Counsel for the petitioner IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) CMA on behalf of Pet “AMENDED CRIMINAL PETITION FOR LEAVE TO APPEAL! Dated 30.11.2023 Advocate on Record Counsel for the Respondents Cr.MA NO. 12023 in Cr.P.L.A No. 1277 / 2023 Imran Ahmad Khan Niazi s+ .Petitioner Versus The State & another ...Respondents Mr. Hamid Khan, Sr. ASC along with M. Sharif Janjua INDEX Sr. Description Date Page No. No. 1 | CMA for entertainment of amended] 30.11.2023 A Petition 2 | Amended Criminal Petition 30.11.2023 | | —33 3 | Order passed by the Islamabad High] 21.11.2023 ] 47,4 y Court in ICAn no. 367/2023 34-3 4 | Affidavit of Facts & service 30.11.2023 | 37-38 Certified that paper book as bonded is complete and correct. Dated:- 30.11.2023. M. Sharif Janjua Advocate on RecordIN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Cr.MA NO. / 2023 in Cr.P.L.A No. 1277 / 2023 Imran Ahmad Khan Niazi ‘Versus The State & another Respondents Application: under Order XXXII Rule 6 of the Supreme Court Rules, 1980 for filing amended Criminal Petition for Leave to Appeal Respectfully submitted as under: 1. That the titled Criminal Petition for Leave to Appeal is pending adjudication before this Hon’ble Court. 2. That during pendency of this Criminal Petition Islamabad High Court, Islamabad in the same matter but in a different case being ICA No. 367 of 2023 passeda judgment — on 21.11.2023 whereby the proceedings with effect from 29.08.2023 and trial in case FIR No. 06/2023 dated 15.08.2023 was vitiated, which necessitated filing of Amended Criminal Petition for Leave to Appeal. 3. That it is in the interest of justice to bring on record the amended Criminal Petition for Leave to Appeal. It is respectfully prayed that amended Criminal Petition for Leave to Appeal may kindly be entertained by this Court in the interest of justice, M. Sharif Janjua Advocate on RecordPage !1 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Cr.MA NO. / 2023 in Cr.P.L.A No. 1277 / 2023 Imran Ahmad Khan Niazi S/o Ikram Ullah Niazi R/o Khan House, Bani Gala, Islamabad (Presently confined in Adiala Jail, Rawalpindi). «ssseuPetitioner Versus . The State, through Prosecutor-General Capital Territory, Islamabad. 2. Yousuf Naseem Khokhar, Secretary, Ministry of Interior, Government of Pakistan. Respondents AMENDED CRIMINAL PETITION FOR LEAVE TO APPEAL UNDER ARTICLE 185 (3) OF THECONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973, AGAINSTTHE IMPUGNED ORDER DATED 26.10.2023 PASSED BY THE HONOURABLEISLAMABAD HIGH COURT, ISLAMABAD IN CRIMINAL REVISION PETITIONNO. 166 OF 2023.Page Il2 The following questions of law are required to be determined by this August Court: I. Whether the impugned judgement is against the law, Constitution and facts and same is liable be set aside in the interest of justice? I. Whether. the alleged inquiry No, 111/2022 dated 5.10.2022, as referred to in the FIR dated 15.8.2023 in respect of alleged commission of an offence under the Official Secrets Act, 1923 is unconstitutional inasmuch as the Petitioners were not given the right of hearing therein? Whether the right to due process and fair trial is also attracted at the inquiry/investigation stage? II Whether alleged offence for which the Petitioner is being accused, charged and tried was no offence under the Official Secrets Act, 2023 as at the time of alleged occurrence on 28 March 2022, sections 5 and 8 as purportedly amended were not a valid part of the Official Secrets Act, 2023 and the proceedings initiated against the Petitioner are violative of Article 13 of the Constitution? IV. Whether the said sections 5 & 8 and all other amendments made in the Official Secrets Act, 2023 through the purported Official Secrets ( Amendment), 2023 never received the assent of the President as required under Article 75 of thePage ls Constitution and did not become an Act of the Parliament and the proceedings against the Petitioner were liable tobe quashed? Vv. Whether after the said purported amending Official Secrets Act, 2023 which refers to a deeming assent by President never became a law as there was no concept of a deeming assent at the first stage and in the absence of National Assembly having been dissolved the said bill at best could be treated as a pending bill and initiation and continuation of proceedings thereunder was a negation of the rule of Jaw, Articles, 4,8, 9, 25 and 75 of the Constitution. Vi. Whether the trial of the Petitioner was without jurisdiction, unlawful, coram nonjudice and malafide in the absence of any offence having been committed by the Petitioner and proceedings against the Petitioner were liable be quashed being illegal and unlawful? VII. Whether the appointment of the learned trial judge under the purported amended Act of 2023 was void being unlawful and unconstitutional? vi. Whether the Court under so-called Official Secrets Act, 2023 was a Kangroo Court and the trial a monkey trial as the Petitioner was denied all constitutional & fundamental rights during the course of a farce trial?Page l4 Ix. Whether, and without prejudice to the foregoing the Petitioner was entitled to a fair and open trial which was being denied to the Petitioner despite an order from the learned High Court dated 21.11.2023, the trial judge and jail authorities with malafide and illegally and unconstitutionally denying the Petitioner a fair trial and equal protection of law while other convicts including Mian Nawaz Sharif were being extended full protocol, protection and open trial by the same Courts? Whether the case of Petitioner is clearly a case of discrimination and violation of Article 25 of the Constitution? x. Whether Respondent No.2, Secretary Interior, had any lawful authority to lodge a complaint against the Petitioner and his co-accused and the whether the said Officer was duly authorized by the Federal Government, as defined in the Mustafa Impex Case ( PLD 2016 SC 808) and as required under section 13 of the Official Secrets Act, 2023? XI. Whether the alleged inquiry and registration of an FIR, investigation and proceedings were violative of