Guest column By Barrister Ameer Abbas Khan

Is it true that people hit below the belt when they are losing out or don’t have enough strength to face their opponents?

If it’s true, wouldn’t the attempt of Arsalan Itikhar Chaudhry to seek Imran Khan’s disqualification on the basis of  ‘allegedly his other daughter’ fall in the same category? Unless it’s being used as a time-sensitive pressure tactic, which politicians use often.

Various other parties have raised this subject before but they didn’t get their desired result; so, for Arsalan Iftikhar Chaudhry to come and bring up this issue again does raise questions as to his motives.

Having said that, it would not be easy for Arsalan Iftikhar Chaudhry to prove that Imran Khan failed to disclose his ‘daughter’ in his nomination papers.

The first thing that Arsalan would need to establish is that Tyrian indeed is the daughter of Imran Khan. In this respect, people apparently rely on an ex parte Judgment of American Court against Imran Khan. However, in my opinion, this ex parte judgment would be inadmissible in Pakistan Courts as per Rule 13 Civil Procedure Code 1908.

So, this judgment being out of court, what other evidence could there be to actually prove that Imran Khan is the father of Tyrian.

Even if it is established that he is indeed the biological father of Tyrian, my understanding is that since she is alleged to be born outside the marriage then according to Pakistani and Islamic laws he is still not the legal father and has no legal relationship whatsoever with the child.

Since it is a sensitive issue, a relevant part of the judgment in the case of Roshan Desai V Jahanzeb Niazi PLD 2011 Lahore 423 is quoted here to avoid any doubts:

The question of a minor’s custody has to be addressed by reference to his status under the applicable Pakistan Law, more appropriately the Islamic Law, which does not recognize a common law marriage or partnership as a valid marriage with the result that a child born to parents, having a common law marriage, is born outside marriage and cannot be regarded as a legitimate child. Under Islamic Law, the father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed. Such a father has no legal relationship whatsoever with the minor so much so that the child does not inherit from his father or vice versa which is otherwise the case of a legitimate offspring.”

Even keeping merits of the case aside, Arasalan Iftikhar Chaudhry would have difficulty in finding right forum where to raise this issue.

Ideally, this issue could have been raised before the Election Tribunal for which the deadline has already been missed and even if one could still challenge this issue before election Tribunal, I am not too sure if Arasalan Iftikhar could have brought this issue before the Election Tribunal in the first place on the basis that he was not the resident of Imran Khan’s constituency nor he contested election against him.

And in order to invoke the jurisdiction of High Court or Supreme Court to deal with this sort of matter, one has to have a real strong case that does not require further investigation and in light of above discussion it can be safely said that its not the case with the accusation of Araslan Iftikhar Chaudhry against Imran Khan.

Having clarified the legal position as per my understanding, I believe that such actions “where personal matters of a person are attacked so casually” must be discouraged by all sections of society.

And Arsalan Iftikhar Chaudhry does not need this type of case anyway; he could bring a case of defamation against Imran Khan.

An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.

  • Saeed Wattoo

    The columnist, in my view, has not been able to do justice with the topic he chose to write on. The reasons of this impression are as under:
    1. The relevant judgment of the American court has not been quoted for better understanding of exact finding about IK;
    2. Mere ex parte nature of judgment does not discredit it. If IK was given opportunity of defence during the course of proceedings and finally copy of the order was delivered to him then two conclusions emanate from it: that IK deliberately avoided the proceedings and that he consciously opted not to file appeal. Both inferences do not help the case of IK;
    3. The matter may not land in a court of law. Instead, clause (2) of Article 63 may be invoked by filing a reference to the Speaker NA. In this eventuality the matter would finally land in the ECP;
    4. The judgment quoted by the columnist bears no relevance to the matter arising as to IK’s being a righteous Muslim etc. The judgment quoted only says that an illegitimate child cannot be considered as legitimate for the purposes of rights arising as being son, and it does not say that a father of an illegitimate child gets a clean chit of his morality and character.

