious situation with unpredictable outcomes and further challenges for the people of Pakistan to endure.”
‘Murder of justice’: Lawyers weigh in on ‘hasty’ verdict against Imran Khan
"This is not the first time a politician has been ousted by the courts. Past injustices do not justify continued injustice."
www.dawn.com
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