section 13 of the Official Secrets Act, 1923 inasmuch as it envisaged only a complaint procedure? Xi. Whether the Learned Islamabad High Court has not wrongly and incorrectly observed that the Petitioner has not challenged the supplies of copies Order dated 09.10.2023?Page |5 Xil.Whether the Learned Islamabad High Court has not completely overlooked the ‘Certificate’ provided at the end of the prayer of the Petition and whether Learned Islamabad High Court has not contradicted itself in the ‘Objection Removal Proceedings’ on the same day? XIV. Whether it was proper for the same Court and Judge to bifurcate the Criminal Revisions No (151 / 23 & 166 / 23) filed in the same Court questioning the supply of copies and framing of the Charge? XV. Whether the rushed process of Charge framing did not affect the Accused's rights as guaranteed by Article 4 and Article 10-A of the Constitution of Pakistan, 1973, particularly with regard to ensuring a Fair Trial and Proceedings? XVI. Whether the Trial Court hastily framed charges under the Official Secrets Act, 1923, in clear violation of the Code of Criminal Procedure, 1898, and the Constitution of Pakistan, 1973? XVI. Whether the mandatory provisions requiring the Supply of Copies to the Accused "not less than 7 days before framing of Charge" were not blatantly flouted, violated, or overlooked by both the TrialXXIL. Page 16 Court and the Honourable Ismabad High Court? |. Whether violation of 241-A Cr.P.C, 1898 would not seriously cause prejudice to the entire case and is incurable defect within the meaning of Section 537° CrP.C, 1898? Whether the Trial Court's refusal to exercise powers under Section 94 of the Code of Criminal Procedure, 1898, to compel the prosecution to disclose the ‘Cipher’ document was justified and consistent with legal requirements? Whether the Trial Court's decision to frame the Charge can be considered legally sound when the main documentary evidence central to the prosecution case, theCipher Telegram, is not part of the Challan or supplied to the accused seven days prior to the framing of the Charge? Whether the Trial Court comprehensively understood and correctly applied the provisions of the Official Secrets Act, 1923, ensuring their proper applicability and ascertaining sufficient grounds to proceed with framing of charge in the present case? . Whether the Special Court has not incorrectly applied the provisions of Official Secrets Act, 1923Page l7 and whether Charge framed on 23.10.2023 has not occasioned from erroneous Interpretation of Section 5 of the Official Secrets Act, 1923? Whether the Learned Trial Court did not ignore established legal principles, guidelines, and safeguards in this Case, particularly regarding the procedure to be followed before the commencement of Trial? . Whether failure of affording mandatory seven days intervening gap between supply of copies and framing of Charge coupled with the serious prejudice caused by failing to provide main evidence (documents) of ‘Cipher ‘Telegram’ and related documents have not completely compromised the entire proceedings and vitiated the trial? Whether the offence alleged against the Petitioner, charge framed against the Petitioner and the proceedings continued against the Petitioner are misconceived in law? . Whether the Petitioner and the Co-accused have an immunity in respect of the alleged offence under Article 248 of the Constitution of Pakistan, 1973 and therefore, the whole proceedings are null and void? XXVIL. Whether the whole trial is illegal, withoutPage 18 jurisdiction and unlawful as the alleged offence as claimed by the Respondents was committed at a time when the alleged offences were not a part of the corpus juris of the Pakistan? XXVIII. Whether the direction (Approved for Reporting) will not set a misleading and dangerous trend in the precedent of Criminal Jurisprudence developed in Pakistan? XXIX. Whether the Respondents are bound under the law and the Constitution to supply Rules / Regulations / Instructions regulating Cipher available with the Foreign Office in Islamabad? Whether the trial against the Petitioner without supplying him with such Rules / Regulations / Instructions has been rendered unfair under Article 10A of the Constitution? Whether such denial is also violative of ‘due process’ clause under Article 10A of the Constitution? BRIEF FACTS OF THE CASE ARE AS UNDER: 1. That Complainant, Yousaf Naseem Khokhar (Respondent No. 2), Secretary, Ministry of Interior lodged the instant case FIR No. 06 / 23 dated 15.08.2023 registered under Sections 5 / 9 Official Secrets Act, 1923 r/w Section 34 PPC, 1860 against the Petitioner and other co- accused, while stating that;Page |9 “Consequent upon the conclusion of the Enquiry No. 111/2023 dated. 05- 10-2022, registered in the Counter Terrorism Wing, Federal Investigation Agency Islamabad, it transpired that former Prime Minister namely Imran Ahmad Khan Niazi, former Foreign Minister namely Shah Mehmood Qureshi and their other associates are involved in communication of information contained in secret classified document (Cipher Telegram received from Pare Washington dated. 7th March, 2022 to Secretary Ministry of Foreign Affairs) to the unauthorized persons (i.e. public at large) by twisting the facts to achieve their ulterior motives and personal gains in a manner prejudicial to the interests of state security. They held a clandestine meeting at Bani Gala on 28-03-2022 to conspire to misuse the contents of Cipher in order to accomplish their nefarious designs. The accused Imran Khan malafidely directed the former SPM Muhammad Azam Khan to prepare the minutes (Record Note) of said clandestine meeting by manipulating the contents of Cipher message to use it for his vested interest at the cost of national safety. Moreover, the numbered and accountable copy of Cipher telegram sent to PM Office was deliberately kept in his custody by the former Prime Minister Imran Khan, with malafide intention, and was never returned to the Ministry of Foreign Affairs. The said Cipher Telegram (Official Secret Document classified as such) is