Imran moves IHC against ATC judge’s appointment to special court hearing cipher case

Published August 30, 2023
Barrister Salman Safdar talks to the media after a hearing on the cipher case against Imran concluded at the Attock district jail on Wednesday. — DawnNewsTV
Barrister Salman Safdar talks to the media after a hearing on the cipher case against Imran concluded at the Attock district jail on Wednesday. — DawnNewsTV

PTI Chairman Imran Khan on Wednesday approached the Islamabad High Court (IHC) against the appointment of Judge Abual Hasnat Zulqarnain, an anti-terrorism court (ATC) judge, to the special court that was recently established to hear cases filed under the Official Secrets Act.

Earlier today, Judge Zulqarnain extended the PTI chief’s remand in the cipher case till September 13. The hearing was held in Attock Jail, where the former premier is currently incarcerated in a graft case.

The developments come a day after the IHC suspended the PTI chief’s three-year jail sentence in the Toshakhana case, in which he was convicted on August 5.

However, on the heels of the verdict suspension, the special court had directed Attock jail authorities to keep him in “judicial lockup” and produce him today in connection with the cipher case.

The cipher case pertains to a diplomatic document which reportedly went missing from Imran’s possession. The PTI alleges that it contained a threat from the United States to oust Imran from power. Proceedings against Shah Mahmood Qureshi, the PTI vice chairman and former foreign minister, are also under way in the same case.

A day ago, in a letter addressed to the Attock jail superintendent, a copy of which is available with Dawn.com, Judge Zulqarnain said that Imran was “ordered for judicial remand in case FIR mentioned above, who is already detained in district jail, Attock”.

Last night, a notification issued by the law ministry said the interior ministry had conveyed “security concerns” to it in a letter and that the Law and Justice Division had “no objection” to Imran’s trial in the cipher case being held at Attock jail.

Imran moved the IHC after the hearing at Attock Jail today. The petition, a copy of which is available with Dawn.com, was filed through PTI lawyer Sher Afzal Marwat and named the state through the law ministry secretary; the interior ministry secretary; the FIA director general, the Islamabad chief commissioner, deputy commissioner and inspector general of police; the Adiala and Attock jail superintendents; and Judge Zulqarnain as respondents in the case.

The application also raised objections to the law ministry’s notification allowing the trial to be heard in prison.

It alleged that the special court judge was “lacking the essential qualification” for the role, citing the qualification of an ATC judge had been defined under section 13(2) of the Anti-Terrorism Act 1997.

“Therefore, reducing the rank and status of learned administrative judge ATC 1, Islamabad to the status of a magistrate is a mockery of the law and void-ab-initio,” it added.

It went on to state that an ATC judge was defined under Sections 13 (establishment of ATC) and 14 (composition and appointment of presiding officers of ATCs) of the ATA, according to which, the presiding judge of an ATC, “under no stretch of imagination, could be a magistrate”.

The petition further said that the appointment was “contrary to law” and “void-ab-initio” as the special court judge was not a magistrate under section 4(m-a) of the CrPC, which defines a magistrate.

Detailing the grounds against the moving of the special court to the Attock jail, the plea said the production order issued by the judge was a “judicial order, which has neither been recalled nor reviewed” by the court concerned.

It added that the respondents were not vested with any such powers under section 9(2) (court of session) of the CrPC. Citing the “security concerns” conveyed by the interior ministry, the petition argued that the “respondents never considered” allowing Imran to appear before any Islamabad court via video when he had expressed similar concerns.

“The claim in the name of security is a farce, false and misguiding,” it asserted, while also terming the notification “bereft of reasoning, logic and non-speaking”.

While stating that the “right to fair trial, merit and justice and fair play demands” that the trial be “held openly with access to all incendiary”, the plea suggested that “if in any case, the respondents wanted to hide things from the public, the in-camera hearing trial of the petitioner” could be held at the court building in the FJC.

The petition further said that the cipher case was at its pre-trial stage, at which the venue of the trial could not be changed. It added that the law ministry had no authority to extend its jurisdiction to Punjab and determine a venue that does not lie within the federal government’s administrative control.

The petition will be taken up for hearing by IHC Chief Justice Aamer Farooq tomorrow.

Cipher hearing

Earlier today, Judge Zulqarnain reached the Attock jail where he held an in-camera hearing of the case in the deputy superintendent’s office.

Prior to the hearing, the police had barred the PTI’s legal team from going inside the jail, saying that only one lawyer was allowed inside.

Speaking to reporters outside the jail after the hearing, Imran’s lawyer Barrister Salman Safdar asserted that the case against the PTI chief under the Secrets Act was “baseless” and said he would file a bail petition today.

He added: “The trial has not even started. Evidence is presented during the trial. Political cases are being made against the PTI chairman.”

A while later, the PTI’s legal team — comprising Safdar, Intizar Panjutha, Naeem Haider Panjutha and Ali Ijaz Battar — was allowed to enter the jail.

Imran was presented before the court while the Federal Investigation Agency’s (FIA) team and the PTI’s legal team were also present during the hearing. The PTI chief’s legal team marked his attendance today.

When the hearing concluded, Judge Zulqernain departed from the jail to return to Islamabad. He then presided over a hearing of the cipher case against Qureshi.

Later, Barrister Safdar confirmed to Dawn.com that the court extended Imran’s judicial remand by 14 days and also issued a notice on his post-arrest bail plea, seeking a reply from the respondents by September 2.

Talking to the media, Safdar said he met Imran, who was in “high spirits” and was “positive”. He added that the PTI chief gave him a briefing for 15 minutes detailing his stance on the cipher case.

The barrister asserted that proceedings under the Secrets Act were “reserved for the armed forces regarding internal matters, such as spying [and] mapping”. He termed the prosecution of a former premier and a former foreign minister (Qureshi) as “highly condemnable and very concerning”.

He said that no one in the PTI’s legal team or even Imran himself knew that he had been detained on judicial remand in the cipher case “for the past 15 days, when the FIA had requested for his physical remand but it was rejected”.

He then confirmed that the special court will hear the bail plea on Saturday and that the court also issued notices to the FIA on two other petitions — one challenging the trial of Imran in the cipher case and the second requesting an open hearing of the case.

Presenting Imran’s stance on the cipher case, Safdar stated that former interior minister Rana Sanaullah had admitted on social media that the original cipher was with them. “The FIA has also admitted that the original document of the cipher is with the Foreign Office,” he added.

Referring to the two meetings held by the then cabinet, the lawyer asserted that the cipher’s contents were discussed there and the then government had “declassified the cipher and the minutes of that meeting are with the Cabinet Division”.

“The day the cipher was declassified, it no longer remained an official secret,” he said, asking for what purpose then was this case for.

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