ISLAMABAD - The Islamabad High Court (IHC) Tuesday declared the Law Ministry’s notification for the jail trial of PTI chief Imran Khan in the missing cipher case as null and void. A division bench of the IHC comprising Justice Miangul Hassan Aurangzeb and Justice Saman Rafat Imtiaz announced the verdict which they had earlier reserved after hearing the arguments of both sides in the PTI Chairman’s Intra-Court Appeal against his jail trial in the cipher case and appointment of the judge of the special court.
In the appeal, Imran had moved the court against the single bench’s judgment wherein it dismissed his petition challenging his jail trial in the cipher case. Now, the division bench has declared his ICA as “maintainable.”
The bench declared, “Consequently, the proceedings with effect from 29.08.2023 and the trial conducted in case FIR No.06/2023, dated 15.08.2023 registered under Sections 5 and 9 of the Official Secrets Act, 1923 read with Section 34 of the Pakistan Penal Code, 1860 at Police Station Counter Terrorism Wing, Federal Investigation Agency, Islamabad, in jail premises in a manner that cannot be termed as an open trial stand vitiated.”
In its short order, the IHC bench also declared the notification issued by the law ministry on August 29 for Imran’s jail trial as to be “without lawful authority and no legal effect for want of an order by the appropriate government and fulfilment of requirements provided in Section 352 of the CrPC as well as Rule 3 in Part-A of Chapter-1 in Volume-III of the Rules and Orders of the Lahore High Court.”
However, it said that the designation of the Special Court (Anti-Terrorism-I) Islamabad, to try cases reported under the Official Secrets Act, 1923 through notification dated 27.06.2023 issued by the Ministry of Law and Justice is valid and lawful.
The bench said that there is no provision in the Code of Criminal Procedure, 1898 (“Cr.P.C.”) which compels a Magistrate to hold his Court in a usual Court Room.
“In exceptional circumstances and where it is conducive to justice, a trial can be conducted in jail in a manner that fulfills the requirements of an open trial or a trial in-camera provided it is in accordance with the procedure provided by law, added the IHC. It also declared the Notifications of the Ministry of Law regarding Imran’s jail trial on September 12, September 25, October 3, October 13 as “to be without lawful authority and no legal effect for want of fulfilment of requirements provided in Section 352 Cr.P.C. as well as Rule 3 of the LHC Rules. Moreover, notifications issued by the law ministry on November 13 and November 15 after decisions taken by the cabinet were “declared to be of no legal consequence”. The court said that the November 15 notification “cannot be given retrospective effect”. It maintained, “The Cabinet’s decision dated 15.11.2023 are declared to be of no legal consequence for not having been preceded by an order of the learned Judge, Special Court in terms of Section 352 Cr.P.C. passed in judicial proceedings.
The bench further said, “It is also declared by way of clarification that notification dated 15.11.2023 issued by the said Ministry on the basis of the Cabinet’s decision dated 15.11.2023 cannot be given retrospective effect.”