    • Ameer

      Saeed, thank you for your comment and I will try to clarify the points you have raised in the same chronological order:

      1. There could be many dimensions on the basis of which one can write on this subject. Personally, I restrained myself strictly to the legal issue relating to Imran Khan allegedly failing to disclose his ‘daughter’ in his nomination papers as specified in paragraph 4 of the column. In this respect, the finding of American Court that Imran Khan is the father of the girl is acknowledged in paragraph 5.

      2. Its for courts to determine whether or not to discredit the ex parte judgement, and I have merely expressed my opinion in paragraph 5 that it would be inadmissible in Pakistan Courts on the basis that its a very serious and sensitive matter and therefore relying solely on ex parte judgment, particularly where people raising objections were not party to the original case, would not meet the test of natural justice. You are entitled to your own conclusions but in order for Courts to drawn a conclusion they have have to consider all principles of justice. Furthermore, in paragrpah 7 its even assumed for the sake of argument that Imran Khan indeed is the biological father of the girl but even then its explained in the column that since he is not the legal father therefore he did nothing nothing wrong in failing to disclose her in his nomination papers. The moral aspect of one being sagacious and righteous is a separate issue but that requires a determination from court as well.

      3. In order to invoke Article 63(2) of the Constitution of Pakistan, it still has to be established that Imran Khan stands disqualified by virtue of Article 63(1) of the Constitution and in particular 63(1)(h) that he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of 5 years has elapsed since his release. Neither such conviction nor any sentence is recorded against Imran Khan.

      4. The judgement is quoted to verify the point that Imran Khan would not be a legal father even if he is proved to be a biological father of a girl born outside the wedlock. Yes, that does not take away the morality aspect completely but even that needs to be proved and forum where Arsalan Iftikhar could do it is discussed in paragraphs 10, 11 and 12.

      Just to highlight that Articles 62 and 63 have their own ways to operate and it requires a whole section of writing on them alone.

      I hope this clarifies the issues!

  • Rehmat Ullah Kundi

    I agree with Saeed Wattoo . This evidence alone of illegitimate child should be sufficient to invoke article 63. Cases related to defamation in Pakistan has no precedents. This may be a test case for the courts to ponder upon these matters.

    • Ameer

      Thank you for your comment and my above reply to Mr Saeed Wattoo’s comment may clarify the issue a bit more.

  • Saeed Wattoo

    Relevance and admissibility of a proof are two distinct and sepatate questions of law. Section 13 of CPC 1908 states that, subject to the exceptions given therein, a foreign court’s judgment shall be conclusive prove of the matter upon which it is rendered provided the litigant parties are the same or the titles of the litigant parties is the same. But in pressing into service of section 12 it must be borne in mind that the matter that ECP or a court of law shall be seized of shall not be the one between Sita White and IK. Thus the defence of bar of section 13 of CPC can be brushed aside as irrelevant because the title and parties shall not be the same. Further, claim of existence of the judgment under section 13 can be made by IK or Sita White. Others can not do this. IK shall never make such a claim.

    The matter of relevance and admissibility of judgment shall be decided on the touchstone of Articles 54 to 57 (especially 56) of the Qanun-e Shahadat Order, 1984. There is no doubt that a judgment of a Los Angeles court on the fatherhood of IK exists. There is no doubt that IK had not appeared for DNA test and had eschewed joining the proceedings. Given the judgment, the onus is on IK to prove otherwise.

    Two fundamental options before the adjudicators in the matter would decide the fate of case: one, whether the court shall allow the same leverage of technicalities in an election related dispute as it does in adjudicating and enforcing the rights disputed between private litigants; two, shall the court order a DNA test of IK and send it to the country of residence of Tyrian for comparison.

    Since matter of personaI respect and dignity of IK is to be balanced against the Constitutional requirements of Article 62 & 63, the choices are tough ones to make.

    In my view there is no doubt that the judgment in question is directly relevant to the matter of qualification or otherwise of IK. Is it conclusive? Perhaps yes. Perhaps not. Then why not compel IK to pass through DNA exercise for ceratinty.

    At this point the matter takes a political twist. If it were Zardari or Gilani, their Lordships’ pen shall scrawl with the ease of knife through butter. But when it comes to Sharifs and IK, they run out of ink.

