ISLAMABAD: Federal Investigation Agency (FIA) contended that Islamabad High Court (IHC)’s order to release Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan and former Foreign Minister Shah Mahmood Qureshi in the cypher case does not reflect any ground of acquittal.
“The impugned judgment/short order of IHC does not reflect any ground of acquittal of the respondents, even it is not observed that the prosecution has failed to prove its case beyond any shadow of doubt,” said the FIA appeal, filed on Thursday against the IHC’s order dated June 3, 2024.
A division bench of IHC comprising Chief Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb on June 3, 2024, acquitted PTI leaders, Imran Khan and Shah Mahmood by annulling their conviction in the cypher case.
The IHC’s short order stated; “For the reasons to be recorded later, instant appeal is allowed and judgment dated 30.01.2024 is set aside; consequently, the appellants namely Imran Khan and Makhdoom Shah Mehmood Qureshi are acquitted of the charges in case FIR No.06 dated 15.08.2023 under section 5/9 of Official Secrets Act, 1923 read with section 34 PPC, 1860 registered with Police Station Counter- Terrorism Wing/FIA, Islamabad.”
It said that the Official Secrets Act (OSA), 1923, does not provide the provision of filing an against the judgment of the Special Judge. The right of appeal is a statutory right and it cannot be availed unless it is expressly conferred by law, therefore, the impugned judgment is not sustainable in the eyes of law.
The Official Secrets Act, 1923 is not a schedule offence of the Pakistan Criminal Law (Amendment) Act, 1958. The Section 13 (6) of the Act empowers the appropriate government that if it thinks fit by general or special order direct that the procedure for the trial of an offence under Section 5 and 9 shall be as prescribed for offences under the Pakistan Criminal Law Act. It is nowhere present in the statute that for filing an appeal the provision of Criminal Law shall be applicable.
The agency submitted that 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.
The appeal said that the special law will have the overriding effect on the general law, as such the Criminal Procedure Code is not applicable in case of accused tried for offences under the OSA in light of Section 5(2) of CrPC as such the provisions of Section 410 CrPC are not available to a convict under the provision of OSA, as such very entertainment of the appeal under the provisions mentioned in the memo of appeal are not permissible under the law.
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 evident 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, therefore the trial court appointed 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 High Court did not consider this aspect while acquitting the respondents.
It is a settled principle of law that if at all courts come to the conclusion that the trial was not carried out in view of Article 10-A of the constitution, then the only way out is to remand the matter to the trial court for giving proper opportunity.
The prosecution has produced overwhelming evidence in support of its case.
Moreover, the admission made by the accused during the cross examination as well as in examination under Section 342 of CrPC, which are sufficient to establish the case beyond any shadow of doubt.
Copyright Business Recorder, 2024