Imran moves SC against indictment in cipher case

PTI chief asks top court to declare move illegal and unlawful

Hasnaat Malik November 08, 2023



PTI chairman and deposed premier Imran Khan has moved the Supreme Court challenging his indictment in the diplomatic cypher case.

Imran has filed a petition in the SC through his lawyers Hamid Khan and Salman Safdar requesting that the framing of a charge against him by a special court formed under the Official Secrets Act, 1923 on October 23, 2023 should be declared illegal, unlawful and violative of the Code of Criminal Procedure, 1898 (as well as Articles 4 and 10- A of the Constitution.

On October 26, the Islamabad High Court already dismissed a similar petition filed by the PTI chief.

Senior lawyers consider that the engagement of Advocate Hamid Khan is significant in this case. Hamid is the head of the Professional Lawyers Group. He was also among the lawyers of several superior bars, which had challenged the presidential reference for the removal of incumbent Chief Justice of Pakistan Qazi Faez Isa.

"The learned trial court [special court] has undeniably framed a charge that is flawed and inaccurate, and such errors will undoubtedly have severe repercussions. These defects are not correctable and have caused substantial prejudice to the petitioner [Imran], necessitating [the] kind intervention of this honourable court [SC],” the petition read.

The PTI chief in his plea contended that a “prejudiced” court case was being conducted against him even though he had served as the 22nd prime minister of the country and was fully entitled to the “immunity” from being tried in an “illegal” trial based on the allegations merely to the extent of his lawful act carried out during his tenure as the premier.

“The petitioner and the co-accused [Shah Mahmood Qureshi], who has served as the Minister of Foreign Affairs twice, have been provided the immunity under Article 248 of the Constitution of Pakistan, 1973. Therefore, the exercise of persecuting the petitioner and the co-accused through commencing the trial under the Official Secrets Act, 1923 is unquestionably null and void in the eyes of law," the plea added.

The PTI chief claimed that in April 2022, he was ousted from his position through a “meticulously orchestrated scheme”.

“The subsequent arbitrary actions and highhandedness displayed by his political opponents, who assumed control of the federal government, undeniably reflect a clear case of political victimisation against the petitioner and his party," it petition read.

"[The] evident haste has significantly compromised the fairness of the proceedings, as is discernible in the actions of the learned trial court. Regrettably, the learned trial court failed to adhere to the mandatory requirement of providing a minimum of one week (7 days) between the date of supplying case documents and the framing of charges in a criminal trial,” it added.

The petition stated that this “oversight” was particularly “troubling” considering that the case involved a former prime minister and a former foreign minister and revolved around a “novel and intricate” issue concerning a cypher telegram.

“Given the complexity of the matter and the need for a comprehensive understanding of a century-old law, all parties involved, including the accused, who must comprehend the charges, the judge, responsible for framing them, and the counsel, responsible for advising the client, ought to exercise care and caution. However, it is evident that the learned trial court rushed to hastily frame the charges and expedite the trial," it continued.

Imran argued that special court had framed the charge being “completely ignorant” of the safeguards available to an accused in the country’s criminal justice system.

“Earlier as well, the same court authorised [the] secret arrest and secret remand without the production of the accused in blatant violation of Section 167 CrPC, 1898. Again, quite shockingly after supplying copies on 17.10.2023 in sheer haste, the trial court framed [the] charge on 23.10.2023 which was promptly brought into the notice of [the] Islamabad High Court,” the plea read.

The PTI chairman contended in the plea that the haste displayed, along with the rush to expeditiously frame the charge, raised a legitimate question about the motivation behind the actions of special court.

“This undue haste alone is sufficient to establish the illegality of [the] charge framed against the petitioner on 23.10.2023. A serious grievance, gone unattended by the Learned Islamabad High Court," the petition continued.

Imran in the petition further argued that another critical issue that demanded consideration was the “blatant illegality” committed by framing the charge without providing the primary documentary evidence central to the entire prosecution’s case.

“This evidence, as detailed in the FIR, remand application, and challan, revolves around the alleged unauthorised use of a cypher telegram. The omission to supply this cypher document, which constitutes a pivotal component of the mandatory requirements outlined in Section 241-A, is a grave violation,” it stated.

“Failure to provide crucial, relevant documents pertaining to the main allegation is altogether missing and charge has been framed without supplying the most relevant document and related evidence. This [is] tantamount to ‘persecution’ as opposed to ‘prosecution’ for an offence. Evidence can never be kept secret from the accused or the court," it continued.

The PTI chief contended that serious prejudice had been caused to him and Qureshi facing the trial.

“The law reserved for [the] prosecution of armed forces for revealing national secrets with ‘enemy states’ is being overstretched and clearly misapplied to the case of a former prime minister and [an former] foreign minister of Pakistan. The trial judge as well as the learned high court have completely overlooked that neither the law (Official Secrets Act, 1923) nor its section 5 and 9 are attracted in the instant case.

"No criminality can be attributed to the petitioners who are being politically victimised and a defective and erroneous charge after forming [a] wholly incorrect understanding of the special law has been framed against the petitioner and others with the primary object to keep the petitioner behind the bars and at bay from the political scene. The bias and pressure on the court is visible from an examination of the interim order dated 17.10.2023 in which the trial court in advance indirectly bars all application and remedies available to an accused for early… acquittal in the wake of [a] defective charge having no substance," it read.

“[The] petitioner is deeply perturbed by the mode, approach, and practices adopted by the learned trial court in the trial of this offence. The first glaring illegality committed was the conduct of secret remand hearings for the petitioner without his knowledge and without producing the accused during these proceedings.

"In fact, the petitioner, his legal team, and his family were completely unaware of his arrest on 15.08.2023, which transpired in the utmost secrecy. This was followed by a clandestine remand hearing on 16.08.2023, wherein the accused was not produced, clearly violating Section 167 of the Criminal Procedure Code, 1898, and well-established legal principles as outlined in the 'Ghulam Sarwar' Case, reported in 1984," it concluded.


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