Pakistan: Imran Khan’s Toshakhana sentence suspended but detention to continue in cipher case

The Islamabad High Court (IHC) suspended PTI Chairperson Imran Khan’s sentence in the Toshakhana case on Tuesday and ordered his release. 

A division bench of the IHC, comprising Chief Justice Aamer Farooq and Tariq Mehmood Jahangir announced the much-anticipated reserved decision.

However, a special court recently established to hear cases under the Official Sec­rets Act has directed the Attock Jail authorities — where the former premier is incarcerated — to keep Imran in “judicial lockup” and produce him on Aug 30 (tomorrow) in connection with the cipher case.

In a letter addressed to the Attock jail superintendent, Special Court Judge Abual Hasnat Muhammad Zulqarnain said: “That accused Imran Khan Niazi s/o Ikramullah Khan Niazi r/o Zaman Park, Lahore is hereby ordered for judicial remand in case FIR mentioned above, who is already detained in district jail, Attock.”

The case pertains to a diplomatic document which reportedly went missing from Imran’s possession. The PTI alleges that the cipher contained a threat from the United States to oust Imran from power. Proceedings against PTI Vice Chairman and former foreign minister Shah Mahmood Qureshi in the same case are also under way.

The much-anticipated order in the Toshakhana case was announced by a division bench comprising Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahan­giri on the former prime minister’s appeal against his prison term.

“The copy of the judgment will be available shortly … all we are saying now is that [Imran’s] request has been approved,” Justice Farooq said.

PTI chairman’s aide on legal affairs Naeem Haider Panjotha also confirmed the same in a post on X (formerly Twitter): “The CJ has accepted our request, suspended the sentence and said a detailed decision would be provided later.”

چیف جسٹس صاحب نے ہماری درخواست منظور کر لی،سزا معطل کرتے ہوۓ کہا ہے کہ تفصیلی فیصلہ بعد میں لے لیجیے گا.

— Naeem Haider Panjutha (@NaeemPanjuthaa) August 29, 2023

So far, it is unclear if and when Imran will be released from Attock Jail.

According to PTI Information Secretary Raoof Hasan, Imran’s arrest in any other case after the suspension of his sentence in the Toshakhana case would be “ill-intentioned and mala fide”.

“We are fortunate to be witnessing the re-scripting of Pakistan’s political and legal history,” he said, adding that “justice shall prevail”.

We are fortunate to be witnessing the re-scripting of Pakistan’s political & legal history. After suspension of @ImranKhanPTI sentence in the Toshakhana case, his arrest in any other fake & fraudulent case will be ill-intentioned & mala fide. Justice must prevail – and justice…

— Raoof Hasan (@RaoofHasan) August 29, 2023

On August 5, a trial court in Islamabad had convicted the PTI chief in the case filed by the Election Commission of Pakistan (ECP) that involved concealing details of state gifts and jailed him for three years. The verdict meant he was disqualified from contesting general elections for five years.

Imran had subsequently filed an appeal in the high court against his conviction. He had also approached the Supreme Court (SC) against the IHC’s decision to remand the case back to the trial court judge who had convicted him.

Last week, however, the SC had acknowledge “procedural defects” in Imran’s conviction but had opted to wait for the IHC decision on Imran’s plea. The court’s observations had drawn the ire of the Pakistan Bar Council, which said there should be no “interference” in matters pending before the subordinate judiciary.

A day ago, ECP’s counsel Advocate Amjad Pervaiz concluded his arguments and urged the court to issue a notice to the state to make it a respondent in the case. For his part, Imran’s lawyer Latif Khosa had said he had no objections to Pervaiz’s plea but had also expressed that the action was not required by the law.

Ahead of today’s proceedings, a large contingent of Islamabad police stood guard’s outside the IHC. The PTI legal team and Imran’s sisters Aleema Khan and Uzma Khan were among those who attended the hearing.

PTI demands Imran’s release today

Reacting to the development, the PTI demanded that Imran should be released from jail today. A video posted by the party on X showed lawyers chanting “riha karo [release him]” outside the IHC.

