IHC nullifies August 29 notification for Imran Khan's jail trial in cipher case

• Ruling comes on Imran Khan's intra-court appeal against his jail trial.
• IHC says jail trial can be conducted in "exceptional circumstances".
• Court says Nov 15 notification "can't be given retrospective effect".

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ISLAMABAD: The Islamabad High Court (IHC) Tuesday nullified the notification for conducting former prime minister and Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan's jail trial on charges of leaking state secrets — issued on August 29. 

A special court has been conducting the trial in jail citing security concerns since Khan was indicted on the charges last month. The PTI chairman is currently in Adiala jail after he was indicted by the special court on October 23.

"Islamabad High Court has declared illegal the notification for jail trial," said Naeem Panjutha, the lawyer, in a post on social media platform X.

The ruling came as a division bench comprising Justice Miangul Hassan Aurangzeb and Justice Saman Riffat Imtiaz announced the verdict it reserved earlier in the day on the intra-court appeal filed by the PTI chief against his jail trial.

It seems like, after the order, the court proceedings that have taken place in jail have been nullified as a whole.

Allowing Khan's intra-court appeal, the division bench declared the law ministry's notification "to be without lawful authority and no legal effect".

The IHC stated in the three-page short order that the jail trial can be conducted in "exceptional circumstances".

"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."

The court also declared that the November 15 notification issued by the Ministry of Law and Justice after the caretaker cabinet's approval of the jail trial "cannot be given retrospective effect".

It further stated that all the notifications issued by the ministry with regard to conducting the jail trial are of no legal effect for not adopting due procedure and non-fulfilment of requirements.

Moreover, the IHC also ruled on the designation of the special court judge and declared the appointment legal.

"The designation of the Special Court (Anti-Terrorism-I) Islamabad, to try cases reported under the Official Secrets Act, 1923 through notification (F.No.40(64)/2023-A-VIII) dated 27.06.2023 issued by the Ministry of Law and Justice is valid and lawful," it read.

On August 29, the Ministry of Law issued a no-objection certificate (NOC) for the jail trial of the former prime minister as requested by the Interior Ministry and special court Judge Abual Hasnat Zulqarnain.

In a hearing on November 14, the high court suspended Khan's jail trial in the cipher case. This order came after the caretaker federal cabinet approved the jail trial of Khan and Shah Mahmood Qureshi in the case.

Previously, the deposed prime minister — who was ousted from office following a no-confidence motion in April last year — had moved IHC against the jail trial which was rejected by the court's single bench on October 16.

IHC Chief Justice Aamer Farooq's single-member bench ruled that there was no apparent malice behind conducting Khan's jail trial in the cipher case. The court also directed him to approach the trial court if reservations persist.

Later, Khan filed an intra-court appeal against the single bench's decision.

In August of this year, Khan and Qureshi were booked under the Official Secrets Act 1923 in the cipher case after the Federal Investigation Agency (FIA) invoked Section 5 of the said law.

The diplomatic cable reportedly went missing from Imran's possession. According to the former ruling party, the cable contained a threat from the United States to topple the PTI’s government.

Why do jail trials take place?

The former attorney general of Pakistan, Ashtar Ausaf Ali, told Geo News that the law dictates that it is the trial court’s prerogative to decide where it wants to conduct the trial.

In this case, specifically, concerns have been raised regarding the suspect’s security, and due to those, the decision was taken to conduct the trial inside the jail premises, he said.

Ausaf said jail trials aren’t conducted just because the proceedings might be sensational and neither do they take place to punish a person.

“The reason behind it is three-fold: security concerns, the safety of the witnesses and the records they might bring with them, and then there are some matters that aren’t preferred to be made public, including matters related to national security.”

In this case, he said, people will get more clarity once the order is released.

But, he said, the court hasn’t ruled out a jail trial, it has just said that the procedure adopted for the jail trial wasn’t right.

What is ciphergate?

The controversy emerged on March 27, 2022, when Imran Khan — less than a month before his ouster in April 2022 — while addressing a public rally waved a letter before the crowd, claiming that it was a cipher from a foreign nation that had conspired with his political rivals to have PTI government overthrown.

He did not reveal the contents of the letter nor did he mention the name of the nation it came from. But a few days later, he accused the United States of conspiring against him and alleged that Assistant Secretary of State for South and Central Asia Affairs Donald Lu had sought his removal.

The cipher was about former Pakistan ambassador to the US Majeed's meeting with Lu.

The former prime minister, claiming that he was reading contents from the cipher, said that "all will be forgiven for Pakistan if Imran Khan is removed from power".

Then on March 31, the National Security Committee (NSC) took up the matter and decided to issue a "strong demarche" to the US for its "blatant interference in the internal affairs of Pakistan".

Later, after his removal, then-prime minister Shehbaz Sharif convened a meeting of the NSC, which came to the conclusion that it had found no evidence of a foreign conspiracy in the cable.

In the two audio leaks that took the internet by storm and shocked the public after these events, the former prime minister, then-federal minister Asad Umar, and then-principle secretary Azam Khan could allegedly be heard discussing the US cipher and how to use it to their advantage.

On September 30, the federal cabinet took notice of the matter and constituted a committee to probe the contents of the audio leaks.

In October, the cabinet gave the green signal to initiate action against the former prime minister and handed over the case to the FIA.

Once FIA was given the task to probe the matter, it summoned Imran, Asad Umar, and other leaders of the party, but the PTI chief challenged the summons and secured a stay order from the court.

In July 2023, the Lahore High Court (LHC) recalled the stay order against the call-up notice to Imran by the FIA and a formal trial was commenced.

In August, Khan and Qureshi were booked under the Official Secrets Act 1923 in the cipher case after the Federal Investigation Agency (FIA) invoked Section 5 of the said law.

Khan and Qureshi have been indicted by the special court and are currently incarcerated in Adiala jail in the cipher case.