still in the illegalPage 110 possession/ retention of the accused Imran Khan, The unauthorized retention and misuse of the Cipher Telegram by the accused persons compromised the entire Cipher security system of the state and secret communication method of Pakistani missions abroad. These actions by the accused persons directly / indirectly benefited the interest of foreign powers and caused loss to the State of Pakistan. The competent authority has granted approval for registration of case. Therefore, at Police Station CTW FIA Islamabad, Prima facie, a case under section 5 and 9 of Official Secret Act, 1923 r/w 34 PPC is registered against former Prime Minister Imran Ahmad Khan Nazi, Former Foreign Minister Makhdoom Shah Mehmood Qureshi, for wrongful communication/ use of official secret information and illegal retention of Cipher telegram (Official Secret Document) with malafide intention, whereas role of the former SPM Muhammad Azam Khan, former Federal Minister Asad Umer and other associates involved will be ascertained during the course of investigations. I will investigate the case. The copies of FIR are being sent to quarters concerned.” 2, That the Petitioner stands as one of the few honest and esteemed statesmen in Pakistan, boasting a well- established national and international reputation. During his tenure as the 22nd Prime Minister ofPage 11 Pakistan, his mandate and the burgeoning support he garnered from the masses posed a significant threat to the already entrenched political forces. In April 2022, the Petitioner was ousted from his position through a meticulously orchestrated scheme. The subsequent arbitrary actions and highhandedness displayed by his political opponents, who assumed control of the federal government, undeniably reflect a clear case of political victimization against the Petitioner and his party. 3. That subsequent events have been marred by an alarming trend of Political Victimization that not only targets the Petitioner but also extends to his allies and political party. It is crucial to succinctly inform this Honourable Court about the relentless Political Victimization to which the Petitioner is being subjected through the extensive ‘Criminal Machinery’ operating in Islamabad. As the former Prime Minister of Pakistan and the Political Head of the Largest Political Party, Pakistan Tehreek-e-Insaaf (PTI), the Petitioner finds himself entangled in nearly (200) criminal cases. These charges encompass allegations of terrorism, mutiny, sedition, prohibited funding, Tosha khana, speeches and addresses in the media, violence, and criminal conspiracies against the State. These cases have been filed with the sole agenda of politically victimizing the Petitioner, settling scores, and politically isolating him. 4, That unfortunately, a disheartening trend has emergedPage 112 where state machinery, in a questionable display of power and authority, has made strenuous attempts to concoct and fabricate false cases. The registration of the present case is another facet of this malevolent campaign, with the sole objective of settling scores with the Petitioner. That the conduct of the Federal Investigating Agency (FIA) in the matter of the Petitioner is marked by a notable lack of independence and fairness. This is glaringly evident through the numerous criminal cases filed against the Petitioner, including the ‘Foreign Funding Case’ for which he had previously secured bail from the Special Judge Banking Court in Islamabad. Following which the focus has now shifted to Cipher Telegram Case. The persistent efforts by the FIA to prosecute the Petitioner raise significant doubts about the agency's impartiality and the credibility of their actions in this matter. That as part of a persistent and malicious campaign of political victimization, a baseless and frivolous case, FIR No. 06 of 2023, was initiated by the Federal Investigating Agency (FIA). This case was registered under Section 5 and 9 of the Official Secrets Act, 1923, in conjunction with Section 34 of the Pakistan Penal Code, 1860. The individuals implicated in this false case include the former Prime Minister, Mr. Imran Ahmad Khan Niazi, the Foreign Minister, Mr. Shah Mehmood2 Page 113 Qureshi, the Principal Secretary to the Prime Minister, Mr. Azam Khan, and Mr. Asad Umar. The Petitioner is deeply perturbed by the mode, approach, and practices adopted by the Learned Trial Court in the trial of this offense. The first glaring illegality committed was the conduct of secret remand hearings for the Petitioner without his knowledge and without producing the accused during these proceedings. In fact, the Petitioner, his legal team, and his family were completely unaware of his arrest on 15.08.2023, which transpired in the utmost secrecy. This was followed by a clandestine remand hearing on 16.08.2023, wherein the accused was not produced, clearly violating Section 167 of the Criminal Procedure Code, 1898, and well-established legal principles as outlined in the ‘Ghulam Sarwar' Case, reported as 1984 P.Cr.LJ 2588. These glaring illegalities raise serious concerns about the competence and understanding of the trial court's practices and procedures during remand hearings. It can reasonably be concluded that the arrest and remand hearings were obtained illegally and unlawfully, with the added factor of secrecy authorized by the Learned Trial Court. }. That the Post-Arrest Bail hearing for the Petitioner was also brought before the Learned Trial Court and, to the petitioner's bewilderment, was summarily dismissed on 14.09.2023. This dismissal came with the peculiarPage |14 observation that the Counsel had not provided a Certificate below the Prayer regarding the co-accused's bail status. Moreover, the post-Arrest bail was needlessly delayed, citing reasons related to the absence of the Certificate and the pendency of a Writ Petition challenging the Notification of Jail Trial before the Honourable Islamabad High Court. These actions by the Learned Trial Court were not only illegal but also improper, failing to align with established practices and procedures under the Criminal Laws of Pakistan. 