IHC stays Imran Khan’s in-camera cipher trial till Jan 11

Published December 28, 2023
Justice Miangul Hassan Aurangzeb. — Picture courtesy: IHC website
Justice Miangul Hassan Aurangzeb. — Picture courtesy: IHC website

The Islamabad High Court (IHC) on Thursday issued a stay order on ex-premier Imran Khan’s in-camera cipher trial till January 11, noting that there were “legal errors” in the case.

The short order was passed by IHC’s Justice Miangul Hasan Aurangzeb on Imran’s petition challenging the trial — being conducted at Adiala Jail — and subsequent developments, including the framing of charges and a gag order on the media.

The written order, a copy of which is available with Dawn.com, said the special court judge was conducting the trial on a daily basis per an earlier direction of the IHC but the same was set aside by the Supreme Court. It added that the special court judge was proceeding with a daily trial despite the apex court order and directed that further hearings be stayed “in order to prevent these proceedings from becoming fait accompli”.

The Special Court (Official Secrets Act) had begun the cipher trial afresh last week at the Adiala district jail after Imran and former foreign minister Shah Mehmood Qureshi were indicted for a second time in the case on Dec 13.

The cipher case pertains to a diplomatic document that the Federal Investigation Agency’s charge sheet alleges was never returned by Imran. The PTI has long held that the document contained a threat from the United States to oust Imran as prime minister.

The former premier and his aide Qureshi, who is also behind bars, were first indicted in the case on Oct 23. Both had pleaded not guilty. Four witnesses had alre­a­dy recorded their statements when the IHC termed the government’s notification for a jail trial “erroneous” and scrap­ped the entire proceedings.

The IHC had endorsed Imran’s indictment, disposing of his plea against the same, but had also instructed the special court judge to ensure a “fair trial”.

On Friday, the Supreme Court had approved the post-arrest bails of Imran and Qureshi. While Imran remains incarcerated in other cases, it was expected that the PTI vice chairman would be released. However, Qureshi was manhandled and re-arrested outside Adiala jail by Punjab police yesterday in a fresh May 9 case.

During the hearing today, Attorney General for Pakistan Mansoor Usman Awan and Additional AGP Munawwar Iqbal Duggal appeared in court. The FIA’s prosecution team was also in attendance while PTI’s Barrister Salman Akram Raja attended the proceedings via video link.

At the outset, Justice Aurangzeb said he needed answers to two questions. “This court had ordered that an open trial should be held, why are in-camera proceedings being conducted? Security is not the court’s jurisdiction and we won’t interfere in this,” he remarked.

The judge also inquired why in-camera proceedings were being held when the trial was conducted in jail. “Open trial should also be held in jail,” he said, adding that the public should be allowed to attend the hearing.

“We were told that family members and media persons were allowed to attend the hearing. But now, once again, a petition has been filed stating that the proceedings have been declared in-camera,” Justice Aurangzeb noted.

For his part, AGP Awan responded that just the recording of testimonies, not the entire trial, was being held in-camera. He said the testimonies of 25 witnesses were to be recorded in the case of which the statements of 13 had been recorded and two witnesses had been cross-examined.

“The defence lawyers have not yet cross-examined 10 remaining witnesses,” he said, adding that the gag order on media was issued after the testimonies of 13 witnesses had been recorded.

Here, the court asked if family members were still allowed to attend the hearing to which the AGP said the media too was allowed to cover the trial after the statements of the remaining 12 other witnesses were recorded.

“How was the media allowed when the trial court order [on in-camera proceedings] was not challenged?” the IHC asked.

At that, Awan said there was a procedure followed under which people in the court were told to leave when statements of witnesses were recorded. They were allowed to enter the court once the same was completed. He added that witnesses in the cipher case were divided into three categories.

“The cross-examination of 10 witnesses in the case is remaining but during some testimonies, the media was sent out of court,” the AGP stated.

However, Justice Aurangzeb said that from what Awan described “this doesn’t look like an open trial to me”. “You can’t tell people to come and go whenever you want to,” he asserted.

On the other hand, Awan argued that the witnesses included three officials of the foreign ministry who had received and decoded the cipher. Their statements were recorded on Dec 15, he added. The AGP further said that the government would approach the court to record the statement of the cipher’s custodian.

Justice Aurangzeb said he had tried to explain what an open trial was multiple times but it was neither clear to the [trial court] judge nor the prosecution. “The law being used dates back to when Pakistan did not exist, in fact, it wasn’t even an Indian law,” he said.

The IHC judge added that the world was unaware of human and fundamental rights in 1923. “This case is the first impression in front of us … the judiciary has to examine it,” he said and asked how many witnesses had recorded their statements when the SC had granted post-arrest bail to Imran and Qureshi.

Thirteen, the AGP replied. Here, Justice Aurangzeb remarked that the SC had noted in its order that the evidence in the case was insufficient. “Let’s suppose that an appeal comes tomorrow and I am hearing it, what will you expect from me?” he asked.

The judge further observed that there was “inaccuracy” in the special court judge’s decision, adding that there were times when a case was fine but it was messed up. Justice Aurangzeb also noted that the AGP had to carefully delve deeper into these matters.

“We try to write [everything] with the law. Across the world, the law is our source,” he added.

At one point, the FIA prosecutor read out loud the Criminal Law (Amendment) Bill, 2023, and also referred to previous judgments related to the matter. However, Justice Aurangzeb reiterated that there were legal errors in the matter.

While presenting his arguments, Barrister Raja said testimonies of witnesses recorded during in-camera proceedings were already available on the Internet as everything was written in the certified copy of the court order.

He added that the certified copy was a public document. Here, the court ordered the PTI counsel to present the same in court. Justice Aurangzeb then remarked that SC had declared the evidence in the case insufficient.

“My mind got very clear today,” the judge added and then adjourned the hearing till Jan 11. Later, the IHC issued an interim order and barred the special court from moving ahead in the case till the next hearing.

Notices issued to federation, FIA

Earlier in the day, the IHC, while hearing a separate PTI petition seeking an immediate stay order on the cipher trial, had issued notices to the federation and other respondents.

PTI counsel Salman Usman Gul had sought an immediate stay order on the cipher trial. However, the request was rejected as Justice Aurangzeb said notices would be first issued to the respondents.

The court then issued a notice to the federation and sought its responses to the PTI petition. It also issued directives for all case documents to be submitted to the IHC.

Justice Aurangzeb also inquired if an authorised government officer could directly approach the court and file a complaint. Gul responded in the affirmative but highlighted that a first information report, not a complaint, had been registered in the cipher case.

“The case is being heard daily. So far, statements of 25 witnesses have been recorded and three were cross-examined,” the lawyer revealed, adding that there were a total of 28 witnesses in the case.

Gul also requested that the IHC direct the special court to conduct the trial after five to six days. “The special court can complete the trial during this time,” he warned.

However, Justice Aurangzeb said the court was first issuing notices and adjourned the hearing. Earlier, the court had also issued notices to the FIA, which was received by the agency’s prosecutor in the courtroom.

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