IHC to resume hearing in appeals against convictions in Cipher and Toshakhana cases

Source: The Nation

ISLAMABAD - A special bench of the Islamabad High Court (IHC) will Tuesday (tomorrow) resume hearing in the appeals of former prime min­ister Imran Khan, his wife Bushra Bibi, and former foreign minister Shah Mehmood Qureshi against their convictions in Cipher and Toshakhana cases.

The IHC special bench com­prising Chief Justice of IHC Jus­tice Aamer Farooq and Justice Miangul Hassan Aurangzeb will conduct hearing of these appeals. Previously, assistant attorney general informed the bench that the appointment of two special prosecutors of FIA in this case is yet to be made and requested the court to defer the case. Ex­pressing his annoyance over it, Justice Miangul Hassan said that the court is not accepting such things and it is the responsibil­ity of the government to appoint the prosecutors when the mat­ter is fixed before the court. The bench also directed the assistant attorney general to take notes of the hearing of the case till the ap­pointment of the prosecutor.

Barrister Salman Safdar coun­sel representing Imran informed the bench that the trial court recorded the statements of 25 prosecution witnesses till mid­night which was unprecedented. He requested the court to sus­pend Imran's conviction as well as his 10-year sentence. Later, the court said that the court will hear them regarding suspension of sentence on the next hearing to be held in next week on Tues­day. It also directed the govern­ment to complete the process of appointment of prosecutors till then. In the second appeal relat­ed to Toshakhana case, the NAB prosecutor sought some time as special prosecutor is not avail­able due to death of someone in his family and requested the court to defer the case till March 11. However, IHC Chief Justice said that you are not supposed to run the court in this way and directed the NAB to ensure its presence on the next hearing to be held on March 5.

In this matter, Imran, Bushra and Qureshi moved the peti­tions through their counsels Barrister Ali Zafar, Salman Saf­dar Advocate and others and cited the State and Chairman National Accountability Bureau (NAB) and Secretary Interior as respondents. Khan and Qureshi have challenged the convic­tion and their 10-year sentence each in the cipher case. Khan and Bushra Bibi filed appeals against their conviction in the Toshakhana reference in which they were sentenced to 14 years' imprisonment each and a Rs1.54 billion fine. Imran's counsel stated in the petition that the appellant along with the co-accused, Shah Mehmood Qureshi, faced trial in Case FIR No.06/23 dated 15.08.2023 ("Cypher Case") under Sections 5 and 9 of the Official Secrets Act, 1923 read with Section 34 of the Pakistan Penal Code (PPC), 1860. The Appellant was arrested on 15.08.2023 and is aggrieved with the conviction-and sentence awarded in the instant case through judgment dated 30.01.2024 passed by Abu-al Hasnat Muhammad Zul­garnain, Special Judge (Official Secrets Act, 1923), Islamabad.

He adopted the stance that in this case, the prosecution im­properly documented evidence in violation of the mandatory provisions outlined in the Crim­inal Procedure Code. 1898 and despite the repeated objections raised by the appellant, the trial court refrained from interven­ing. Imran's counsel stated that vide order dated 16.01.2024 and reiterated in subsequent orders passed by the Special Judge, it was clarified that the examination-in-chief of PWs will be conducted first in one stretch, and the cross examina­tion would be, conducted at a second stage, after their exam­ination-in-chief was concluded.

He added that the proceed­ings were hurried through by the court in breakneck speed for reasons known only to the Court itself, and in five daily hearing, evidence of 25 PWs was record­ed. He mentioned that during all this time from 15.01. 2024 to 23.01.2024 and even through­out the trial, the appellant and appellant's lawyers never cre­ated any hurdle in the dispensa­tion of justice and conclusion of the trial and there was, there­fore no reason for the Court to later on take extreme illegal steps to remove the appellant lawyers from the proceedings.

The counsel added that the defence counsel appointed at state expense was one namely Malik Abdul Rehman, Advocate High Court, who was a mem­ber of prosecution team in this very case and number of times attended the case with learned special prosecutor namely Raja Rizwan Abbasi and this fact was also agitated before the court but the court paid no heed to this il­legality also. Barrister Zafar ar­gued that both, Imran Khan and his wife, were subjected to sham trial where the Courts were pro­ceeding not only unfairly and with undue haste but also ignor­ing the very basic fundamental right of fair trial and due process.

He contended in these ap­peals that Imran Khan and his wife have been erroneously convicted and sentenced by the Accountability Court and the Special Judge and their freedom and liberty have been curtailed in a brazen violation of their fundamental rights guaranteed under the Constitution of Paki­stan, 1973. The evidence pre­sented against them is deficient in every manner and simply fails to connect them with the alleged charges. The appeals further pointed out that while passing their respective judge­ments both, the NAB Authori­ties and Special Judge, have caused grave injustice upon the aggrieved as firstly their trials in both cases were concluded in a matter of two to three weeks. Secondly, when the Islamabad High Court had directed the authorities to conduct an open trial yet public, media etc were not allowed to witness the trial freely and instead proceedings were carried out secretly and surreptitiously by also chang­ing the court rooms without the information of the aggrieved and their counsels.

He added that thirdly, the judgements are illegal and unconstitutional because the rights of Imran Khan and his wife of fair trial under Article 10A of the Constitution have been infringed when their tri­als were concluded with undue haste as if they had to be con­cluded before the date of gen­eral elections on 08/02/2024. It was further contended by Barrister Zafar that during the jail trials both, Imran Khan and his wife, were not allowed to produce evidence in defence as their right to cross-examine the prosecution witnesses (which included amongst others the most instrumental witness, Mr. Azam Khan) was illegally and unlawfully closed and their lawyers were illegally replaced with the court appointed state counsels which were in fact picked up from the team of prosecution lawyers.

Similarly, the Section 342 Cr.PC. statement of Imran Khan was not recorded nor his lawyers were allowed to present their concluding argu­ments. Therefore, he prayed that the judgements passed by the NAB authorities and Special Judge in jail trials of Toshakhana and Cypher cases be set aside, they be acquitted from charges and their sentence and convic­tion may be suspended.