کون بچائے گا پاکستان عمران خان عمران خان اسلام آباد ہائی کورٹ کے باہر وکلاء کے نعرے #سرخرو_ہوا_کپتان_ہماراpic.twitter.com/ZrwOKV5fNC

— Tehreek-e-Insaf (@InsafPK) August 29, 2023

Speaking to Geo News, PTI Barrister Ali Zafar said: “The high court has fulfilled the requirements of justice. I’ll tell you why: 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 one’s defence are not allowed, there is no greater [example of a] mistrial.”

He further clarified that for now only the sentence has been suspended.

PTI lawyer Shoaib Shaheen, while talking to media outside the IHC, said Imran should be provided compensation for the number of days he was kept behind bars.

PTI leader Taimur Khan Jhagra said the nation expected Imran to be released from jail today.

“The ‘abuse of the law’ campaign against Imran Khan has sunk the country’s systems far enough. We cannot afford more,” he said on X.

The nation now expects Imran Khan to be released today.
The "abuse of the law" campaign against Imran Khan has sunk the country's systems far enough. We cannot afford more. https://t.co/1ZHwYMriJ7

— Taimur Saleem Khan Jhagra (@Jhagra) August 29, 2023

Senator Faisal Javed Khan posted verses from the Holy Quran expressing gratitude.

الحمد اللہ رب العالمین!

— Faisal Javed Khan (@FaisalJavedKhan) August 29, 2023

However, the PML-N expressed its displeasure towards today’s outcome, with party president Shehbaz Sharif saying that Imran’s sentence had been suspended and “not terminated”.

“The Chief Justice of Pakistan’s message of ’good to see you’ and ‘wish you good luck’ has reached the IHC,” he said, claiming that “everyone knew about the verdict before it was even announced”.

“This moment is a matter of concern for our justice system,” Shehbaz said. “If a clear message is received from the higher judiciary, what else should the subordinate court do?”

لاڈلے کی سزا معطل ہوئی ہے ختم نہیں ہوئی۔ چیف جسٹس کا "گُڈ ٹو سی یو" اور "وشنگ یو گڈ لک" کا پیغام اسلاآباد ہائی کورٹ تک پہنچ گیا۔ فیصلہ آنے سے پہلے ہی سب کو پتہ ہو کہ فیصلہ کیا ہوگا تو یہ نظام عدل کے لئے لمحہ فکریہ ہونا چاہیے ۔ اعلی عدلیہ سے واضح پیغام مل جائے تو ماتحت عدالت یہ نہ…

— Shehbaz Sharif (@CMShehbaz) August 29, 2023

In a post on X last night, former interior minister Rana Sanaullah said, “He [Imran] will not come outside [of the jail] — release is not possible, [he] will have to face the prosecution in other cases!”

وہ باہر نہیں آئیں گے — رہائی ممکن نہیں، دیگر کیسز میں Prosecution کا سامنا کرنا ہو گا!

— Rana Sana Ullah Khan (@RanaSanaullahPK) August 28, 2023

‘Suspension of sentence does not affect status of conviction’

Speaking to Dawn News, Barrister Asad Rahim said that typically the suspension of a sentence did not affect the status of the conviction. “Conviction means you have been held responsible in the eyes of the law. So only when you are completely acquitted in an appeal does it” end the disqualification, he said.

Rahim said that the detailed verdict was awaited to see whether the court had said anything about Imran’s disqualification. “If we keep this only to the suspension of the sentence, then it has no relation to disqualification,” he said.

When asked about the PTI lawyers filing another plea seeking a bar on arresting Imran in any other case, Rahim said that in the ex-premier had to face the cases registered against him before “blanket relief” could be granted.

He said that after a sentence was suspended, there were some procedural formalities which needed to be completed. “It is hoped and written in a sentence that if the person is not required in another case, he should be set at liberty, meaning he should be set free,” he said.

The lawyer said that the same should be done in Imran’s case but noted that there were many cases registered against the PTI chief. He said that the suspension of the sentence could be challenged in the apex court. “You can challenge this order, the state can come into action. But the next question will be how the SC considers its own precedents in reply,” he said.

PTI seeks bar on Imran’s arrest in other cases

Meanwhile, Imran’s legal team filed a fresh petition in the IHC today seeking directives to refrain authorities from further “illegal and unjustified arrest” of the former premier in any case filed against him after August 5, when he was convicted in the Toshakhana case.

