Imran Khan won't be able to contest polls despite sentence suspension: Legal experts

Islamabad: Imran Khan's legal team made a significant mistake by not requesting the suspension of the trial court's August 5 judgment that led to his imprisonment in the Toshakhana corruption case, a leading advocate has said as the former Pakistan prime minister remains in jail despite a higher court suspending his three-year-sentence.

Despite the Islamabad High Court's order, the 70-year-old chairman of the Pakistan Tehreek-e-Insaf (PTI) party remains in Attock jail and cannot contest the upcoming general elections as his conviction and disqualification in the Toshakhana corruption case remain intact, according to legal experts.

Khan's legal team made a significant mistake by not requesting the suspension of the trial court's August 5 judgment.

They only requested the suspension of his sentence and his release on bail, Advocate Faisal Siddiqi commented.

"If a request had been made to suspend the trial court's judgment, the Islamabad High Court (IHC) would have extensively discussed the case's merits. Moreover, if the trial court's ruling had been suspended, Imran Khan could have contested the upcoming elections," Siddiqi was quoted as saying by The Express Tribune newspaper.

A division bench comprising Islamabad High Court (IHC) Chief Justice Aamir Farooq and Justice Tariq Mehmood Jahangiri on Wednesday suspended Khan's sentence and ordered his release from the jail in Punjab province.

Commenting on the IHC’s short verdict, advocate Hafiz Ahsan Ahmed said that the verdict is not unusual or unprecedented as there were bright chances of suspension.

“The verdict of suspension of sentence is never on the merit of the case. One of the grounds for the suspension might be the delay in the fixing of the main appeal in the high court for the hearing, whereas another ground is that the punishment is less than five years. In this case, it was three years” Ahmed explained.

The lawyer said that the cricketer-turned-politician's conviction and disqualification would remain intact, Geo News reported.

A trial court in Islamabad convicted and sentenced Khan to three years in prison on August 5.

Khan was sentenced on charges of unlawfully selling state gifts acquired by him and his family during his 2018-2022 tenure. He was also barred from politics for five years, preventing him from contesting an upcoming election.

According to noted advocate Faisal Siddiqi, Khan's legal team made a significant mistake by not requesting the suspension of the trial court's August 5 judgment.

They only requested the suspension of his sentence and his release on bail.

"If a request had been made to suspend the trial court's judgment, the Islamabad High Court (IHC) would have extensively discussed the case's merits. Moreover, if the trial court's ruling had been suspended, Imran could have contested the upcoming elections," Siddiqi explained.

General elections are scheduled to be held in Pakistan within 90 days after the dissolution of the National Assembly, which was prematurely dissolved on August 9.

However, the polls meant to be held within 90 days are likely to be delayed as the government has announced that the elections could take place only after a new census was completed and new constituency boundaries are drawn.

The exercise could take about four months to complete, meaning that polls may be delayed till next year.

The government's announcement had come on the same day when Khan was arrested after being sentenced to three years in prison for “corrupt practices".

Advocate Hafiz Ahsaan Ahmad Khokhar said the suspension of sentences is routine in Pakistan's criminal justice system, particularly for cases with relatively brief jail terms, the Express Tribune newspaper reported.

"The crucial aspect of this case is that the suspension of the sentence does not nullify Imran's conviction by the trial court, nor does it overturn his previous disqualification by the Election Commission of Pakistan (ECP)," Khokhar said.

"Until the ECP's order dated 21-10-2022 and the trial court's judgment dated 5-08-2023 are set aside, Imran Khan will remain disqualified for electoral politics in Pakistan under the provisions of Article 63(1)(p) and Article 63(H) of the Constitution," he said.

Pakistan Muslim League-Nawaz (PML-N) leader Azam Nazir Tarar also said only the sentence has been suspended whereas the conviction was still intact.

He said a three-year sentence was usually suspended within a few days or months and cautioned the PTI supporters against “celebrating too soon”.

Interestingly, unlike the Supreme Court, the IHC's order did not question the conduct of the trial court judge Hamayun Dilwar or his judgment. Dilawar convicted and sentenced Khan to three years in prison.

The Toshakhana case was filed by ruling party lawmakers in 2022 in the ECP, alleging that Khan concealed the proceeds from the sale of state gifts.

The ECP first disqualified Khan and then filed a case of criminal proceedings in a sessions court which convicted him and subsequently, Khan was sent to jail.

Khan is currently in Attock Jail following his arrest from his Lahore home.

The case alleges that Khan had “deliberately concealed” details of the gifts he retained from the Toshakhana - a repository where presents handed to government officials from foreign officials are kept - during his time as the prime minister from 2018 to 2022 and proceeds from their reported sales.

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

According to reports, Khan received 58 gifts worth more than Rs 140 million from world leaders during his three-and-a-half-year stint and retained all of them either by paying a negligible amount or even without any payment.