IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD

(Appellate Jurisdiction)

Cr. PLA No._______________/2024

The State through Federation of Pakistan, Secretary Ministry of

Interior (Appropriate Government), Pak Secretariat Constitution
Avenue, Islamabad.

…Petitioner

Versus

1. Imran Ahmad Khan Niazi S/o Ikram Ullah Khan Niazi,

resident of 2-Zaman Park, Lahore.

2. Makhdoom Shah Mehmood Qureshi S/o Makhdoom

Sajjad Hussain Qureshi, resident of House No.3, Street
No.52, F-8/4, Islamabad.

…Respondents

PETITION UNDER ARTICLE 185 (3) OF THE CONSTITUTION

OF ISLAMIC REPUBLIC OF PAKISTAN 1973 AGAINST THE
JUDGMENT DATED 03.06.2024 WHEREBY THE
HONOURABLE DIVISION BENCH OF ISLAMABAD HIGH
COURT, ISLAMABAD, ACQUITTED THE RESPONDENTS
WHILE ACCEPTING CRIMINAL APPEALS NO.81/2024 &
73/2024 RESPECTIVELY.
Respectfully Sheweth:

The points of law arising for determination are as follows:

1. 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 (OSA), is without jurisdiction and
ultra vires?

2. Whether the right of appeal is a statutory right and it

cannot be availed unless it is expressly conferred by
law?
3. Whether the High Court lacks jurisdiction or power to
create rights which are not provided by the Constitution
or a validly enacted law?

4. Whether the order of the Federal Government passed in

exercise of authority under section 13(6) of OSA
directing that the procedure for the trial of accused
under section 5 and 9 of OSA shall be as prescribed for
offences under the Pakistan Criminal Law (Amendment)
Act, 1958 (Act, 1958), confer any right of Appeal to the
accused under the Act, 1958 or the Cr.P.C?

5. Whether the right of appeal is a constitutional right and

whether High Court can provide a right of appeal to an
accused tried for offences under the OSA when no such
right is available under the provisions of the OSA by
applying the rule of casus omissus or doctrine of
reading in?

6. Whether the special law will have the overriding effect

on the general law and the provisions of filing of an
appeal under the criminal procedure code are not
applicable in case of accused tried for offences under
the OSA in view of provision of section 5(2) of criminal
procedure code?

7. Whether the conduct of the respondents was non-

cooperative throughout the trial, which amounts to
defeat the cause of justice by indefinite procrastination?

8. Whether in case of observation of lacking the fair trial

under Article 10-A of the Constitution of Islamic
Republic of Pakistan, 1973, 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?

9. Whether in presence of overwhelming evidence in

support of prosecution case and the admission on the
part of accused during the cross examination as well as
in examination under section 342 Cr. P.C, is sufficient
to establish the case beyond any shadow of doubt and
the acquittal of the respondents is perverse, arbitrary
and in excess of jurisdiction?

10. Whether the documentary evidence alongwith forensic

report are reliable evidence and conviction can be made
on its basis in view of Article 164 of the Qanoon-e-
Shahadat, 1984?
 11. Whether the impugned judgment / short order which
does not reflect any ground of acquittal of the
respondents, is sustainable in the eyes of law?

12. Whether the Islamabad High Court has rightly

appreciated the evidence available on the record on the
touchstone of criminal justice, while acquitting the
respondents?

BRIEF FACTS:

1. That on 05.08.2022 inquiry No.111 of 2022 was

registered in CTW/F.I.A on the direction of D.G FIA
on the basis of decision of the Federal Cabinet
received in F.I.A through Ministry of Interior
regarding the leaked audios of respondent No.1 and
his associates pertaining to cypher, which was
publicly available on different social media platforms,
whereupon the F.I.A constituted the inquiry team.
During the subsistence of inquiry a complaint
(Exh.PW-16/A) under section 13 (3) of the Official
Secrets Act, 1923 was sent by the then Secretary
Interior. The Inquiry Team concluded the inquiry and
recommended the registration of case under the
provisions of the OSA, 1923. Resultantly with the
approval of the competent authority an F.I.R
No.6/2023 dated 15.08.2023 under section 5 and 9
of the official Secrets Act 1923 read with Section 34
of the Pakistan Penal Code 1860, was registered
against the respondents at P.S CTW/FIA, Islamabad.

