IHC declares jail trial in cypher case illegal

The Islamabad High Court on Tuesday declared the proceedings of PTI Chairman Imran Khan’s trial conducted in jail in the cypher case so far as null and void.

However, the appointment of the judge to the special court formed under the Official Secrets Act was held to be valid.

An IHC division bench, comprising Justice Miangul Hassan Aurangzeb and Justice Saman Rafat Imtiaz, was hearing Imran’s intra-court appeal against a single-member bench’s decision to approve his jail trial in the cypher case and the appointment of the judge to the special court formed under the Official Secrets Act, 1923.

Approving the maintainability of the appeal, the court declared that the notification issued by the law ministry on August 29 -- which read that the Law and Justice Division had “no objection” to PTI chairman’s trial in the cypher case being held at Attock jail -- was without lawful authority and no legal effect “for want of an order by the appropriate government and fulfilment of requirements provided in Section 352 of the CrPC [Code of Criminal Procedure] as well as Rule 3 in Part-A of Chapter-1 in Volume-III of the Rules and Orders of the Lahore High Court”.

In its short order, the court also declared the law ministry’s notifications about Imran’s jail trial issued on September 12, September 25, October 3, and October 13 to be “without lawful authority and no legal effect”.

It added that the law ministry’s notifications issued on November 13 and November 15 after decisions made by the cabinet were “of no legal consequence”.

The short order read that the November 15 notification could not be given a “retrospective effect”.
“Consequently, the proceedings with effect from August 29 and the trial conducted … in jail premises in a manner that cannot be termed as an open trial stand vitiated,” the order read.

However, the order read that the appointment of Judge Abual Hasnat Zulqarnain to the special court to try cases reported under the Official Secrets Act through the law ministry’s notification issued on June 27, 2023 was valid and lawful.

It added that there was no provision in the CrPC that compelled the magistrate to hold proceedings in a usual courtroom. “In exceptional circumstances and where it is conducive to justice, a trial can be conducted in jail in a manner that fulfils the requirements of an open trial or a trial in-camera provided it is in accordance with the procedure provided by law,” the short order read.

Earlier, IHC Chief Justice Aamer Farooq had rejected the PTI chairman's plea against holding the trial of the cypher case in jail and the appointment of a special judge.

During Tuesday’s hearing, the PTI chairman’s lawyer Salman Akram Raja contended that a judge was required to pass a “clear judicial order” based on the circumstances for conducting a jail trial.
He continued that the judge had to inform the cabinet through the high court or the office of the district magistrate or commissioner.

Justice Aurangzeb asked him what the judge should do on a priority basis for a jail trial.
Raja replied the judge had to cite the reasons for the jail trial.

Imran’s lawyer said the reasons for his client’s jail trial were not conveyed in the August 29 documents. He contended that even if it was accepted that the trial was initiated by a judge, the process that followed was incomplete.

Read: Imran, Qureshi indicted in cypher case

The lawyer noted that the federal cabinet was empowered to approve jail trials, but in his client’s case, it had made no decision until November 15. He added that the federal cabinet gave its nod only when the intra-court appeal was being heard.

He continued that as per Article 352, the November notification was not applicable to previous hearings.
Justice Aurangzeb noted that the IHC registrar had informed the bench that the process of appointing the judge was initiated by the Islamabad High Court. “We were also told that the special court judge had informed the IHC before starting the jail trial,” he added.

Wrapping up his arguments, Imran’s lawyer argued that all the notifications issued in connection with the jail trial were illegal.

Attorney General for Pakistan (AGP) Mansoor Usman Awan told the court that a jail trial was not for ordinary people to attend. However, he added that the PTI chairman’s family was allowed to attend its proceedings.

He pointed out that Imran was in prison at the time of the arrest and that was why a physical remand was not obtained. He added that the hearing of the case was being held in Adiala jail and conducted in prison because of 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.

In a related development, the special court judge trying the cypher case against Imran and Qureshi extended their judicial remand till November 23 and adjourned the hearing without any further proceedings because of the IHC stay order.

Separately, Accountability Court Judge Muhammad Bashir gave the National Accountability Bureau (NAB) two more days to investigate Imran inside the jail in the £190 million Al-Qadir University reference and submit its report

The court also extended the bail of the PTI chairman in the Toshakhana case and his wife Bushra Bibi in the Al-Qadir University reference till November 30.

IHC’s Justice Aurangzeb heard a contempt of court case over the lack of implementation of the order for the registration of Al-Qadir Trust.

The court directed the advocate general to decide the request of Al-Qadir Trust within two days.

(With input from Qaiser Shirazi)