ISLAMABAD  -  Pakistan Tehreek-e-Insaf (PTI) chairman Imran Khan on Wednesday challenged his indictment in the cipher case before the Supreme Court of Pakistan.

The PTI chief, in his petition, prayed the top court to set aside the judgment of Islamabad High Court (IHC) dated October 26, and that of the trial court dated October 23 pertaining to his indictment.

Meanwhile, Supreme Court of Pakistan Wednesday ruled that the power under Article 184(3) of the constitution should be used in such manner that it does not affect the fundamental rights of other parties. A three-member bench of the apex court led by Chief Justice of Pakistan Justice Qazi Faez Isa and comprising Justice Athar Minallah and Justice Aminuddin Khan stated this while hearing a complaint filed by a woman against a housing society owner during the tenure of former CJP Saqib Nisar. 

A lady by the name of Zahida Javed Aslam on 13- 10-2018 had written letter to the Human Rights Cell of the Supreme Court leveling allegations against Top City Kanwar Moiz Khan. In pursuant to the compliant, the matter was put up in the chamber. As per report former Chief Justice Saqib Nisar directed the Director General HR Cell to issue notices to the parties. Thereafter different authorities and departments were activated. Advocate Chaudhry Hafeez, representing the petitioner Kanwar Moiz, informed that the dispute between client and Zahida had been attended and decided. 

During the hearing, questions arise whether the Chief Justice in chamber can summon the parties and pass an order other than that the matter be fixed in the open court. The bench noted that only matter of public importance involving enforcement of Fundamental Rights could be attended by the Chief Justice directing to fix the matter in the open court. It said that the power exercised by the then chief justice was not covered in the Constitution and the Supreme Court Rules, 1980. 

The court sought the assistance of Additional Attorney General Aamir Rehman, former law minister Farooq H Naek, and ex-Attorney General for Pakistan Salman Aslam Butt, who were present in the courtroom regarding the matter. 

They said that the chief justice could only pass order for the fixation of case in the court. He said the Chief Justice in the chamber could pass an order envisaged in the Supreme Court Rules i.e. order pass on appeal filed against the SC Registrar office order.

The bench having considered the matter said: “We are in agreement with the submission of the senior lawyers that the CJP cannot pass order in chambers, other than that the matter be fixed in the open court.” It added, “Therefore the proceeding took place in the chamber by ex-CJP in our opinion can’t be categorized legal proceeding.”

Moiz Khan also filed a petition under Article 184(3) of the constitution against the federation and the retired general, a former personnel of Inter-Service Intelligence (ISI) and leveled serious charges against that army officer. When the Chief Justice inquired from Moiz Khan’s counsel that how Article 184(3) is attracted and matter pertains to enforcement of Fundamental Rights. He replied that he has no remedy as the respondents are the retired generals. 

AAG Aamir Rehman said that the proceeding against the army personnel can be initiated if they have misused their offices. He said the petitioner can file a petition before the Ministry of Defence, adding that if it is proved that the retired army has misused his office, then he can reinstated and his trial will be initiated in the military court. 

Justice Minallah directed the petitioner to approach the relevant forum. He said that the petitioner can also file criminal case or civil suit of damage against the respondent. The Chief Justice said that the nature of case under Article 184(3) of the constitution is different from any other ordinary case, as under this Article the apex court uses power under original jurisdiction. He also said that the Court should be careful in exercising power under Article 184(3), and it should be used in such manner that it does not affect the fundamental rights of other parties. 

The bench said that when other forums are available then those should be availed in first instances as eventually the matter will come before the apex court in appeal. The bench advised the petitioner to avail the remedy before other forum in accordance with the law and constitution, and disposed of the petition. During the proceeding, Justice Minallah observed that the apex court’s Human Rights Cell had become a source of injustice. Matters related to Article 184(3) cannot be taken up in chamber. He expressed concern that why no attorney general or any senior counsel raised objections to orders issued in chamber.