9. That the current state of affairs reveals a blatant bias and a preconceived disposition on the part of the trial court, leaving the Petitioner deeply aggrieved and apprehensive about receiving fair treatment. What exacerbates this situation is the clear observation that the Learned Trial Court, in the absence of any directive to expedite or conduct day-to-day trials, is seemingly rushing through the proceedings at the expense of causing significant prejudice to the accused, Furthermore, an attempt was made to provide copies on 09.10.2023, which faced resistance, and the Petitioner did not receive the copies mandated under Section 241- A of the Cr.P.C, 1898, until 17.10.2023. This is depicted by the Interim Order dated 17.10.2023, passed by the Learned Trial Court. 10.That without due justification and without affording adequate time for the accused to comprehend thePage 115 intricate and complex allegations set forth in the FIR, which pertained to an alleged violation of the Official Secrets Act, 1923, the Learned Trial Court hastily proceeded to frame charges on 23.10.2023. This hasty action compromised the principles of a fair trial and proper procedure, disregarding the serious objections raised and the pending applications that called for adjudication prior to the framing of charges. The Learned Trial Court, in its undue haste, incorrectly and improperly violated established principles and procedures, resulting in the illegal and unlawful framing of charges against the Petitioner. 1LThat the proceedings initiated in flagrant non- compliance with Section 241-A of the Criminal Procedure Code, 1898, and the erroneous and unlawful framing of charges on 23.10.2023 were duly challenged before the Honourable Islamabad High Court through Criminal Revision No. 166/2023. Regrettably, the Honourable Islamabad High Court, in its adjudication on the matter, dismissed the Criminal Revision Petition and issued an Impugned Order dated 26.10.2023. This order resulted in a gross misreading and non-reading of material evidence. Consequently, the Petitioner, deeply aggrieved by the Impugned Order dated 26.10.2023 and the framing of charges on 23.10.2023, humbly seeks the kind indulgence of this August Court to set aside the Impugned Order dated 26.10.2023 primarily on the following grounds:Page 116 GROUNDS A. That the present illegal and unconstitutional criminal proceedings and trial have been initiated pursuant to FIR No. 6 of 2023, the allegedlybased upon an inquiry No. 111/2022 dated 5.10.2022, as referred to in the said FIR dated 15.8.2023 in respect of the alleged commission of an offences under sections 5 and 8 of the Official Secrets Act, 1923, are unconstitutional and void inasmuch as the Petitioner and his co-accused were not given the right of hearing during the course of that false and farce inquiry. That the Petitioner is entitled to due process and fair trial which is also attracted at the inquiry/investigation stage. Hence all proceedings against the Petitioner are liable be quashed. B. That the alleged offences for which the Petitioner is being accused, charged and tried were not offences under the Official Secrets Act, 2023, as at the time of alleged occurrence on 28 March 2022, the purported sections 5 and 8 were not party of the law and in order to falsely and illegally rope in the Petitioner, the said Act was purportedly amended but those amendments were not a valid part of the Official Secrets Act, 2023 and the proceedings initiated against the Petitioner were violative of Article 13 of the Constitution as on the alleged date of occurrences ( alleged disclosure of Cipher telegram to unauthorized persons, allegedPage la direction to Azam Khan to prepare minutes of yet another false and conconted clandestine meeting and yet another false allegation of retaining of a numbered copy of the said Cipher) these were not offences under the Official Secets Act, 2023. The proceedings against the Petitioner are therefore liable to be set aside as being illegal and malafide. . That the said sections 5 & 8 and all other amendments that were made in the Official Secrets Act, 2023 through the purported Official Secrets ( Amendment), 2023 never received the assent of the President as required under Article 75 of the Constitution and thus never became an Act of Parliament. Thus, the proceedings against the Petitioner were liable to be quashed. . That after the said purported amending Official Act, 2023, which refers to a deeming assent by President, never became a law as there was no concept of a deeming assent at the first stage and in the meantime before the passing of 10 days as required under Article 75, the National Assembly having been dissolved by the President on the advice of the Prime Minister, the said bill at best could be treated as a pending bill and not a law and thus the initiation and continuation of criminal proceedings thereunder against the Petitioner was a negation of the rule of law, Articles, 4,8, 9, 25 and 75 of the Constitution and a fraud on the people of Pakistan.Page 118 E. That the trial of the Petitioner is without jurisdiction, unlawful, coram non judice and malafideas in the absence of any offence having been committed by the Petitioner, the proceedings against the Petitioner are illegal and void and were liable be quashed being illegal and unlawful. F. That the similarly, the appointment of the learned trial judge under the purported amended Act of 2023 was also void being unlawful and unconstitutional. G. That trial Court under so-called Official Secrets Act, 2023 was a Kangaroo Court and the trial, a monkey trial, as the Petitioner was denied all constitutional & fundamental rights during the course of a farce trial. H, That without prejudice to the foregoing the Petitioner was entitled to a fair and open trial that was being denied to him despite an order from a learned Division Bench of the Islamabad High Court dated 21.11.2023, the trial judge and jail authorities, with malafide and illegally and unconstitutionally, are denying the Petitioner