• Justice Aurangzeb stays proceedings till Jan 11, says 4-week deadline for final decision ‘removed’
• Notes conduct of trial will have consequences for its legality; 25 out of 27 witnesses testify
• Imran, Bushra to be indicted in Toshakhana reference on Jan 4

ISLAMABAD: The Islamabad High Court on Thursday once again restrained a special court seized with the cipher case against former prime minister Imran Khan and his close aide Shah Mehmood Qureshi from proceeding against the suspects, in light of glaring irregularities in the in-camera trial.

During the hearing of a petition lodged by former PTI chairman Imran Khan, Justice Miangul Hassan Aurangzeb issued a stay order till Jan 11 against the trial while it was on the verge of completion. He also expressed concerns about the way the trial court recorded the statements of 25 out of a total of 27 witnesses excluding the public and media to witness the trial.

Justice Aurangzeb also referred to a detailed judgement he recently issued against the jail trial of Mr Khan and Mr Qureshi in the same case. An IHC division bench comprising Justice Aurangzeb and Justice Saman Rafat Imtiaz in this landmark judgement elaborated the concept of “open court” and linked it with the with transparency, impartiality, and independence of the judiciary. The division bench had scrapped the proceedings of the trial court and remanded the matter back for a de novo trial.

Salman Akram Raja, counsel for Imran Khan, argued that the trial court judge Abual Hasnat Mohammad Zulqarnain recommenced the trial at Adiala Jail in alleged violation of rules and held the proceedings in camera.

Furthermore, through the said order, the reporting or publication of the proceedings by the print, electronic and social media was prohibited. A direction was issued to the Pakist­an Tele­communication Auth­ority and the Pakistan Electronic Media Regu­latory Authority to ensure that no reporting concerning the proceedings before the said court takes place.

Justice Aurangzeb recalled that during the previous round of hearings, Attorney General Mansoor Usman Awan had “assured proceedings will be conducted in a fair manner and it will be done like other cases”.

The judge remarked that the court was not examining the security reports on the basis of which the judge decided for the jail trial, adding, “If the trial is conducted in jail, there are certain guidelines in the judgement.”

‘Behind closed doors’

Justice Aurangzeb remarked that his understanding was that the trial would be held in open court, a more congenial room would be arranged for the court, and access would be given to media and family members of the suspects. However, what was happening in the court was quietly different, as the trial was being held behind closed doors in the jail, he added.

Advocate Raja argued that the decision to conduct in-camera proceedings was also against the law.

Attorney General Awan argued that the “provision of the Official Secrets Act empowers the judge to hold trial in camera”. He informed the court that 25 prosecution witnesses had recorded their statements in the case.

“I am a little concerned about the way this proceeding is conducted,” said Justice Aurangzeb, adding that the judge may be working under constraint, but the SC had removed the four-week deadline.

AGP Awan said: “13 witnesses have been examined in camera, out of them two have been cross-examined and the third witnesses partially examined from Dec 15 to date.” He offered that except for four witnesses who were related to the cipher security system, the testimony of the rest of the nine witnesses recorded in-camera could be revoked. Justice Aurangzeb said it would be decided in the final order.

After Dec 21, 12 more witnesses were examined in open proceedings. Advocate Raja rejected the claim that the proceeding was held in open court.

The court reporters informed the learned judge that the jail administration did not allow them to cover the proceedings.

Justice Aurangzeb asked the attorney general: “Was it an open trial?” Allowing one or two people to witness the proceedings on pick and choose basis could not be considered an open trial, he added.

He pointed out that the Official Secrets Act was promulgated in 1923, when there was no concept of a fair trial or fundamental rights. Justice Aurangzeb intended to examine the act and termed it a “case of first impression” and “needs to be decided judiciously in the perspective of Article 10-A”.

He perused the SC order which granted bail to Mr Khan and Qureshi and observed that the apex court did not consider the material of substantive value placed on record.

Justice Aurangzeb in the order cited the previous order of the division bench in which the concept of fair trial was discussed. The order stated: “The right of an accused for his trial to be conducted in open court can be negated only after an order supported by reasons is passed under Section 14 of the Official Secrets Act.”

The conduct of proceedings which need not be in-camera i.e., the recording of the evidence of witnesses which causes no prejudice to the safety of the state would in the realm of criminal law have consequences on the legality of the entire trial.

Justice Aurangzeb remarked that the special court is proceeding with the trial on a “day-to-day” basis.

“Earlier, this was done pursuant to an order dated 08.11.2023 passed by this court in conclusion of the trial within one month, but the said order was set aside by the Supreme Court… Therefore, in order to prevent these proceedings from becoming fait accompli, further proceedings in the trial are stayed until the next date of hearing.”

Further hearing in this matter was adjourned till Jan 11.

Toshakhana reference

Meanwhile, an accountability court in Islamabad decided to indict former prime minister Imran Khan and his spouse Bushra Bibi in the Toshakhana reference on Jan 4.

During the proceedings at Adiala Jail, the court was told that copies of the reference had been shared with the counsel for the suspects. Subsequently, the court adjourned the hearing till Jan 4 when it would frame charges against Mr Khan and Bushra Bibi.

Published in Dawn, December 29th, 2023