The caretaker government on Friday approached the Supreme Court challenging the Islamabad High Court’s November 21 verdict declaring former prime minister Imran Khan’s jail trial in the cipher case illegal.

The petition, filed by the ministries of law and interior, contended that the IHC order was “not in consonance with the law” and “travelled beyond the jurisdiction”.

It must be noted that on August 29, the IHC had suspended the PTI chief’s sentence in the Toshakhana case, but a special court established under the Official Secrets Act had directed jail authorities to keep Imran in “judicial lockup” in the cipher case.

A notification issued by the law ministry the same day had stated that the Law and Justice Division had “no objection” to Imran’s trial in the cipher case being held at Attock jail. In September, Imran was shifted to Adiala jail.

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 Shah Mahmood Qureshi were indicted in the case on Oct 23. Both pleaded not guilty.

However, on Nov 21, an IHC division bench — comprising Justice Mian­gul Hassan Aur­angzeb and Justice Saman Rafat Imtiaz — had declared Imran’s intra-court appeal against a single-member bench’s decision approving his jail trial in the cipher case as maintainable.

The bench had termed the government’s notification for a jail trial “erroneous” and scrap­ped the entire proceedings.

As a result, Imran and Qureshi’s indictments in the case stood null and void, and the trial was conducted again in open court. Charges were subsequently framed against them for a second time on Dec 14.

The plea filed in the apex court today, a copy of which is available with Dawn.com, named Imran, FIA director general, Islamabad police chief, district magistrate/deputy commissioner of Islamabad, Judge Abual Hasnat Zulqarnain of the special court established under the Official Secrets Act and superintendents of Adiala and Attock jails as respondents in the case.

In the petition, the government raised a number of questions, including the legality of the IHC proceedings and the maintainability of Imran’s appeal.

It argued that the high court’s order was “not sustainable” as the ex-premier’s appeal was “not competent” and the “assumption of jurisdiction” by the IHC divisional bench was “erroneous”.

“Hence, the impugned order dated 21.11.2023 is liable to be set aside,” the petition prayed, elaborating that Imran’s intra-court appeal was “not competent”.

“Divisional Bench of the hon’ble Islamabad High Court, Islamabad has traveled beyond the jurisdiction and relief not claimed in the writ petition was also allowed,” the application contended.

Further, it said the IHC order was “not maintainable in the eye of law” and the high court had gone beyond the prayer made in the petition.

Citing previous apex court orders, the plea stated that “proceeding is something having the backing of judicial order or judicial process” and “action of the executive cannot be termed as proceedings in any manner whatsoever”.

“The Official Secret Act does not revolve around ouster of some secrets and if unauthorised ouster of secret can be made public by way of judicial proceedings conducted in public may prejudice the national security and might adversely affect the state sovereignty,” the government said.

It added that Section 14 [exclusion of public from proceedings] of Official Secret Act, 1923 was not properly discussed by the IHC bench. “[The] principle of open trial has not been rightly applied in the cases of Official Secret Act and the intention of legislature in introducing Section 14 of OSA was to protect state-level secrets,” the petition stated.

The plea further said that the “doctrine of open trial in a secret matter like a cipher is injurious to the entire scheme of law”.

“It is respectfully submitted that leave to appeal may please be granted from the impugned judgment dated 21.11.2023 passed by Divisional Bench of Islamabad High Court, Islamabad in ICA No.367/2023 in the interest of justice,” it concluded.

IHC’s Nov 21 order

In its order, the IHC had said the law ministry’s notification of August 29 to conduct the trial in jail was “without lawful authority” and had “no legal effect”.

The requirements — to conduct the trial in jail — provided in Section 352 of the Criminal Procedure Code and Rule 3 in Part-A of Chapter-1 in Volume-III of the Rules and Orders of the Lahore High Court were not met, the order had reasoned.

The rule in question states: “The place where a criminal court is held shall be deemed an open court to which the public generally may have access so far as the same can conveniently contain them,” but the discretion to exclude the public from the ordinary courtroom rests with the presiding magistrate. When, however, the presiding magistrate, for any reason, excludes the public by holding his Court in a building such as a jail, to which the public is not admitted (and he is not entitled to do so without permission of the Department concerned) he should obtain the sanction of Government thereto, through the District Magistrate, and should inform the High Court that sanction has been accorded.“

In its August notification, the ministry had cited “security concerns” to justify the trial in Attock jail. Later, proceedings continued at Adiala Jail in Rawalpindi when Mr Khan was relocated there following a court order.

The subsequent notifications for the jail trial issued on September 25 and October 13 were also declared void, for the same reasons.

Moreover, the court had found that the notifications issued on November 13 and 15, following the federal cabinet’s approval of the jail trial, were also “of no legal consequence.” The federal cabinet’s decision had a retrospective effect, which was “erroneous”.

“Consequently, the proceeding with effect from August 29, 2023, and the trial conducted … in jail premises in a manner that cannot be termed an open trial stand vitiated,” the bench had noted.

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