- Division bench also declares as null and void Aug 29 notification on jail trial
- Terms Law Ministry’s notification ‘without lawful authority and no legal effect’
ISLAMABAD: The Islamabad High Court (IHC) on Tuesday nullified the notification issued on August 29 regarding the jail trail of Pakistan Tehreek-e-Insaf Chairman Imran Khan in cypher case, declaring as null and void the proceedings of the case conducted in the jail so far.
A division bench of the IHC comprising Justice Mian Gul Hassan Aurangzeb and Justice Suman Rifat Imtiaz announced the verdict which was reserved earlier in the day on an intra-court appeal filed PTI chief Imran Khan against the verdict of a single-member bench.
In the verdict, the IHC division bench declared Imran’s intra-court appeal maintainable.
As a result, Imran and his aide Shah Mahmood Qureshi’s Oct 23 indictments in the case also stand null and void, and the trial will be conducted again in open court.
“There is no provision in the Code of Criminal Procedure, 1898, which compels a Magistrate to hold his Court in a usual Court Room. In exceptional circumstances and where it is conducive to justice, a trial can be conducted in jail in a manner that fulfills the requirements of an open trial or a trial in-camera provided it is in accordance with the procedure provided by law,” a written order of IHC stated while declaring the PTI chief’s appeal maintainable.
It is to be recalled that on August 29, the IHC had suspended the PTI chief’s sentence in the Toshakhana case, but a special court established under the Official Secrets Act had directed jail authorities to keep Imran in “judicial lockup” in the cypher case.
The same day, the Law Ministry had issued a notification, stating that the Law and Justice Division had “no objection” to Imran’s trial in the cypher case being held at Attock jail. In September, however, Imran Khan was shifted to Adiala jail.
In the verdict, the court declared the August 29 notification issued by the Ministry of Law and Justice impugned, terming it to be “without lawful authority and no legal effect”.
“Notification (F.No.40(68)/2023-A-VIII) dated 13.11.2023 issued by the Ministry of Law and Justice on the basis of the Cabinet’s decision dated 12.11.2023 as well as notification (F.No.40(68)/2023-A-VIII) dated 15.11.2023 issued by the said Ministry on the basis of the Cabinet’s decision dated 15.11.2023 are declared to be of no legal consequence for not having been preceded by an order of the learned Judge, Special Court in terms of Section 352 Cr.P.C. passed in judicial proceedings,” the order stated.
The court also clarified that notification issued on November 15 by the Ministry of Law and Justice on the basis of the cabinet’s decision on same day cannot be given retrospective effect.
“Consequently, the proceedings with effect from 29.08.2023 and the trial conducted in case FIR No.06/2023, dated 15.08.2023 registered under Sections 5 and 9 of the Official Secrets Act, 1923 read with Section 34 of the Pakistan Penal Code, 1860 at Police Station Counter Terrorism Wing, Federal Investigation Agency, Islamabad, in jail premises in a manner that cannot be termed as an open trial stand vitiated,” it further stated.
The cypher case pertains to a document waved by Imran, then the prime minister, at a public rally in March last year, terming it evidence of a foreign conspiracy behind the no-confidence motion he faced at that time. The motion was carried a few weeks later and Imran’s government ended.
During the hearing on Tuesday, Imran’s counsel Salman Akram Raja presented his arguments. He cited court rules and added that a judge’s permission was needed for a trial to be conducted within prison premises.
He added once the permission has been granted, the judge informs the relevant ministry. Imran’s counsel further stated that the reasoning for Imran’s jail trial was not conveyed in earlier documents.
Raja maintained that the process followed for the same was incomplete.
When asked by the bench if the government’s order for a jail trial was issued to fulfil legal obligations, the counsel replied in the negative and said the cabinet’s approval came without a judicial order.
Concluding his arguments, the counsel said that all notifications issued for the jail trial were not in line with the law.
Attorney-General for Pakistan Mansoor Awan then took the rostrum and stated that a jail trial was not for ordinary people to attend and added that Imran’s family has however been allowed to attend.
The AGP added that the hearing is being held in Rawalpindi’s Adiala jail and was being conducted in prison due to security reasons.
After the AGP’s arguments concluded, the bench reserved its verdict with Justice Aurangzeb saying that a short order would be issued first followed by a detailed order.
Earlier in October, the Islamabad High Court (IHC) clubbed Imran’s other petitions, seeking dismissal of the case and stopping his trial by the special court, established under the Official Secrets Act (OSA).
The PTI chairman filed another plea in the IHC seeking exemption under the Article 248. In the petition, it was stated that the Section 5 of the OSA did not apply to the cypher case.
The court had issued a notice to the FIA and sought its response today. The court also clubbed the petition with Imran’s other pleas against the case.
Imran had also filed a separate petition with the IHC challenging the FIA’s request to hold the case’s proceedings inside the jail premises. However, the high court disposed of the plea last week after observing that an in-camera trial was in the PTI chief’s favour, asking him to approach the trial court regarding the matter.