2. That it is alleged in the FIR that the respondents are

involved in communication of information contained
in secret classified document (Cypher Telegram
received from Parep Washington dated 07.03.2022 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 interest
of state security. It is further alleged that the
numbered and accountable copy of cypher telegram
sent to P.M office was deliberately kept in his custody
by the respondent No.1 with malafide intention and
was never returned to the Ministry of Foreign Affairs,
which is still in his illegal possession / retention of
the respondent No.1. It is further alleged that
retention and misuse of the cypher telegram by the
respondents compromised the entire cypher security
system of the state and secret communication
method of Pakistani mission abroad. These actions of
the respondents directly / indirectly benefited the
interest of foreign powers and caused loss to the state
of Pakistan.

3. That during the course of investigation the

respondents were arrested. The statements of the
PWs under section 161 Cr. P.C were recorded. PW-11
also recorded his statement under section 164 Cr.
P.C before the Assistant Commissioner (PW-17). The
relevant record from P.M office, Ministry of Foreign
Affairs, Cabinet Division, National Security Division,
Pakistan Electronic Media Regulatory Authority and
Pakistan Television were taken into possession
including the technical analysis report through
seizure memos. The Investigating Officer, after
completing the investigation, prepared the report
under section 173 Cr.P.C and after the acquisition of
the complaint from the then Secretary Interior (PW-
20) as required under section 13 (3) of the OSA, 1923,
 submitted in the trial court, especially notified under
the Official Secrets Act, 1923.

4. That on 09.10.2023 the Ministry of Law & Justice

Islamabad issued notification No.F.No.04(68)/2023-
VIII dated 12.09.2023 wherein jail trial of
respondents at District Prison Attock was ordered,
which was subsequently on the order of Islamabad
High Court Islamabad the respondent No.1 was
shifted to Central Prison Adyala Rawalpindi.

5. That the copies as required under the law were

supplied to the respondents. Initially charge was
framed on 23.10.2022 wherein the respondents did
not plead guilty and claimed trial. Thereafter 05 PWs
were examined but due to the injunctive order dated
16.11.2023 passed by the Islamabad High Court in
I.C.A No.387/2023 filed by the respondent No.1, the
trial was stayed. The Islamabad High Court in I.C.A
No.367 of 2023 vide order dated 21.11.2023 declared
the proceedings commencing from 29.08.2023 as
illegal and same were vitiated. It is pertinent to
mention here that the petitioner assailed the order
dated 21.11.2023 before the Supreme Court, which
still pending.

6. That on 04.12.2023 again copies were supplied to the

respondents as required under the law. The fresh
charge was framed under section 5 (3)(a), 5(3)(b),
5(1)(d), 9 OSA, 1923 read with 34 PPC on
13.12.2023. The respondents did not plead guilty
and claimed trial. The learned trial court vide order
dated 14.12.2023, allowed the application of the
prosecution under section 14 of the OSA, 1923.
7. That the prosecution produced 25 PWs in its support
but the defense did not cross examine the PWs. The
respondent No.1 assailed the order dated 14.12.2023
before the Honourable Islamabad High Court,
Islamabad through Crl. Revision Petition
No.200/2023 titled as Imran Khan Vs. The State and
others, which was accepted vide order dated
11.01.2024. Resultantly the proceedings started
from 14.12.2023 i.e. after framing of the charge, were
set aside.

8. That the prosecution again produced the witnesses

in its support but the defense did not cross examine
with the plea that they will cross examine all the PWs
after recording of examination in chief of all the
witnesses / PWs. The prosecution got examined the
in chief of all 25 witnesses till 23.01.2024. The
learned counsel of the respondents cross examined
only 04 PWs and thereafter lingered on the matter on
one pretext or the other. Ultimately the learned trial
court appointed defense counsels on state expense,
who cross examined all PWs. The respondents were
examined under section 342 Cr. P.C and after
hearing the arguments the learned trial court vide
judgment dated 30.01.2024 convicted the
respondents in the following manners:

