The federal government on Thursday challenged PTI founder Imran Khan and former foreign minister Shah Mahmood Qureshi’s acquittals in the cipher case before the Supreme Court.

The cipher case pertains to a diplomatic document that the Federal Investigation Agency’s (FIA) charge sheet alleges was never returned by then-PM Imran, who long held that the document contained a threat from the US to topple his government.

A special court, established under the Official Secrets Act, had handed both Imran and Qureshi 10-year jail sentences each in the case in January after Judge Abual Hasnat Zulqarnain appo­inted a state counsel for them.

Last week, Islamabad High Court (IHC) Chief Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb had acquitted the duo after accepting the appeals of the former premier and diplomat against their convictions in the case.

The judgement was criticised by the government, which claimed that the IHC did not examine the case in the context of ‘national security’. In a press conference, PM’s spokesman for legal affairs Barrister Aqeel Malik said the prosecution would decide to file an appeal against the IHC verdict.

The verdict was challenged in a petition today to the apex court through the interior secretary that prayed for the leave to appeal to be granted and for the plea to be turned into an appeal in the “best interest of justice”.

The petition argued that the IHC order was “perverse, arbitrary and contrary to the material available on the record” and thus liable to be set aside.

It argued that the Official Secrets Act (OSA), 1923 did not provide the provision of filing an appeal against the judgment of the special court judge and that the IHC did not “appreciate” that it lacked the jurisdiction or power to create rights which were not provided by the Constitution or a validly enacted law.

The petition said that the act did not say that the provisions of the Pakistan Criminal Law (Amendment) Act, 1958, would be applicable for filing an appeal.

“It is an established principle of law that where the legislature has not provided something in the language of the law, the court cannot travel beyond its jurisdiction and read something to the law as the same would be ultra vires the powers available to the court under the constitution and would constitute an order without jurisdiction,” it argued.

It further said that the special law would have an overriding effect on the general law and thus the criminal procedure code was not applicable in the case of those tried for offences under the OSA.

“The conduct of the respondents was non-cooperative throughout the trial and they made very possible efforts to delay the proceedings. The record of the trial court is evidence of the fact that 65 miscellaneous applications were moved by the respondents were heard and decided by the trial court.

“The matter was number of times adjourned on the request of the respondents or their counsels. The witnesses remained present in the court but their cross-examination was not carried out by the defence counsels. The learned trial court appointed the defence counsels on the expense of the state, who had completed the trial. The respondents tried to defeat the cause of justice by indefinite procrastination,” the petition said, adding that these aspects were not considered by the IHC.

The plea reasoned that it was a “settled principle of law” that if a court came to the conclusion that a trial was not carried out fairly then the “only way out provided under the law is to remand the matter to the trial court for giving proper opportunity”.

It said the prosecution had produced “overwhelming evidence” in support of its case and the admission by the accused was “sufficient to establish the case beyond any shadow of doubt”.

“Prosecution has produced the documentary evidence along with its forensic analysis through reliable and confidence inspiring evidence which were not negated during the course of the cross-examination but this aspect has not been appreciated by the honourable division bench of IHC, while acquitting the respondents, as such the impugned judgment is not sustainable in the eyes of law.

“That the impugned judgment/short order does not reflect any ground of acquittal of the respondent, even it is not observed that the prosecution has failed to prove its case beyond any shadow of doubt.

“That with utmost respect it submitted that the IHC has not appreciated the evidence available on the record as well as the admission of the accused, while acquitting the respondents, as such the impugned judgment is not sustainable in the eyes of law,” the plea concluded.

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