The plea, a copy of which is available with Dawn.com, mentions the cipher case as one of the FIRs under which the PTI chief is seeking protection from arrest. The FIA had last week grilled Imran in the said case, which invokes the Official Secrets Act, for over an hour at the Attock Jail.

Filed through Barrister Salman Safdar, the petition named the state as a respondent and alleged that the cipher case had been filed against Imran “with malafide intentions” and termed it of “bogus nature”.

The plea stated that the “only remedy available to avoid unjustified, illegal and straightaway arrest” was by invoking Article 10 (safeguards as to arrest and detention) of the Constitution for the “protection of his fundamental rights and safeguards”.

The petition further said that the petitioner would “suffer irreparable loss in case he is arrested for another offence, which he has not committed”.

It further expressed the apprehension that the PTI chief’s “political adversaries and opponents would be able to further their nefarious designs and political ambitions in the absence” of the IHC’s “kind intervention”.

Prison conditions

In a separate development yesterday, the Attock Jail authorities submitted a report to the Supreme Court, detailing the facilities being provided to the ex-prime minister.

The report, submitted by the jail superintendent to comply with the SC’s August 24 order, states that meals were being provided periodically on the convict’s demand and that his washroom facilities have also been improved.

Previously, Imran’s wife, Bushra Bibi, had moved an application before the Supreme Court wherein she expressed apprehensions that her husband’s health was deteriorating fast, threatening his life.

The facilities provided to the ex-premier had been upgraded after Additional District and Sessions Judge Shafqat­ullah Khan submitted an inspection report based on his visit to the prison on August 15.

The report had declared that Imran’s “grave concern” regarding a lack of privacy around his prison cell’s toilet facilities in the jail due to a CCTV camera’s presence was “genuine” and pointed to a violation of prison rules.

Subsequently, Punjab Prisons Inspector General Mian Farooq Nazir had said Imran had been shifted to a new cell on August 19, where the washroom had been renovated with five-foot-high walls.

Toshakhana case

The case, filed by lawmakers of the then coalition government, was based on a criminal complaint filed by the ECP.

The case alleged that Imran had “deliberately concealed” details of the gifts he retained from the Toshaskhana — a repository where presents handed to government officials from foreign officials are kept — during his time as the prime minister and proceeds from their reported sales.

According to Toshakhana rules, gifts/presents and other such materials received by persons to whom these rules apply shall be reported to the Cabinet Division.

Imran has faced a number of legal issues over his retention of gifts. The issue also led to his disqualification by the ECP.

On Oct 21, 2022, the ECP had concluded that the former premier had indeed made “false statements and incorrect declarations” regarding the gifts.

The watchdog’s order had said Imran stood disqualified under Article 63(1)(p) of the Constitution.

Subsequently, the ECP had approached the Islamabad sessions court with a copy of the complaint, seeking proceedings against Imran under criminal law for allegedly misleading officials about the gifts he received from foreign dignitaries during his tenure as the prime minister.

On May 10, Imran was indicted in the case. However, on July 4, the IHC had stayed the proceedings and directed ADSJ Dilawar to re-examine the matter in seven days, keeping in view eight legal questions he framed to decide the maintainability of the Toshakhana reference.

The questions had included whether the complaint was filed on behalf of the ECP by a duly authorised person, whether the ECP’s decision of Oct 21, 2022, was a valid authorisation to any officer of ECP to file a complaint, and whether the question of authorisation was a question of fact and evidence and could be ratified subsequently during the course of proceedings.

Finally, on July 9, ADSJ Dilawar while ruling that the reference was maintainable, revived the stalled proceedings and summoned the witne­sses for testimony. The decision was subsequently challenged in the IHC.

On August 2, Judge Dilawar had ruled that Imran’s legal team failed to prove the relevance of his witnesses. He had warned the defence counsel to conclude the arguments, or else the court would reserve an order.

The IHC then gave a short breather to Imran, asking the judge to re-examine the jurisdiction and any procedure lapse in the filing of the complaint by the ECP. However, a day later, the trial court convicted the ex-premier.