• Claims he was indicted in absence of ‘main documentary evidence’
• Justice Sattar recuses himself in £140m graft case
• LHC hearing in May 9 case does not take place as cause list cancelled

ISLAMABAD: Claiming that the trial judge had committed “gross illegality” by framing the charge in absence of the main documentary evidence, Pakistan Tehreek-i-Insaf (PTI) Chair­man Imran Khan on Wednesday approached the Islamabad High Court (IHC) against his indictment in the cipher case.

The Special Court (Official Secrets Act) had indicted Mr Khan and party Vice Chairman Shah Mehmood Qureshi in the case on Oct 23.

The former prime minister and former foreign minister, respectively, have been accused of violating sections 5 and 9 of the Official Secrets Act for disclosing the contents of the classified diplomatic cable and misplacing the document.

The petition, filed against the indictment of Mr Khan, stated that the ex-premier was “compelled to associate in framing of charge proceeding and to the questions”.

It reproduced a question posed by the court and Mr Khan’s answer to the same.

“Have you understood the charge,” the court had asked.

Mr Khan’s answer was, “I have not been given the complete document. Until they are supplied to me, cannot possible understand the charge?”

The petition stated: “The above-mentioned answer reveals that complete docum­­ent[s] were not provided, an essential procedural step not complied with by the prosecution and overlooked by the trial court.”

The petition went on to object to the indictment, saying the trial judge had committed ‘gross illegality’ by framing the charge in the absence of the main documentary evidence around which the entire prosecution case is revolving as per the FIR. The remand application and challan, the whole “prosecution case allegedly relates to unauthorised use of cipher telegram after twisting facts which are prejudicial to national security,” it added.

The petition termed the entire exercise futile as cipher was neither made part of challan nor was it included in documents provided to the suspects.

“When the main evidence does not exist then there is no justification for the trial court to frame charge and instead [trial court] should have… honourably acquitted the petitioner and others in [the] baseless case,” the petition said, adding “in the absence of this crucial evidence the trial simply cannot proceed further”.

According to the petition, the court “simply refused to entertain and hear submission of defence to avail appropriate remedies under the Code of Criminal Procedure 1898 for discharge/acquittal prior to the framing of charge”.

The petition stated that “the defect is no curable and must have caused serious prejudice to the accused”.

Corruption case

Separately, Justice Babar Sattar of the IHC recused himself from hearing a petition seeking restoration of Mr Khan’s pre-arrest bail plea in the 140 million pounds corruption case.

An accountability court had dismissed the plea over Mr Khan’s absence while he was detained in Attock Jail following his conviction in the Toshakhana case.

Sardar Latif Khan Khosa, counsel for Mr Khan, informed the high court that another bench had allowed similar petitions for the restoration of bail pleas in seven cases.

Justice Sattar remarked that since his stance is different from other members of the bench that the counsel had referred to, he cannot hear the petition.

Bench’s unavailability

In Lahore, the hearing on Mr Khan’s petitions challenging the dismissal of his pre-arrest bail requests in May 9 cases could not be held due to the unavailability of a two-judge bench of the LHC.

The petitions were fixed before the bench comprising Justice Aalia Neelum and Justice Asjad Javed Ghural. However, the petitions could not be taken up due to the cancellation of the cause list.

An anti-terrorism court on Aug 11 had dismissed Mr Khan’s pre-arrest bail pleas in seven cases of May 9 riots for non-appearance.

Wajih Ahmad Sheikh in Lahore also contributed to this report

Published in Dawn, October 26th, 2023