• Open court proceedings set to resume at capital’s Federal Judicial Complex
• Judge’s discretion whether to allow another request for jail trial

After the Islamabad High Court ordered the special court seized with the cipher case to start the proceedings afresh, Judge Abual Hasnat Zulqarnain has four weeks to conclude the trial, as per an earlier order of IHC Chief Justice Aamer Farooq.

On Tuesday, the proceedings in the cipher case against Imran Khan and his close aide Shah Mehmood Qureshi were vitiated by the division bench order, which asked the special court to restart proceedings. Ex-PM Imran Khan and his foreign minister, Shah Mehmood Qureshi, are standing trial on the basis of a complaint that declared both leaders as principal accused in a case registered under sections 5 and 9 of the Official Secrets Act.

The trial was being held at Adiala Jail and four witnesses had already recorded their statements, with the fifth being cross-examined when the IHC division bench termed the notification for jail trial “erroneous” and scrapped the entire proceedings.

The appointment of the presiding judge had also been challenged by the PTI, but the two-member bench validated his appointment, allowing him to proceed with the trial anew.

Now, proceedings which were stalled on Nov 14 following an interim order of the high court, will commence in open court. Since the IHC has already ruled against a jail trial, the proceedings will be conducted at the Federal Judicial Complex (FJC), where the judge is expected to take up the case today (Thursday).

In line with legal requirements, the court has to issue a summons for Mr Khan and Mr Qureshi. Sources said the court may give three to four days for the appearance of the accused before the judge. It can also issue a production order for Mr Khan, as he is currently in the custody of the National Accountability Bureau (NAB) in connection with the Al Qadir Trust case.

Sources privy to the prosecution told Dawn that the IHC scrapped trial proceedings because the process for conducting the trial in prison was not initiated in light of the law of the land. But now, they said, the prosecution could move a fresh application seeking jail trial in the cipher case.

It will be the discretion of the trial court judge, however, to pass a judicial order in this regard. If he deems it necessary, he could transmit the same to the district magistrate and the chief commissioner, with the consent of the high court.

The chief commissioner may then submit this request to the interior ministry to place before the federal cabinet, sources said, adding that the cabinet may accord approval through circulation in a couple of days.

The process could be completed before the next date of hearing, when Mr Khan is due to attend court proceedings, sources said.

PTI spokesman and senior lawyer Shuaib Shaheen said the trial court may order a jail trial under the law. However, this order could also be challenged, since the decision of the IHC division bench has “proved the mala fide intent of the authorities” to conduct Mr Khan’s jail trial without completing the legal formalities, he added.

He also said the PTI legal team may challenge the IHC division bench’s decision to validate the appointment of Judge Zulqarnain. “Since the IHC has released the short order only, the decision in this regard will be taken after careful study of the detailed order,” he added.

Trial in 30 days

Sources privy to the prosecution hope that the trial would conclude within the 30-day deadline, as the court would require a week to frame charges and there would be sufficient time to record the testimony of witnesses and accused, in three weeks.

On the other hand, Mr Shaheen said that the IHC chief justice’s order was “directory” in nature and not “mandatory”. He said that since the order was “directory”, the trial court was under no obligation to implement it strictly within the given timeframe.

The order he was referring to was authored by the IHC CJ in response to a petition lodged by Mr Qureshi, seeking post-arrest bail. The CJ had asked the trial court to complete Mr Qureshi’s trial within four weeks from the date of the receipt of the order.

The court order stated: “Undoubtedly, bail ought not to be held as punishment but where sentence involved is death or life imprisonment, the court has to proceed with caution; in this regard, the balance is to be maintained that liberty of a person ought not be compromised but gravity of charge or allegation is also to be kept in view. The suitable balance can be achieved where the trial has already commenced by way of appropriate direction to the trial Court to conclude the trial expeditiously.”

Published in Dawn, November 23rd, 2023