ISLAMABAD: The federal government on Thursday moved two separate appeals before the Supreme Court, challenging the Islamabad High Court’s (IHC) decision to acquit former prime minister Imran Khan and ex-foreign minister Shah Mehmood Qureshi in the cipher case.

The appeal, instituted through Advocate Mudassar Hussain Malik on behalf of the interior ministry under Article 185, requested the court to overturn the June 3 order, in which an IHC division bench consisting of Chief Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb had acquitted the PTI leaders after accepting appeals against their convictions in the cipher case.

In Feb, a special court set up under the Official Secrets Act had handed down a ten-year sentence to Imran Khan with an observation that his unfurling of the cipher telegram and disclosure of its contents at a public rally undermined the cipher system of Pakistan, which in turn benefited unfriendly foreign powers, directly or indirectly. Now the appeal before the Supreme Court pleads that the high court short order was perverse, arbitrary, and contrary to the material available on the record and therefore should be set aside.

According to the appeal, the Official Secrets Act 1923 does not provide the provision of filing an appeal against the judgement of the special judge. The right of appeal is a statutory right and it cannot be availed unless it is expressly conferred by law.

Appeals say IHC verdict letting Imran, Qureshi off the hook was ‘arbitrary and contrary’ to material on the record

Moreover, the high court while passing the short order did not appreciate that it lacks jurisdiction or power to create rights which are not provided by the Constitution or a validly enacted law, the appeal contended, adding it was neither a case of casus omissus (a situation not provided by statute) nor necessitated application of the doctrine of “reading in” as no constitutional guarantees have been violated.

Besides, OSA 1923 is not a scheduled offence of the Pakistan Criminal Law (Amendment) Act, 1958. Section 13 (6) of OSA empowers the appropriate government to direct that the procedure for the trial of an offence under Section 5 and 9 will be as prescribed for offences under the Pakistan Criminal Law (Amendment) Act, 1958.

It is nowhere present in the statute that for filing an appeal the provisions of the Pakistan Criminal Law (Amendment) Act, 1958, will be applicable. It is an established principle of law that where the legislature has not provided something in the language of the law, the court cannot travel beyond its jurisdiction and read something to the law as the same would be ultra vires the powers available to the court under the Constitution and would constitute an order without jurisdiction, the petition contended.

Since the special law will have the overriding effect on the general law, the criminal procedure code is not applicable in case of the accused being tried for offences under OSA, it added.

According to the appeal, the conduct of the respondents was non-cooperative throughout the trial and they made every possible effort to delay the proceedings. It said the trial court record was evident that 65 miscellaneous applications were moved by the respondents, which were heard and decided by the trial court. The matter was adjourned many a time at the request of the respondents or their counsel. The witnesses remained present in the court, but their cross-examination was not carried out by the defence counsel.

The trial court appointed the defence counsel at the expense of the state, who had completed the trial, the petition said, adding the respondents allegedly tried to defeat the cause of justice by procrastination.

It is a settled principle of law that if at all courts come to the conclusion that the trial was not carried out in view of Article 10-A (fair trial) of the Constitution, the only way out provided under the law was to remand the matter to the trial court for giving proper opportunity.

The prosecution had produced overwhelming evidence in support of its case, the petition said, adding the admission made by the accused during the cross-examination as well as in examination under section 342 CrPC, were sufficient to establish the case beyond any shadow of a doubt.

Published in Dawn, June 14th, 2024