October 27, 2023
ISLAMABAD – The Islamabad High Court (IHC) on Thursday rejected PTI Chairman Imran Khan’s petition challenging his indictment in the cipher case.
IHC Chief Justice Aamer Farooq disposed of the former premier’s plea but directed that Imran be provided a “fair trial”.
The cipher case pertains to a diplomatic document that the charge sheet claims was never returned by Imran. The PTI alleges that the document contained a threat from the United States to oust Imran from office.
The PTI chief was convicted and sentenced to three years in prison in the Toshakhana graft case on Aug 5. The IHC suspended his sentence on August 29 but he remained in jail because he was on judicial remand in the cipher case.
On Sept 30, the Federal Investigation Agency (FIA) had submitted a challan — a charge sheet — in a special court established under the Official Secrets Act naming PTI leader Shah Mahmood Qureshi and Imran as the principal accused in the case.
On Monday, both the PTI leaders were indicted in the case. According to sources, the two PTI leaders pleaded not guilty and subsequently, the judge summoned the witnesses on Oct 27 and asked the prosecution to place evidence to substantiate the allegations.
Subsequently, Imran petitioned the IHC against his indictment, saying that the judgment was passed in “sheer haste”. It also urged the court to declare the exercise of framing of charges to be “illegal, unlawful and against the settled principles of the Code of Criminal Procedure”.
The petition was taken up by the IHC CJ today.
At the outset of the hearing, PTI lawyer Salman Safdar said that it took him 10 days to complete his arguments on another petition filed by Imran seeking bail in the said case.
Justice Farooq remarked that he was also taking time in announcing the verdict because such a matter had emerged for the first time and arguments by both sides were presented properly.
Safdar then stated that the copies of the cipher case challan had been distributed in the court. “They clearly show that he [Imran] was indicted within a few days,” he said.
“The entire case revolves around this document but the cipher is neither part of the challan nor the case file,” he contended, adding that his client wanted to record statements of three witnesses tomorrow.
“Please grant us some relief,” the lawyer requested.
He further highlighted that three things were ignored in the case. “The arrest was secret, the remand was secret and charges were framed on the sixth day,” Safdar added.
After hearing the lawyer’s arguments, the court reserved its verdict on Imran’s petition.
The petition 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 Imran’s answer to the same.
“Have you understood the charge,” the court had asked.
Imran’s answer was, “I have not been given the complete document. Until they are supplied to me, cannot possibly 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 the 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 not curable and must have caused serious prejudice to the accused”.