“34. This court holds that Imran Ahmad

Khan Niazi and Shah Mehmood Qureshi are
guilty u/s 5(3)(a), 5(1)(c) punishable u/s5(3)(b)
of OSA read with 34 PPC. Moreover, accused
Imran Ahmad Khan Niazi is held guilty. In
view of the foregoing evidence available on
record which is unrebutted, it is clear that
due to advertent and willful acts of accused
persons, the accused Imran Ahmad Khan
Niazi is held guilty in the light of charge u/s
5(3)(a) of the Official Secret Act, 1923 and he
 is convicted and sentenced u/s 5(3)(a) of the
OSA, 1923 and punished with rigorous
imprisonment for a term of 10-years.
Secondly, the accused Imran Ahmed Khan
Niazi is also held guilty in the light of charge
u/s 5(1)(c) and he is convicted and sentenced
u/s 5(3)(b) of the OSA, 1923 and punished with
rigorous imprisonment for a term of 2-years
and with fine of Rs.10 Lacs. Thirdly, accused
Imran Ahmad Khan Niazi is held guilty in
light of charge u/s 5(1)(d) of OSA, 1923he is
convicted and sentenced u/s 5(3)(b) of OSA,
1923 and punished with rigorous
imprisonment for a term of 2-years and with
fine of Rs.10 Lacs. Fourthly, both the accused
Imran Ahmad Khan Niazi and Shah Mehmood
Qureshi are held guilty in light of charge u/s
5(3)(a) of the OSA,1923 read with section 34
PPC and are convicted and sentenced u/s
5(3)(a) read with section 34 PPC and are
convicted and sentenced u/s 5(3)(a) read with
section 34 PPC and punished with rigorous
imprisonment for a term of 10-years, each.
Fifthly, the accused Shah Mehmood Qureshi
is held guilty in light of charge u/s 9 read
with section 5(3)(a) of the OSA, 1923 and is
convicted and sentenced u/s 5(3)(a) of OSA,
1923 with rigorous imprisonment for a term
of 10-years. The benefit of section 382-B Cr.
PC shall also be awarded to both the convicts.
All the supra mentioned sentences shall run
concurrently.”

9. That respondents preferred the appeals No.81/2024

& 73/2024 respectively under section 410 Cr. P.C
read with section 10 of the Criminal Law
(Amendment) Act, 1958 against the judgment dated
30.01.2024

10. That the petitioner objected to the filing of appeal

under section 410 Cr. P.C read with section 10 of the
Criminal Law (Amendment) Act, 1958 as the Official
Secrets Act, 1923 does not provide right of appeal
and it is established principle of law that the appeal
is the statutory right, which is only competent when
the statute provides the same. The Division Bench of
 Islamabad High Court heard the arguments but did
not pass any order.

11. That the petitioner also moved the application under

section 428 Cr.P.C for an additional evidence but no
order was passed by the Division Bench of Islamabad
High Court, Islamabad.

12. That the respondents also raised the objection

regarding the form and manner of trial conducted by
the trial court. Both the parties advanced their
arguments. The Division Bench of Islamabad High
Court vide its short order dated 03.06.2024 acquitted
the respondents with the following observations:

“For the reasons to be recorded later,

instant appeal is allowed and judgment
dated 30.01.2024 is set aside;
consequently, the appellant namely
Imran Ahmad Khan Niazi is acquitted
of the 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. He shall be
released forthwith, if not incarcerated
in another case.”

The similar order was passed in appeal No.73 of 2023

titled as “Makhdoom Shah Mehmood Qureshi Vs.
The State”.

13. That the petitioner is filing the instant petition

keeping in view the above stated short order,
however, reserves the right to file additional grounds
and law points after the receipt of the detailed
judgment.
14. That the petitioner seeks the acceptance of the
petition for the grant of leave on the following
amongst other

GROUNDS:

a) That the impugned judgment / short order is

perverse, arbitrary and contrary to the material
available on the record as such liable to be set
aside.

b) That the Official Secrets Act, 1923 does not

provide the provision of filing an appeal against the
judgment of the learned Special Judge. The right
of appeal is a statutory right and it cannot be
availed unless it is expressly conferred by law.
Reliance is placed on PLD 2005 SC 173 titled as
“Syed Mansoor Shah and others Vs. the State”, as
such the impugned judgment is not sustainable in
the eyes of law.