the rights to fair trial and equal protection of law while other convicts, including Mian Nawaz Sharif, were being accorded full protocol, protection and open trial by the same Courts. I. That Respondent No.2, Mr. Naseem Khokhar, Secretary Interior, had no lawful authority to lodge a complaint against the Petitioner and his co-accusedPage 119 inasmuch as the said Officer was duly not duly authorized by the Federal Government, as defined in the Mustafa Impex Case ( PLD 2016 SC 808) as required under section 13 of the Official Secrets Act, 1923. The proceedings without due sanction/approval of the Federal Government, are illegal and void. J. That the alleged inquiry and registration of an FIR, investigation and proceedings were violative of section 13 of the Official Secrets Act, 1923 inasmuch as it envisaged only a complaint procedure. K. That a great amount of emphasis in the Impugned Order dated 26.10.2023 has been given on the failure of the Petitioner to question / challenge earlier Interim Order of the Special Court dated 09.10.2023. The said observation is astonishing as the same Honourable Court had separately and earlier entertained and adjudicated on proceedings in Criminal Revision No. 181 of 2023 in which the Order dated 09.10.2023 and supply of copies had been challenged before the same Court. Moreover, on Court's direction Certificate at the end of the Prayer regarding pendency of connected Revision Petition pertaining to Order dated 09.10.2023 was given by the Counsel and thereafter Office Objections were removed as could be gleaned from the first page of the Impugned Order dated 26.10.2023. L. That the learned High Court has clearly erroneouslyPage 120 disposed of the matter through Impugned Order dated 26.10.2023 and caused great prejudice by bifurcating the two connecting matters and wrongly criticized and condemned Petitioner for not challenging the earlier Order dated 09.10.2023 in which copies were attempted for supply under Section 241- A CrP.C, 1898. M.That evident haste has significantly compromised the fairness of the proceedings, as is discernible in the actions of the Learned Trial Court. Regrettably, the Learned Trial Court failed to adhere to the mandatory requirement of providing a minimum of one week (7*day) between the date of supplying case documents and the framing of charges in a criminal trial. This oversight is particularly _ troubling considering that the case involves former Prime Minister and former Foreign Minister and revolves around a novel and intricate issue concerning Cipher Telegram. Given the complexity of the matter and the need for a comprehensive understanding of a century- old law, all parties involved, including the accused, who must comprehend the charges, the judge, responsible for framing them, and the counsel, responsible for advising the client, ought to exercise care and caution. However, it is evident that the Learned Trial Court rushed to hastily frame the charges and expedite the trial. N. That the Interim Orders would reflect that no copiesPage ia were received by the Petitioner or co-accused on 09.10.2023, only on 17.10.2023 as also evident from the Interim Order that copies were supplied and received on the expiry of 6day in sheer haste Charge was hurriedly framed by the Trial Court. . That this hasty process has caused substantial harm to the accused and not only violates the mandatory provisions of the Code of Criminal Procedure, 1898 but also infringes upon Article 4, which guarantees the tight to be treated in accordance with the law, and Article 10-A of the Constitution of Pakistan, 1973. Both of these provisions place a primary focus on ensuring a ‘Fair Trial’ and ‘Proceedings’ for every individual charged with a crime. . That when law prescribed that certain things has to be done in certain manner it has to be done in that manner and if it is not done so it will be unwarranted under the law. The seven-day period between supply of copies and framing of Charge is mandatory and represents the statutory right granted to the accused. The rationale is to furnish with an opportunity to understand allegations and to formulate a response in defence to the Charge framed. Failure to adhere to the mandatory provisions results in procedural flaw and is incurable under Section 537 of Cr.P.C, 1898.Page (22 Q That the Learned Trial Court proceeded to frame Charge on 23.10.2023 under Section 5 and 9 of the Official Secrets Act, 1923, read in conjunction with Section 34 of the Pakistan Penal Code, 1860, in a flagrant and audacious disregard for the law. For the convenience of this Honorable Court, the relevant provision of the Code of Criminal Procedure, 1898, is reproduced below: “(241 -A. Supply of statements and documents to the accused : (1) In all cases instituted upon police report, except those tried summarily or punishable with fine or imprisonment not exceeding six months, copies of statements of all witnesses recorded under Sections 161 and 164 and of the inspection-note- recorded by an investigating officer on his first visit to the place of occurrence, shall be supplied free of cost to the accused not less than seven days before the commencement of the trial: Provided that, if any part of the statement recorded under Section 161 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. (2) In all cases instituted upon a complaint in writing, the complainant shall!