The Islamabad High Court (IHC) on Tuesday reserved its verdict on a petition filed by PTI Chairman Imran Khan challenging the decision to conduct the trial in the cipher case at Attock jail.

The PTI chief was sent to jail on August 5 after he was convicted in the Toshakhana case. On August 29, the IHC had suspended his sentence. However, a special court had directed Attock jail authorities to keep him in “judicial lockup” in connection with the cipher case.

Last month, the law ministry had designated Anti-Terrorism Court (ATC) judge Abual Hasnat Zulqarnain as the judge of the special court to try suspects under the Official Secrets Act.

The special court had subsequently extended Imran’s judicial remand till Sep 13 (tomorrow) during a hearing held at Attock jail.

On August 30, Imran had approached the IHC against the appointment of Judge Zulqarnain to the special court and also raised objections to the law ministry’s notification allowing the trial to be heard in prison.

IHC Chief Justice Aamer Farooq presided over today’s hearing during which lawyer Sher Afzal Marwat appeared on behalf of the PTI chief.

Marwat read out the notification issued by the law ministry. He then proceeded to question the laws under which the ministry had allowed for the trial to be shifted to Attock jail.

“How can a trial be transferred from Islamabad to Punjab?” the lawyer asked. He stated that only the Supreme Court could transfer a trial from one province to another.

“The chief commissioner or the interior secretary do not have the authority to transfer a trial to another province,” he said, adding that the move to shift the hearing of the case to Attock jail was prompted by “malice”.

He said that the purpose of the notification issued for changing the venue of the hearing was to keep Imran in Attock jail. “So far, it has not been revealed under which laws this notification was issued,” Marwat said.

“Only the Supreme Court has the authority to transfer the trial from Islamabad to another province,” he reiterated. He stated that Islamabad was an autonomous territory and did not come under the jurisdiction of any province.

He said that the process for changing the venue of a hearing was clearly stated in the law. He said that the consent of the relevant judge was also required to do so.

Marwat said that after the IHC suspended Imran’s three-year sentence in the Toshakhana case, the ex-premier could not have been kept in Attock jail. He stated that there was no reason to keep the PTI chairman incarcerated at Attock jail, adding that Imran had been granted bail in the Toshakhana case.

Additional Attorney General (AAG) Munawar Iqbal Duggal then came to the rostrum, and said that the notification concerning the trial at Attock jail was a one-time thing.

“When the notification was for one time, their (PTI’s) petition has become infructuous,” he said. He also highlighted that according to the rules of business, the law ministry had the authority to issue the notification.

He said that the court was transferred to Attock Jail for the hearing on August 30. “The law ministry issued the notification and it has the authority (to do so),” he said. He added that the ministry had also issued the no-objection certificate (NOC) that there were no objections to doing so.

“A jail trial is not something that doesn’t happen,” the IHC CJ remarked at one point. Justice Farooq then asked about the process for conducting a trial in jail.

At this, Prosecutor Zulfiqar Abbas Naqvi said that the trial of the cipher case was not currently ongoing. He stated that the ministry had issued the notification in accordance with the law.

After hearing the arguments, Justice Farooq reserved the verdict in the case.

The petition

The petition said that the special court judge lacked the essential qualifications needed for the role, citing the qualifications of an ATC judge had been defined under Section 13(2) of the Anti-Terrorism Act, 1997.

“Therefore, reducing the rank and status of learned administrative judge of the ATC, Islam­abad, to the status of a magistrate is a mockery of the law and void-ab-initio,” it said.

It went on to state that an ATC judge was defined under Sections 13 (establishment of ATC) and 14 (composition and appointment of presiding officers of ATCs) of the ATA, according to which, the presiding judge of an ATC, “under no stretch of imagination, could be a magistrate”.

The petition further said that the appointment was contrary to the law and “void-ab-initio” as the special court judge was not a magistrate under section 4(m-a) of the CrPC, which defines a magistrate.

Giving details of the grounds against moving of the special court to the Attock jail, the plea said the production order issued by the judge was a “judicial order, which has neither been recalled nor reviewed” by the court concerned.

It added that the respo­n­dents were not vested with any such powers under Section 9(2) (court of session) of the CrPC. Citing the “security concerns” co­n­veyed by the interior ministry, the petition arg­ued that the “respondents never considered allowing Mr Khan to appear before any Islamabad court via the video link when he himself expressed similar concerns”.

“The claim in the name of security is farce, false and misguiding,” it said, while terming the notification bereft of reasoning and logic.

The petition further said that the cipher case was at its pre-trial stage, at which the venue of the trial could not be changed. It added that the law ministry had no authority to extend its jurisdiction to Punjab and determine a venue that does not lie within the federal government’s administrative control.