c) That Honourable Islamabad High Court while

passing impugned judgment did not appreciate
that the High Court lacks jurisdiction or power to
create rights which are not provided by the
Constitution or a validly enacted law. It was
neither a case of casus omissus nor
necessitated application of doctrine of reading
in as no constitutional guarantees have been
violated. Reliance is placed on 2022 SCMR 650
titled as “Munir Hussain and three others Vs.
Province of Sindh and another”, as such the
entertainment of the appeal was without
 jurisdiction, hence the impugned judgment is
liable to be set aside.

d) That the Official Secrets Act, 1923 is not a

schedule offence of the Pakistan Criminal Law
(Amendment) Act, 1958. The Section 13 (6) of the
OSA, 1923 empowers the appropriate government
that if it think 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 nowhere present in the statute that
for filing an appeal the provisions of Pakistan
Criminal Law (Amendment) Act, 1958, shall 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.
Reliance is placed on 2022 SCMR 566 titled as
“Deputy Director Finance and others Vs. Dr. Lal
Marjan and others”, hence the impugned
judgment is liable to be set aside.

e) That the special law will have the overriding effect

on the general law, as such the criminal procedure
code is not applicable in case of accused tried for
offences under the OSA in light of section 5(2) of
Cr.P.C, as such the provisions of section 410
Cr.P.C are not available to a convict under the
provisions of OSA, 1923, as such very
 entertainment of the appeal under the provisions
mentioned in the memo of appeal are not
permissible under the law.

f) That the conduct of the respondents were non-

cooperative throughout the trial and they made
very possible efforts to delay the proceedings. The
record of the trial court is evident of the fact that
65 miscellaneous applications were moved by the
respondents were heard and decided by the trial
court. The matter was number of times adjourned
on the request of the respondents or their
counsels. The witnesses remained present in the
court but their cross examination was not carried
out by the defense counsels. The learned trial
court appointed the defense counsels on the
expense of the state, who had completed the trial.
The respondents tried to defeat the cause of justice
by indefinite procrastination. This aspect has not
been considered by the Honourable Division
Bench of Islamabad High Court while acquitting
the respondents.

g) That it is settled principle of law that if at all courts

comes to the conclusion that the trial was not
carried out in view of Article 10-A of the
Constitution of Islamic Republic of Pakistan,
1973. The only way out provided under the law is
to remand the matter to the trial court for giving
proper opportunity. Reliance is place on 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”
as such the acquittal of the respondents are
contrary to the settled principle of law, hence the
impugned judgment is liable to be set aside.

h) That the prosecution has produced the

overwhelming evidence in support of its case.
Moreover, the admission made by the accused
during the cross examination as well as in
examination under section 342 Cr. P.C, which are
sufficient to establish the case beyond any shadow
of doubt.

i) That the prosecution has produced the

documentary evidence alongwith 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 Honourable
Division Bench of Islamabad High Court, while
acquitting the respondents, as such the impugned
judgment is not sustainable in the eyes of law.

j) That the impugned judgment / short order does

not reflect any ground of acquittal of the
respondent, even it is not observed that the
prosecution has failed to prove its case beyond any
shadow of doubt.

k) That with utmost respect it submitted that the

Islamabad High Court has not appreciated the
evidence available on the record as well as the
 admission of the accused, while acquitting the
respondents, as such the impugned judgment is
not sustainable in the eyes of law.

l) That even other the impugned judgment is not

sustainable in the eyes of law.
m) Petitioner reserves the right to urge additional
grounds upon release of the reasons for the short
order.

PRAYER

It is respectfully prayed that the leave to appeal

against the impugned judgment dated 03.06.2024
may kindly be granted and petition may graciously
be converted into appeal and the same be allowed, in
the best interest of justice.

Drawn by Filed by

Syed Zulfiqar Abbas Naqvi

Advocate, Supreme Court Advocate on Record

Mudassar Hussain Malik

Advocate, Supreme Court

Dated: ___________2024

 Certificate: Certified that, as per the information provided, it is

certified that this is the first petition for leave to appeal in this
Court against the impugned judgment dated 03.06.2024 passed
by Honourable Islamabad High Court Islamabad in Crl. Appeal.
No.81 of 2024 & 73 of 2024.
  Second Certificate: All the clear / legible copies of the
illegible documents have been compared word to word and
found correct in all respect.

