ISLAMABAD: The Islamabad High Court (IHC) on Thursday issued a stay order on ex-prime minister Imran Khan’s in-camera trial in the controversial cypher case till January 11, 2024, saying there were legal errors in the case.
Justice Miangul Hasan Aurangzeb while hearing Imran Khan’s petition challenging the trial – being conducted at Adiala Jail – and subsequent developments including the framing of charges and a gag order on media, passed the short order.
At the onset of the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan and Additional AGP Munawar Iqbal Duggal appeared before the court.
The Federal Investigation Agency (FIA)’s prosecution team was also in attendance while PTI’s Barrister Salman Akram Raja attended the proceedings via video link. Justice Aurangzeb said he needed answers to two questions as to why were in-camera proceedings being held when the court had ordered an open trial.
He also said the matter of security was not the jurisdiction of the court and “we will not interfere in this”. The judge also inquired why in-camera proceedings were being held when the trial was conducted in jail. “Open trial should also be held in jail,” he said, adding the public should be allowed to attend the hearing.
“We were told that family members and media persons were allowed to attend the hearing. But now, once again, a petition has been filed stating that the proceedings have been declared in-camera,” Justice Aurangzeb noted.
For his part, AGP Awan responded that just the recording of testimonies, not the entire trial, was being held in-camera.
He said the testimonies of 25 witnesses were to be recorded in the case of which the statements of 13 had been recorded and two witnesses had been cross-examined.
“The defence lawyers have not yet cross-examined the 10remaining witnesses,” he said, adding the gag order on media was issued after the testimonies of 13 witnesses had been recorded.
Here, the court asked if family members were still allowed to attend the hearing to which the AGP said the media too was allowed to cover the trial after the statements of the remaining 12other witnesses were recorded.
“How was the media allowed when the trial court order [on in-camera proceedings] was not challenged?” the IHC asked.
At that, Awan said there was a procedure followed under which people in the court were told to leave when statements of witnesses were recorded.
They were allowed to enter the court once the same was completed. He added that witnesses in the cypher case were divided into three categories. “The cross-examination of 10witnesses in the case is yet to be done but during some testimonies, the media was sent out of court,” the AGP stated.
However, Justice Aurangzeb said that from what Awan described “this doesn’t look like an open trial to me”. “You can’t tell people to come and go whenever you want to,” he asserted.
On the other hand, Awan argued that the witnesses included three officials of the Foreign Affairs Ministry who had received and decoded the cypher, adding their statements were recorded on December 15. The AGP further said the government would approach the court to record the statement of the cipher’s custodian.
Justice Aurangzeb said he had tried to explain what an open trial was multiple times but it was neither clear to the [trial court] judge nor the prosecution. “The law being used dates back to when Pakistan did not exist, in fact, it wasn’t even an Indian law,” he said. The IHC judge added that the world was unaware of human and fundamental rights in 1923.
“This case is the first impression in front of us…the judiciary has to examine it,” he said and asked how many witnesses had recorded their statements when the Supreme Court had granted post-arrest bail to Imran Khan and Shah Mahmood Qureshi.
The AGP said that 13 witnesses had recorded their testimonies.
At this, Justice Aurangzeb remarked that the Supreme Court had noted in its order that the evidence in the case was insufficient. “Let’s suppose that an appeal comes tomorrow and I am hearing it, what will you expect from me?” he asked. The judge further observed that there was “inaccuracy” in the special court judge’s decision, adding that there were times when a case was fine but it was messed up.
Justice Aurangzeb also noted that the AGP had to carefully delve deeper into these matters.
“We try to write [everything] with the law. Across the world, the law is our source,” he added.
At one point, the FIA prosecutor read out loud the Criminal Law (Amendment) Bill, 2023, and also referred to previous judgments related to the matter. However, Justice Aurangzeb reiterated that there were legal errors in the matter. While presenting his arguments, Barrister Raja said testimonies of witnesses recorded during in-camera proceedings were already available on the internet as everything was written in the certified copy of the court order.
He added that the certified copy was a public document.
At this, the court ordered the PTI counsel to present the same in court. Justice Aurangzeb then remarked that SC had declared the evidence in the case insufficient.
“My mind got very clear today,” the judge added and then adjourned the hearing till January 11.
Later, the IHC issued an interim order and barred the special court from moving ahead in the case till the next hearing.
Copyright Business Recorder, 2023
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