--Page 123 (a) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and (0) within three days of the order of the Court under Section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused: Provided that the provisions of this sub- section shall not apply in any case in which the. complaint has been made by a Court or by a public servant acting or purporting to act in discharge of his official duties],”” It appears that the Learned Trial Court has framed Charge being completely ignorant of the safeguards available to an accused in Criminal Justice System of Pakistan. Earlier as well the same Court authorized Secret arrest and secret remand without the production of the accused in blatant violation of Section 167 Cr.P.C, 1898. Again, quite shockingly after supplying copies on 17.10.2023 in sheer haste the Trial Court framed Charge on 23.10.2023 which was promptly brought into the notice of Islamabad High Court, The haste displayed, alongwith the rush to expeditiously frame the Charge, raises legitimate question about the motivation behind the actions of Learned Trial Court. This undue haste alone is sufficient to establish the illegality of ChargePage |24 framed against the Petitioner on 23.10.2023. A serious grievance, gone unattended by the Learned Islamabad High Court. R. The undue haste demonstrated by the Trial Court - in precipitously moving to frame Charge exposes a clear misalignment of priorities, favoring a rushed trial conclusion over adherence to established procedural requirements and the safeguarding of the petitioner's rights. This flagrant disregard for legal norms and the departure from due process in pursuit of expeditious adjudication falls outside the bounds of lawful conduct. As affirmed in the case reported as PLD 2006 SC (AJ & K) 43, the Honourable Court acknowledges the importance of a speedy trial but underscores the necessity of striking a balance between ‘delayed justice’ and a ‘hasty trial.’ The Court emphasizes that if a delay ensures the delivery of justice, it is a justifiable outcome, In light of the established jurisprudence and the recognition of the necessity for fair adjudication, it becomes evident that the Trial Court, in the present case, has displayed unwarranted haste, a departure that fundamentally contradicts the principles of the Rule of Law. That the conduct of the Learned Trial Court raises grave concerns, as it appears to have blatantly disregarded well-established principles, guidelines,Page 125 and legal safeguards that are integral to the proper commencement of a trial. The series of events, including the clandestine arrest on 15.08.2023, followed by an equally secretive remand on 16.08.2023, and the hurried framing of Charge, collectively indicate a troubling disregard for established legal procedures and practices in the adjudication of the Cipher Trial. This trend of procedural violations and apparent ill-will is glaringly evident in the sequence of events. As clearly established, the Petitioner and co-accused did not receive copies of the case documents on the originally scheduled date; instead, they were handed over on 17.10.2023. The gravity of these irregularities and the extreme anxiousness of the Learned trial Court to proceed swiftly and hurriedly in a complex and intricate matter can be gleaned by examining a pertinent portion of the Order dated 17.10.2023, issued by the Learned Trial Court, as reproduced below: “The instant matter is adjourned. Now to come up for framing of charge, but with this clarity and direction to both the parties that in future the charge in instant proceedings will be framed at any cost and no further adjournment will be granted even if any sort of application would be submitted on behalf of state or defence counsel even then charge will be framed and said applications if submitted will be decided on the same date unless any restraining order is placed onPage 126 record by learned counsel on behalf of accused persons Imran Ahmad Khan Niazi and Shah Mehmood Qureshi then this court will restrain to proceed, otherwise these proceeding will strictly be conducted in accordance with law. Now to come up for framing of charge on 23.10.2023.” This persistent pattern of procedural breaches, coupled with the court's actions and expression that no application whatsoever may be accepted for consideration, reveals a disconcerting approach. T. That another critical issue that demands consideration is the blatant illegality committed by framing the Charge without providing the primary documentary evidence central to the entire Prosecution case. This evidence, as detailed in the FIR, Remand Application, and Challan, revolves around the alleged unauthorized use of a Cipher Telegram. The omission to supply this Cipherdocument, which constitutes a pivotal component of the mandatory requirements outlined in Section 241-A, is a grave violation. Failure to provide crucial, relevant documents pertaining to the main allegation is altogether missing and charge has been framed without supplying the most relevant document and related evidence. This tantamount to ‘persecution’ as oppose to ‘prosecution’ for an offence. Evidence can never be kept secret from the accused orPage 127 the Court. That the Petitioner after observing the failure as well as reluctance to share incriminating evidence with the Petitioner had no other option but to avail the remedy provided in Section 94 Cr.P.C, 1898 compelling parties to disclose crucial evidence and documents. The said contention / ground was also raised and not considered by the Learned High Court in its Impugned Order dated 26.10.2023. Nevertheless, Petitioner wasted no time in making an application to the Trial Court in light of Section 94 Cr.P.C, 1898 and the dictum laid down in case titled ‘The State v. Ch.Muhammad Usman’ reported in 2023 SCMR 1676. All incriminating evidence also has to be put to the accused at the stage of 342 Cr.P.C, 1898. The Charge is defective and erroneous on the face of it as most essential, crucial, relevant evidence has not been attached with the Challan or given to the Petitioner seven days prior to the commencement of Trial. U.That serious prejudice has been caused to the Petitioner and co-accused facing the Trial. The Law reserved for prosecution of Armed Forces for revealing National Secrets with ‘Enemy States’ is being over stretched and clearly misapplied to the case of former Prime Minister and Foreign Minister of Pakistan. The Trial Judge as well as the Learned High Court have completely overlooked that neither thePage 128 Law (Official Secrets Act, 1923) nor its section 5 & 9 are attracted in the instant case. No criminality can be attributed to the Petitioners who are being politically victimized and a defective and erroneous Charge after forming wholly incorrect understanding