ISLAMABAD: The federal government on Friday moved an appeal against the Islamabad High Court’s (IHC) order declaring ex-premier Imran Khan’s jail trial in the cipher case ‘illegal’.

The appeal, filed on behalf of the interior and law ministries, argued that the division bench’s order issued on Nov 21, 2023 was contrary to the law.

The cipher case pertains to a diplomatic document that the FIA’s charge sheet alleges was never returned by the ex-premier, who had held that it contained a threat from the US to topple his government.

On Nov 21, the IHC division bench comprising Justice Miangul Hassan Aurangzeb and Justice Saman Rafat Imtiaz had declared Mr Khan’s intra-court appeal against a decision of the single bench 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.

Argues the high court ‘travelled beyond jurisdiction’ in cipher case, erred in discussing grounds of revision

In its order, the division bench held as valid the designation of the special court to try cases reported under Official Secrets Act, 1993 stating that in exceptional circumstances and where it was conducive to justice, a trial could be conducted in jail in a manner that fulfills the requirements of an open trial or a trial in camera, provided it was in accordance with the procedure. However, the bench had held, the proceedings with effect from Aug 29, 2023 and the trial conducted under the Secrets act on jail premises could not be termed an open trial.

Subsequently, the indictment of Mr Khan and former foreign minister Shah Mehmood Qureshi carried out on Oct 23 stood “null and void”, and the trial was re-conducted in an open court. Charges were subsequently framed against them for a second time on Dec 14.

In its appeal, the caretaker government stated that the high court order was “not sustainable” as the ICA was “not competent” and assumption of jurisdiction by the IHC division bench, therefore, was liable to be set aside.

The government’s appeal also referred to the 1984 Karim Bibi case in which the Supreme Court had held that the term proceedings was a very comprehensive term, and, generally speaking, meant a prescribed course of action for enforcing a legal right, and hence it necessarily embraced the requisite steps by which judicial action was invoked. A proceeding would include every step taken towards further progress of a cause in court or before a tribunal, where it may be pending. It was the step towards the objective to be achieved, for instance the judgement in a pending suit, the appeal argued, adding the high court “travelled beyond the jurisdiction” and granted a relief not claimed in the writ petition.

Thus, it argued, the IHC division bench order was “not maintainable” in the eyes of law since the ICA was not covered within the meaning of Section 3 of Law Reforms Ordinance, 1972.

The petition contended that the venue of trial was not absolute and vested right of the accused and therefore the division bench had erred in discussing grounds of revision.

Moreover, the principle of open trial had not been rightly applied in the case of secret act and the intention of legislature in introducing Section 14 (exclusion of public from proceedings) of the secret act was to protect state-level secrets. The doctrine of open trial in a secret matter like a cipher was injurious to the entire scheme of law, the caretaker government argued.

Published in Dawn, January 20th, 2024