ISLAMABAD: The federal government on Thursday challenged in the Supreme Court acquittal of former prime minister Imran Khan and former foreign minister Shah Mahmood Qureshi in the cipher case with the contention that the high court lacks jurisdiction or power to create rights not provided by the Constitution or a validly enacted law.
The Federation through the interior secretary filed an appeal in the apex court under Article 185(3) of the Constitution against the judgement delivered by the Islamabad High Court on June 3, acquitting Pakistan Tehreek-e-Insaf (PTI) founder chairman Imran Khan and vice chairman Shah Mahmood Qureshi. The Federation, while making Imran and Qureshi as respondents, prayed the apex court that leave to appeal against the IHC judgement be granted and petition may be converted into an appeal. It further prayed the apex court to set aside the IHC judgment as well.
The federal government contended that 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 of the Constitution, the only way provided under the law is to remand the matter to a trial court for giving proper opportunity. In this respect, reliance was made 2011 SCMR 23 titled as “Abdul Ghafoor Vs The State”, 2011 SCMR 735 titled as “Ghulam Rasool Shah and others Vs The State”, PLD 2024 SC 509 titled as “Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution”. The government submitted that as such the acquittal of the respondent are contrary to the settled principle of law, hence the IHC judgement is liable to be set aside.
It is pertinent to mention here that the Islamabad High Court on June 3, after allowing the appeal, set aside the order of trial court and had acquitted Imran Khan of charges in case FIR No.06 dated 15.08.2023 under section 5/9 of the Official Secrets Act 1923 read with section 34 PPC 1860 registered with Police Station Counter Terrorism Wing/FIA, Islamabad. The high court had directed that Imran be released forthwith, if not incarcerated in another case while similar order was also passed in the appeal, filed by Shah Mahmood Qureshi.
In its appeal, the Federation questioned as to whether the entertainment of appeal under the provisions of Pakistan Criminal Law (Amendment) Act 1958 and Criminal Procedure Code in the case falling under the Official Secrets Act 1923 is without jurisdiction and ultra vires? It further questioned as to whether the high court lacks jurisdiction or power to create rights which are not provided by the Constitution or a validly enacted law? “Whether the order of the federal government passed in exercise of authority under Section 13(6) of the Official Secrets Act directing that the procedure for the trial of accused under Section 5 and 9 of the Act shall be as prescribed for offences under the Pakistan Criminal Law (Amendment) Act 1958, confer any right of appeal to the accused under the 1958 Act or the CrPC?”
The government further questioned as to whether in case of observation of lacking the fair trial under Article 10-A of the Constitution, the only course available to the high court was to remand the matter to the trial court for giving proper opportunity and not to decide the case on merits. Whether the IHC has rightly appreciated the evidence available on the record on the touchstone of criminal justice while acquitting the respondent, it further questioned.
The government contended that the IHC judgement/short order is perverse, arbitrary and contrary to the material available on the record as such liable to be set aside, adding that the Official Secrets Act 1923 does not provide the provision of filing an appeal against the judgment of the special judge. The right of appeal is a statutory right and it cannot be availed unless it is expressly conferred by law, it contended, placing reliance on PLD 2005 SC 173 titled as “Syed Mansoor Shah and others Vs. the State”, as such the IHC judgement is not sustainable in the eyes of law.
It was submitted that the IHC while passing the judgement did not appreciate that the high court lacks jurisdiction or power to create rights not provided by the Constitution or a validly enacted law. The government submitted that the Official Secrets Act 1923 is not a schedule offence of the Pakistan Criminal Law (Amendment) Act 1958, adding that Section 13 (6) of the Act empowers the government that if it thinks fit by general or special order direct that the procedure for the trial of an offence under Section 5 and 9 shall be as prescribed for offences under the Pakistan Criminal Law (Amendment) Act 1958.
“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 of the powers available to the court under the Constitution and would constitute an order without jurisdiction,” the federal government contended, citing the case 2022 SCMR 566 titled as “Deputy Director Finance and others Vs. Dr. Lal Marjan and others”.
It was further submitted that the conduct of the respondents was non-cooperative throughout the trial and they made very possible efforts to delay the proceedings, adding that the record of the trial court is evident of the fact that 65 miscellaneous applications moved by the respondent were heard and decided by the trial court. “The matter was number of times adjourned on the request of the respondent or their counsels,” it contended, adding that the witnesses remained present in the court but their cross examination was not carried out by the defence counsels.
It was further submitted that the trial court appointed the defence counsels on the expense of the State who had completed the trial; however, the respondent tried to defeat the cause of justice by indefinite procrastination. “This aspect has not been considered by the Division Bench of Islamabad High Court while acquitting the respondent,” the federal government submitted.
It further submitted that the prosecution has produced the overwhelming evidence in support of its case. Moreover, the admission was made by the accused during the cross examination as well as in examination under section 342 CrPC, which are sufficient to establish the case beyond any shadow of doubt. It further contended that the prosecution has produced the documentary evidence along with its forensic analysis through reliable and confidence inspiring evidence which were not negated during the course of the cross examination but this aspect has not been appreciated by the IHC, while acquitting the respondent, as such the judgement is not sustainable in the eyes of law.