of the Special Law has been framed against the Petitioner and others with the primary object to keep Petitioner behind the bars and at bay from the political scene. The bias and pressure on the Court is visible from an examination of the Interim Order dated 17.10.2023 in which the Trial Court in advance indirectly bars all application and remedies available to an accused for early Charge / Acquittal in the wake of Defective Charge having no substance. . The Cipher Telegram, at the heart of this dispute, represents the core evidence upon which the entire Prosecution's case relies. The failure to even examine the contents of this Cipher Telegram to establish the accuracy of the allegations, and hastily proceeding to frame Charge, is a clear indication of bias on the part of the trial court. Given the nature of the case, as determined by the precedent set forth in case titled “The State v. Ch. Muhammad Usman’ reported in 2023 SCMR 1676, the Cipherdocument is essential and satisfies the conditions allowing for the application of section 94, Cr.P.C 1898, as it is a piece of evidence crucial for the purpose of the ongoing trial. However, the Trial Court's dismissal of the application underPage 129 section 94, in addition to other illegalities committed, serves as compelling evidence of the trial court's bias and a preconceived state of mind. Without a thorough examination of the Cipher document itself, the court cannot reasonably conclude whether an offense has been committed. The Cipher Telegram is a crucial piece of evidence at the core of the Prosecution’s case. Ignoring it when assessing the veracity of the Prosecution’s claims is a significant oversight that has led to the improper framing of Charge when, logically, the Petitioner should have been acquitted. At every stage of the trial, these actions are causing significant prejudice to the accused in multiple ways. W.That it is not out of place to mention that a prejudiced trial is being conducted against the Petitioner who has served as the 22" Prime Minister of Pakistan and is fully entitled to the ‘Immunity’ from being tried in an illegal trial based on the allegations merely to the extent of his lawful act done during his tenure as the Prime Minister of Islamic Republic of Pakistan. The Petitioner and the co-accused who has served as the Minister of Foreign Affairs for twice, have been provided the immunity under Article 248 of the Constitution of Pakistan, 1973. Therefore, the exercise of persecuting the Petitioner and the Co-accused through commencing the trial under the Official Secrets Act, 1923 is unquestionably null and void in the eyes of law.Page 130 X. That the offence alleged against the Petitioner, Charge framed on 23.10.2023 against the Petitioner by learned Trial Court and the proceedings continued against the Petitioner are flawed and misconceived in law. The whole trial is illegal, without jurisdiction and unlawful as the alleged offence as claimed by the Respondents was committed at a time when the alleged offences were not a part of the ‘Corpus Juris’ of the Pakistan. Y. That the Charge framing proceedings have raised serious questions, particularly in view of the novel, unorthodox, and unprecedented observation made by the Learned Trial Court. This observation was not made in open court, nor before the advocates, but at a subsequent stage and at an undisclosed time. For the convenience of this Honorable Court, the separate note provided in the absence of the Petitioner and his Counsel is reproduced below: “Special Note: 23.10.2023 (Abual Hasnat Muhammad Zulgarnain) Judge, Special Court (Official Secret) Camp Court at Central Prison, Rawalpindi Vide my even dated separate detailed order in interim order and in the light of reply of Q. No.1 by the accused Imran Ahmad Khan Niazi the objection raised by the accused regarding non- supply of copies are not logical in the light of admission of accused regarding reply of O. No. 2 of the statement and Court duringPage i31 proceedings as he stated "Not guilty" and this court an open court read and explained the charge to the accused. Moreover, in the interim order of this proceedings specifically order dated: 09.10.2023 and 17.10.2023, since the accused had made signatures on the interim orders hence, the objection of the accused is not legitimate. Same is turned down and charge under the law correctly have been framed. Hence, formal charge has been framed relating to the offences and accused was asked whether he admits the same he stated in reply "Not guilty", The instant note must be read part and parcel of charge in hand as well as interim orders.” Z. That the provision of copies serves the crucial purpose of providing the accused with advance notice and adequate time to comprehend the allegations against them. Failure to supply these copies cannot be justified under any circumstances, and without them, the accused is left incapable of mounting a proper defense. The Learned Trial Court has undeniably framed a Charge that is flawed and inaccurate, and such errors will undoubtedly have _ severe repercussions. These defects are not correctable and have caused substantial prejudice to the Petitioner, necessitating kind intervention of this Honourable Court. AA. That there are Rules / Regulations / Instructions /Page 132 Departmental Constructions regulating Cipher which are available with the Foreign Office at Islamabad. The Respondents have failed to supply such Rules / Regulatioris / Instructions / Constructions to the Petitioner despite repeated requests on behalf of the Petitioner before the trial court. The failure on the part of the Respondents to do so has rendered the trial against the Petitioner unfair and violative of Articles 10A and 19A of the Constitution. This failure is also violative of ‘due process’ clause of Article 10A of the Constitution. PRAYER: In light of the aforementioned circumstances, it is respectfully prayed that leave to appeal may kindly be granted against the Impugned Order dated 26.10.2023 ‘passed by Honourable Islamabad High Court and framing of Charge by Learned Trial