Advocate on Record

IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD

(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State

Versus

Imran Ahmad Khan Niazi etc.

AFFIDAVITS OF FACTS

I,
Advocate on Record,
Supreme Court of Pakistan,
Islamabad.

Do hereby solemnly affirm and declare as under:-

1. That averments of facts contained in the accompanying

Cr. PLA are true to the best of my knowledge and belief
and nothing has been concealed or misrepresented.

2. That the said facts have been obtained after perusal of

the record of the case and information received by the
petitioner and nothing has been kept secret from this
august court.
Sworn at Islamabad on this ___ day of June, 2024.

Deponent
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD
(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State

Versus

Imran Ahmad Khan Niazi etc.

AFFIDAVITS OF SERVICE

I,
Advocate on Record,
Supreme Court of Pakistan,
Islamabad.

Do hereby solemnly affirm and declare as under:-

That I did serve the respondents with a notice Registered

post AD with regard to filing of Crl. PLA against the judgment
dated 03.06.2024 passed by Hon’able Islamabad High Court,
Islamabad in Crl. Appeals No.81/2024 & 73/2024.

Sworn at Islamabad on this ___ day of June – 2024.

Deponent
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD
(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State …….. Petitioner

Versus

Imran Ahmad Khan Niazi etc. ……Respondents

Court appealed from: Islamabad High Court Islamabad

Counsel for the petitioner Syed Zulfiqar Abbas Naqvi, ASC

AOR

Counsel for the respondents

INDEX

Sr. # Description of Documents Dated Pages

1. Petition for leave to appeal
2. Impugned judgment of Islamabad High 03.06.2024
Court, Islamabad.
3. Grounds of Crl. Appeals No.81/2024 &
73/2024
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
5. Affidavits of AOR
Certified that this paper book as bound is complete.

Advocate on Record,
Supreme Court of Pakistan,
Islamabad.
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD
(Appellate Jurisdiction)

Cr. PLA No._______________/2024

The State through Federation of Pakistan, Secretary Ministry

of Interior (Appropriate Government), Pak Secretariat
Constitution Avenue, Islamabad.

…Petitioner

Versus

Makhdoom Shah Mehmood Qureshi S/o Makhdoom Sajjad

Hussain Qureshi, resident of House No.3, Street No.52, F-8/4,
Islamabad.

…Respondent

PETITION UNDER ARTICLE 185 (3) OF THE

CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN
1973 AGAINST THE JUDGMENT DATED 03.06.2024
WHEREBY THE HONOURABLE DIVISION BENCH OF
ISLAMABAD HIGH COURT, ISLAMABAD, ACQUITTED THE
RESPONDENT WHILE ACCEPTING CRIMINAL APPEAL
NO.73/2024.

Respectfully Sheweth:

The points of law arising for determination are as follows:

1. 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 (OSA), is without jurisdiction
and ultra vires?

2. Whether the right of appeal is a statutory right and it

cannot be availed unless it is expressly conferred by
law?
3. Whether the High Court lacks jurisdiction or power to
create rights which are not provided by the
Constitution or a validly enacted law?

4. Whether the order of the Federal Government passed

in exercise of authority under section 13(6) of OSA
directing that the procedure for the trial of accused
under section 5 and 9 of OSA shall be as prescribed
for offences under the Pakistan Criminal Law
(Amendment) Act, 1958 (Act, 1958), confer any right of
Appeal to the accused under the Act, 1958 or the
Cr.P.C?

5. Whether the right of appeal is a constitutional right

and whether High Court can provide a right of appeal
to an accused tried for offences under the OSA when
no such right is available under the provisions of the
OSA by applying the rule of casus omissus or doctrine
of reading in?

6. Whether the special law will have the overriding effect

on the general law and the provisions of filing of an
appeal under the criminal procedure code are not
applicable in case of accused tried for offences under
the OSA in view of provision of section 5(2) of criminal
procedure code?

