Imran’s bail plea in cipher case to be heard in open court: IHC

Published October 4, 2023
Barrister Salman Safdar talks to the media after a hearing on the cipher case against PTI chief Imran Khan and Shah Mahmood Qureshi concluded at Adiala Jail on Oct 4. — Screengrab from video provided by author
Barrister Salman Safdar talks to the media after a hearing on the cipher case against PTI chief Imran Khan and Shah Mahmood Qureshi concluded at Adiala Jail on Oct 4. — Screengrab from video provided by author

The Islamabad High Court (IHC) on Wednesday ruled that the hearing of PTI Chairman Imran Khan’s bail plea in the cipher case would be held in an open court, but would be in-camera when “sensitive information” is discussed.

The decision came as the IHC disposed of the application filed by the Federal Investigation Agency (FIA) seeking in-camera proceedings of the PTI chief’s bail plea in the 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 the party chairman from office.

Imran was shifted to Attock jail on August 5, 2023, after a court sentenced him to three years in prison in the Toshakhana graft case. Following the suspension of the sentence, it had emerged that he had been on judicial remand in the cipher case.

On September 26, both PTI leaders’ judicial remand was extended until October 10 and as per the IHC’s orders, the PTI chief was shifted to Rawalpindi’s Adiala jail from Attock district jail.

On September 30, the FIA submitted a challan (charge sheet) in the Special Court established under the Official Secrets Act, declaring Imran and Qureshi as principal accused in the cipher case.

Earlier this week, the FIA had sought in-camera proceedings of the PTI chief’s bail plea in the cipher case and had informed the IHC that an open hearing of the same could pose a “risk of deteriorating relations with other countries”.

A day ago, the Ministry of Law and Justice issued a notification for the jail trial of the ex-premier and former foreign minister in the cipher case.

The notification cited the request of Judge Special Court (Official Secrets Act) and stated that the “Law and Justice Division has ‘No Objection’ to the jail trial of the accused in which he is confined, under the Official Secrets Act.”

However, the PTI rejected the law ministry’s notification to hold the party chairman’s trial in Adiala jail, insisting that the case be heard in an open court.

Today, pronouncing the reserved verdict on the FIA’s application, IHC Chief Justice Aamer Farooq ruled that an open court would hear Imran’s bail plea.

However, the court stated that “upon sensitive information or documents being brought on record”, the hearing would be made in-camera.

Lawyer terms jail trial ‘unconstitutional’; hearing adjourned

Meanwhile, PTI lawyer Barrister Salman Safdar termed the in-camera trial of Imran and former foreign minister Shah Mahmood Qureshi in the cipher case “unconstitutional”.

He made the remarks while talking to the media outside Adiala jail, where the special court presided over a hearing of the cipher case, which was adjourned until October 9.

Prior to today’s hearing, Imran’s lawyer Naeem Haider Panjutha said that the legal team was to meet the party chief shortly.

Special Court Judge Abual Hasnat Zulqarnain presided over today’s hearing at Adiala jail, where Imran and Qureshi are currently incarcerated.

Both politicians were then presented before the court, where copies of the challan (charge sheet) of the case were to be distributed among the suspects.

However, according to Safdar, the PTI’s legal team requested the court to adjourn the hearing today as a relevant plea was also pending before the Islamabad High Court (IHC).

Subsequently, the hearing was adjourned until October 9 and the copies of the charge sheet were not distributed to the suspects today.

Speaking to the media outside the jail, Safdar asserted that “Imran’s arrest and remand in the case were also kept secret and now, this trial is being kept secret as well”.

“The trial should not be held behind closed doors. It is unconstitutional,” he asserted as he demanded transparency and an open hearing of the case. The lawyer said a closed trial would be in violation of Article 10A (right to fair trial) of the Constitution.

“Imposing a complete ban on evidence, the public, relatives [and] even lawyers, that only one or two lawyers are [allowed] to come […],” the barrister said. He claimed that the trial was being held in a “very small courtroom”.

Safdar suggested that in-camera proceedings could be considered for a portion “where the judge deemed it necessary, but not for the entire proceedings”.

Confirming that a meeting of the lawyers with the detained ex-premier was allowed for a short while today, Safdar said that the PTI chief barred him from “making any kind of deal”. “The PTI chairman took Donald Lu’s name,” he added.

Panjutha, in a post on X (formerly Twitter), said that the legal team requested the court to pause the trial proceedings until there was a verdict on a plea seeking the cancellation of the notification that allowed the special court to be moved to the jail.

IHC moved against jail trial

Also today, Imran, through Advocate Sher Afzal Marwat, approached the IHC against the holding of the cipher case trial in Adiala Jail.

The application, a copy of which is available with Dawn.com, made the state a respondent in the case. Its title stated it was filed under section 151 (saving of inherent powers of Court) of the Code of Civil Procedure, 1908.

It urged the court to restrain the respondents from “issuing any order like the one dated Oct 3, 2023 or any order in future for holding trial of Mr Imran Ahmed Khan Niazi in cipher case in Adiala Jail”.

The plea cited the notification issued by the law ministry a day ago, which had allowed Imran’s trial in the cipher case to be held in the Adiala jail due to security reasons cited by the Interior Division.

The notification had stated that the Law and Justice Division had “no objection” to the jail trial of the accused “till his security clearance” was issued.

Imran’s application to the IHC recalled that the same matter was “debated/argued” before the IHC, which it said had to decide the jurisdiction or authority of the law ministry to issue the No-Objection Certificate (NOC) and “to construe as to whether the NOC could be deemed as a binding order” for the special court judge to shift the trial to Adiala Jail.

The plea argued that the “matter would be rendered infructuous” if the said notification was not suspect or if the respondents were not restrained from issuing an identical order in the future.

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