Court dated 23.10.2023 may kindly be declared as illegal, unlawful and violative of the Code of Criminal Procedure, 1898 & Article 4 & 10- A of the Constitution of Pakistan, 1973. It is further prayed that the proceedings against the Petitioner may kindly be quashed in the interest of justice and the Petitioner may be protected from the ordeal of farce, unconstitutional and illegal trial.Page 133 Any other relief to which the Petitioner may be deemed entitled to in the facts and circumstances of the instant casemay kindly be granted to the Petitioner. Drawn By: Filed By: Barrister Salman M. Sharif Janjua Safdar Advocate-on- Advocate Supreme Record Court Supreme Court of Pakistan Settled by: Mr. Hamid Khan Senior Advocate Supreme Court of Pakistan Certificate: As per instruction, this is the First Petition moved on the subject before this August Court against the Impugned Order dated 26.10.2023 passed by the Islamabad High Court, Islamabad, Advocate-on-RecordORDER SHEET ~ IF ¢— IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT 1.C.A.No.367 of 2023 Imran Ahmad Khan Niazi Versus Federation of Pakistan and others S.No. of Date of | Order with signature of Judge and that of parties or counsel order! order! where necessary. proceedings | Proceedings 08. 24.11.2023 M/s Salman Akram Raja, Barrister Salman Afridi, Intizar Hussain Panjutha, Barrister Gohar Ali Khan, Naeem Haider Panjutha, Ali Aijaz Buttar and Mirza Asim Baig, Advocates for the appeliant. Mr. Mansoor Usman Awan, learned Attorney- General for Pakistan. Barrister Munawar Iqbal Duggal, and Aamir Rehman, learned Additional Attorney-Generals. Mr. Arshid Mehmood Kiani, learned Deputy Attorney- General. Mis Asia Batol and Imran Farooq, learned Assistant Attorney-Generals. Mis Raja Rizwan Abbasi, Zulfiqar Abbas Naqvi, Shah Khawar and Mudassar Hussain Malik, Advocates / Prosecutors for F.LA. Mr. Tahir Kazim, Law Officer, ICT Police. Fordetailed reasons to be recorded, we hold as follows:- i, ‘The instant intra Court appeal filed under Section 3(2) of the Law Reforms Ordinance, 4972 against the judgment dated 16.10.2023 passed in writ petition No.2656/2023 is maintainable. ii, The designation of the Special Court (Anti- Terrorism-|) Islamabad, to try cases reported under the Official Secrets Act, 1923 through notification (F.No.40(64)/2023-A-Vill) dated 27.06.2023 issued by the Ministry of Law and Justice is valid and lawful. iii, There is no provision in the Code of Criminal Procedure, 1898 (“Cr.P.C.”) which compels a Magistrate to hold his Court in a usual Court Room. In exceptional circumstances and where it is conducive to justice, a trial can beiv. vi. - BS 2 1.C.A.No.96712023 conducted in jail in a manner that fulfills the requirements of an open trial or a trial in camera provided it is in accordance with the procedure provided by law. Notification (F.No.8(93)/2021-A-IV)_ dated 29.08.2023 issued by the Ministry of Law and Justice impugned in writ _ petition No.2656/2028 is declared to be without lawful authority and no legal effect for want of an order by the appropriate Government and fulfillment of requirements provided in Section 352 Cr.P.C. as well as Rule 3 in Part- A of Chapter-1 in Volume+Iil of the Rules and Orders of the Lahore High Court, Lahore (“LHC Rules”). Notification. {F:No.40(68)/2023-A-VIlI) dated 12.09.2023; notification (F.No.40(68)/2023-A- Vill) “dated "25.09.2023; —_ notification (F.No.40(68)/2023-A-VIll) dated 03.10.2023; and notification (F.No.40(68)/2023-A-Vill) dated 13.10.2023 issued by the said Ministry are declared to be without lawful authority and no legal effect for want of fulfillment of requirements provided in Section 352 Cr.P.C. as well as Rule 3 of the LHC Rules. Notification (F.No.40(68)/2023-A-VIIl) dated 13.11.2023 issued by the Ministry of Law and Justice on the basis of the Cabinet’s decision dated 12.11.2023 as well as notification (F.No.40(68)/2023-A-Vill) dated 15.11.2023 issued by the said Ministry on the basis of the Cabinet's decision dated 15.11.2023 are declared to be of no legal consequence for not having been preceded by an order of the learned Judge, Special Court in terms of3 — BE = sonresenins Section 352 Cr.P.C. passed in judicial proceedings. also declared by way of clarification that notification (F.No.40(68)/2023-A-VIll)_ dated 15.11.2023 issued by the said Ministry on the basis of the Cabinet’s decision dated 15.11.2023 cannot be given retrospective effect. vill, Consequently, the proceedings with effect from 29.08.2023 and the trial conducted in case FIR No.06/2023, dated 15.08.2023 registered under Sections 5 and 9 of the Official Secrets Act, 1923 read with Section 34 of the Pakistan Penal Code, 1860 at Police Station Counter Terrorism Wing, Federal Investigation ‘Agency, Islamabad, in jail premises in a manner that cannot be termed as an open trial stand vitiated. 2. The instant appeal is allowed in the above terms. (SAMAN RAFAT IMTIAZ) (MIANGUL HASSAN AURANGZEB) JUDGE JUDGEIN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Hp. Cr.MA NO. / 2023 in Cr.P.L.A No. 1277 / 2023 Imran Ahmad Khan Niazi ‘Versus The State & another AFFIDAVIT OF FACTS of M. Sharif Janjua, Advocate on Record, Supreme Court of Pakistan, Islamabad. I, the above named deponent take oath and state as under:- 1. That the facts mentioned in the accompanying Criminal Miscellaneous Application are true and correct to the best of my knowledge and information. 2. That the said facts have been obtained from the perusal of the record as well as from the Petitioner. Sworn at Islamabad this ----- day of November, 2023. DEPONENTIN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) - 3& Cr.MA NO. 12023 | in CrP.L.A No. 1277/2023 Imran Ahmad Khan Niazi Versus The State & another AFFIDAVIT OF SERVICE of M. Sharif Janjua, Advocate on Record, Supreme Court of Pakistan, Islamabad. I, the above named deponent take oath and state as under: That I did serve the Respondents of having filed the accompanying Criminal Miscellaneous Application in the Supreme Court of Pakistan. Sworn at Islamabad on this ------- day of November, 2023. DEPONENT