7. Whether the conduct of the respondent was non-

cooperative throughout the trial, which amounts to
defeat the cause of justice by indefinite
procrastination?

8. Whether in case of observation of lacking the fair trial

under Article 10-A of the Constitution of Islamic
Republic of Pakistan, 1973, 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?

9. Whether in presence of overwhelming evidence in

support of prosecution case and the admission on the
part of accused during the cross examination as well
as in examination under section 342 Cr. P.C, is
sufficient to establish the case beyond any shadow of
doubt and the acquittal of the respondent is perverse,
arbitrary and in excess of jurisdiction?
 10. Whether the documentary evidence alongwith forensic
report are reliable evidence and conviction can be
made on its basis in view of Article 164 of the Qanoon-
e-Shahadat, 1984?

11. Whether the impugned judgment / short order which

does not reflect any ground of acquittal of the
respondent, is sustainable in the eyes of law?

12. Whether the Islamabad High Court has rightly

appreciated the evidence available on the record on the
touchstone of criminal justice, while acquitting the
respondent?

BRIEF FACTS:

1. That on 05.08.2022 inquiry No.111 of 2022 was

registered in CTW/F.I.A on the direction of D.G FIA
on the basis of decision of the Federal Cabinet
received in F.I.A through Ministry of Interior
regarding the leaked audios of Imran Ahmad Khan
Niazi and his associates pertaining to cypher, which
was publicly available on different social media
platforms, whereupon the F.I.A constituted the
inquiry team. During the subsistence of inquiry a
complaint (Exh.PW-16/A) under section 13 (3) of
the Official Secrets Act, 1923 was sent by the then
Secretary Interior. The Inquiry Team concluded the
inquiry and recommended the registration of case
under the provisions of the OSA, 1923. Resultantly
with the approval of the competent authority an
F.I.R No.6/2023 dated 15.08.2023 under section 5
and 9 of the official Secrets Act 1923 read with
Section 34 of the Pakistan Penal Code 1860, was
registered against the respondent at P.S CTW/FIA,
Islamabad.
2. That it is alleged in the FIR that the respondent are
involved in communication of information contained
in secret classified document (Cypher Telegram
received from Parep Washington dated 07.03.2022
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
interest of state security. It is further alleged that
the numbered and accountable copy of cypher
telegram sent to P.M office was deliberately kept in
his custody by the Imran Ahmad Khan Niazi with
malafide intention and was never returned to the
Ministry of Foreign Affairs, which is still in his
illegal possession / retention of the Imran Ahmad
Khan Niazi. It is further alleged that retention and
misuse of the cypher telegram by the respondent
compromised the entire cypher security system of
the state and secret communication method of
Pakistani mission abroad. These actions of the
respondent directly / indirectly benefited the
interest of foreign powers and caused loss to the
state of Pakistan.

3. That during the course of investigation the

respondent were arrested. The statements of the
PWs under section 161 Cr. P.C were recorded. PW-
11 also recorded his statement under section 164
Cr. P.C before the Assistant Commissioner (PW-17).
The relevant record from P.M office, Ministry of
Foreign Affairs, Cabinet Division, National Security
Division, Pakistan Electronic Media Regulatory
Authority and Pakistan Television were taken into
 possession including the technical analysis report
through seizure memos. The Investigating Officer,
after completing the investigation, prepared the
report under section 173 Cr.P.C and after the
acquisition of the complaint from the then Secretary
Interior (PW-20) as required under section 13 (3) of
the OSA, 1923, submitted in the trial court,
especially notified under the Official Secrets Act,
1923.

4. That on 09.10.2023 the Ministry of Law & Justice

Islamabad issued notification No.F.No.04(68)/2023-
VIII dated 12.09.2023 wherein jail trial of
respondent at District Prison Attock was ordered,
which was subsequently on the order of Islamabad
High Court Islamabad the Imran Ahmad Khan Niazi
was shifted to Central Prison Adyala Rawalpindi.