    • Ameer

      Thanks for your comment and I will only add this to it:

      Since its Arsalan Iftikhar making accusation against Imran Khan, the onus would be on him to prove that Imran Khan has a daughter. And you have identified the limitation of American Judgment in light of section 13 Code of Civil Procedure 1908 and therefore Arsalan Iftikhar may not be able to rely on that judgment as he was not party to it.

      The Articles of Qanun-e-Shahadat Order quoted by you are relevant in other context when the validity of judgment is not disputed. These Articles cannot be relied upon in addressing the admissibility of American Judgment in Pakistan Courts.

  • Abdul Rashid Athar

    Imran Khan ki baat krty ho jo 300 kanal ka plot reshawat ly kr apny wife ki tilaq deeta hy.

  • Saeed Wattoo

    Thanks a lot Barrister Sahib for an elaborate reply. My humble observations for your kind consideration are as under:

    1. Yes the matter is serious and sensitive. However, truth and justice cannot be compromised just because the matter is sensitive. The law has to take its course and any exception to it on any extraneous consideration is unawarranted;
    2. Mere fact that a judgment is ex parte does not render it against the tenets of natural justice. If the court had given due notices to IK to enable him file his defence, the requirement of natural justice stands fulfilled. The court cannot grab an unwilling, stuubornly mulish defendant by the ears to compel his attendance. IK took a conscious decision to avoid filing of defence and then also opted not to file appeal against it. His right to access to justice, natural or otherwise, was never compromised. Once having taken deliberate decision to stay out of court, now is too late a time to take raise the plea of ex parte order.

    3. The people were disqualified for fake degrees, for concealing assets etc. bacause they were being untruthful and dishonest. In this case there is additional dimension of moral turpitude. The moment IK takes the defence of biological but not legitimate parenthood they would find themselves in deep trouble. By stating that the girl was not mentioned in the papers bacause she was born out of wedlock would mean that the girl is IK’s offspring.

    Now coming to the even handedness of justice. While the Supreme Court ran a foofaraw of a media charade to get the case against Zardari re-opened in a distant Switzerland, right under its nose, rather in its belly, NAB was going from pillar to the post to resuscitate cases against Sharifs, which were closed as part of their exit deal. The LHC never allowed it! So much for the law and justice.

    • Ameer

      Thanks for your comment once again and all I would say here is that its only that the justice is not compromised that the legal principles are in place to ensure that every case is decided upon those principles. These principles demand that the cases are decided in light evidence and not on assumptions. Then there are also rules on evidence to determine which piece of evidence is admissible or inadmissible.

  • Muhammad Aadil Liaquat

    This is definitely below the belt response of Arsalan Iftikhar after the allegations imposed by IK on him and his father Chaudry Iftikhar. Whenever IK has criticized someone be it MQM, PPP, or PML(N) and mind it not without the proofs but always backing his allegations with intimate proofs. The sad part of the story is that neither of them had anything to say on the allegations imposed on them rather they hit below the belt each time trying to malign the reputation of IK because they had nothing else to criticize him except of his ‘illegitimate daughter case”
    I ask you all:
    1. is he corrupt?
    2. Does he have any property abroad?
    3. has he ever caught spoken lie?
    4. Why does he want to to do politics in Pakistan when he can earn in millions of dollars by just writing an article in newspaper or appear as a analyst on any cricket show?

    If one has committed a sin during his early life and then repents on it…who are we to call him immoral?

    I challenge that if Article 62 and 63 is imposed completely then there won’t be a single person sitting in the assembly next day.

    Before criticizing our national hero and ignoring the milestones that he has achieved and benefited Pakistan, we must look into our own selves..are We moral?

  • Saeed Wattoo

    IK struts about as if halo of holiness is levitating on his head. He is only being tested on the touchstone of his own standards. If the defence is that none can pass the test of Articles 62/63, so why apply it on IK, then here rests our case. There are no saints in public and one must stop acting like one. Period.

    Same goes for his Fraudship Juctice ® Iftikhar Ch. and his illustrious son. Both made us fools long enough. Without them the country would not be any poorer.