A divisional bench of the Islamabad High Court declared on Tuesday that PTI chief Imran Khan’s jail trial in the cipher case was illegal which means the trial would again be conducted in an open court.

“The proceedings with effect from August 29, 2023, and the trial conducted […] in jail premises in a manner that cannot be termed as an open trial stand vitiated,” a two-member IHC bench said in its short order.

Hours earlier, the bench comprising Justice Saman Rafat and Justice Gul Hassan Aurangzeb reserved the judgement and said it would be announced on the same day around 5pm. But it was announced around half an hour after the scheduled time.

The cipher case pertains to a diplomatic document that reportedly went missing from Khan’s possession. The PTI alleges that the document contained a threat from the United States to oust Imran from office because of his stance on Russia.

The court also declared Khan’s intra-court appeal against a single-member bench maintainable. Last month, the IHC disposed of a petition challenging the PTI chairman’s jail trial.

But the court declared the designation of the special court, established to try cases under the Official Secrets Act, “valid and lawful”.

According to the order, there was no provision in the Code of Criminal Procedure, which compelled a magistrate to hold his court in a usual courtroom. But it added that jail trial can be conducted “in exceptional circumstances” in a manner that fulfilled the “requirements of an open trial or a trial in camera provided it is in accordance with the procedure provided by law.”

It added that the notification issued by the law ministry on August 29 was declared to be “without lawful authority and no legal effect for want of an order by the appropriate government and fulfillment 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.”

The notification had stated that the interior ministry had conveyed “security concerns” to it in a letter and that the Law and Justice Division had “no objection” to Khan’s trial in the cipher case being held at Attock jail.

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Further, notifications issued by the law ministry regarding Khan’s jail trial on September 12, September 25, October 3, and October 13 were declared to be “without lawful authority and no legal effect”.

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” for not having been preceded by an order of the learned special court judge. The court said that the November 15 notification “cannot be given retrospective effect”.

Last week, the IHC declared an intra-court appeal admissible against the jail trial of the PTI chairman in the cipher case and the appointment of a judge of the special court, established under the Official Secrets Act.

Hearing

Justice Aurangzeb said that a short order would be revealed on Tuesday and the detailed order would be announced later.

Khan’s lawyer, Salman Akram Raja, resumed his arguments and argued that there was a mechanism to announce a jail trial and that the judge should have passed an order that elaborated on his reasons for taking the decision.

He also added that the government had issued a notification on November 10 but the judge had never asked for the notification to apply retrospectively.

He said that if the federal government took approval from the federal cabinet for jail trial then it was necessary to inform the high court. In the instant case, there was no approval of the cabinet before November 12.

The lawyer said that the federal cabinet had given the approval for the jail trial of the PTI chairman, but there was no basic judicial order about it. The trial court’s judge wrote the last letter to the law ministry on November 8, but that did not have the status of a judicial order.

The trial was shifted to jail after a hearing on August 16, he said.

Justice Miangul Hassan said that the IHC registrar had told that the process of appointing a judge was initiated by the IHC and the trial court judge also informed the high court before the jail hearing.

In response, Attorney General for Pakistan Mansoor Awan told the court that the jail trial was in fact an “open trial”.

He admitted that Khan’s family had not been allowed into the courtroom in the initial hearings but he attributed it to the fact that the room where proceedings were held was not big enough to accommodate enough people.

The AGP also added that a single bench of the IHC had already passed an order regarding the matter.

Earlier, the single-member bench had terminated the appeal of the PTI chairman, who challenged the trial court’s verdict for jail trial.

(With input from APP)