5. That the copies as required under the law were

supplied to the respondent. Initially charge was
framed on 23.10.2022 wherein the respondent did
not plead guilty and claimed trial. Thereafter 05
PWs were examined but due to the injunctive order
dated 16.11.2023 passed by the Islamabad High
Court in I.C.A No.387/2023 filed by the Imran
Ahmad Khan Niazi, the trial was stayed. The
Islamabad High Court in I.C.A No.367 of 2023 vide
order dated 21.11.2023 declared the proceedings
commencing from 29.08.2023 as illegal and same
were vitiated. It is pertinent to mention here that
the petitioner assailed the order dated 21.11.2023
before the Supreme Court, which still pending.
6. That on 04.12.2023 again copies were supplied to
the respondent as required under the law. The fresh
charge was framed under section 5 (3)(a), 5(3)(b),
5(1)(d), 9 OSA, 1923 read with 34 PPC on
13.12.2023. The respondent did not plead guilty
and claimed trial. The learned trial court vide order
dated 14.12.2023, allowed the application of the
prosecution under section 14 of the OSA, 1923.

7. That the prosecution produced 25 PWs in its

support but the defense did not cross examine the
PWs. Imran Ahmad Khan Niazi assailed the order
dated 14.12.2023 before the Honourable Islamabad
High Court, Islamabad through Crl. Revision
Petition No.200/2023 titled as Imran Khan Vs. The
State and others, which was accepted vide order
dated 11.01.2024. Resultantly the proceedings
started from 14.12.2023 i.e. after framing of the
charge, were set aside.

8. That the prosecution again produced the witnesses

in its support but the defense did not cross examine
with the plea that they will cross examine all the
PWs after recording of examination in chief of all the
witnesses / PWs. The prosecution got examined the
in chief of all 25 witnesses till 23.01.2024. The
learned counsel of the respondent cross examined
only 04 PWs and thereafter lingered on the matter
on one pretext or the other. Ultimately the learned
trial court appointed defense counsels on state
expense, who cross examined all PWs. The
respondent were examined under section 342 Cr.
P.C and after hearing the arguments the learned
 trial court vide judgment dated 30.01.2024
convicted the respondent in the following manners:

“34. This court holds that Imran Ahmad

Khan Niazi and Shah Mehmood Qureshi are
guilty u/s 5(3)(a), 5(1)(c) punishable u/s5(3)(b)
of OSA read with 34 PPC. Moreover, accused
Imran Ahmad Khan Niazi is held guilty. In
view of the foregoing evidence available on
record which is unrebutted, it is clear that
due to advertent and willful acts of accused
persons, the accused Imran Ahmad Khan
Niazi is held guilty in the light of charge u/s
5(3)(a) of the Official Secret Act, 1923 and he
is convicted and sentenced u/s 5(3)(a) of the
OSA, 1923 and punished with rigorous
imprisonment for a term of 10-years.
Secondly, the accused Imran Ahmed Khan
Niazi is also held guilty in the light of
charge u/s 5(1)(c) and he is convicted and
sentenced u/s 5(3)(b) of the OSA, 1923 and
punished with rigorous imprisonment for a
term of 2-years and with fine of Rs.10 Lacs.
Thirdly, accused Imran Ahmad Khan Niazi
is held guilty in light of charge u/s 5(1)(d) of
OSA, 1923he is convicted and sentenced u/s
5(3)(b) of OSA, 1923 and punished with
rigorous imprisonment for a term of 2-years
and with fine of Rs.10 Lacs. Fourthly, both
the accused Imran Ahmad Khan Niazi and
Shah Mehmood Qureshi are held guilty in
light of charge u/s 5(3)(a) of the OSA,1923
read with section 34 PPC and are convicted
and sentenced u/s 5(3)(a) read with section
34 PPC and are convicted and sentenced u/s
5(3)(a) read with section 34 PPC and
punished with rigorous imprisonment for a
term of 10-years, each. Fifthly, the accused
Shah Mehmood Qureshi is held guilty in
light of charge u/s 9 read with section 5(3)(a)
of the OSA, 1923 and is convicted and
sentenced u/s 5(3)(a) of OSA, 1923 with
rigorous imprisonment for a term of 10-
years. The benefit of section 382-B Cr. PC
shall also be awarded to both the convicts.
All the supra mentioned sentences shall run
concurrently.”

9. That respondent preferred the appeal No.73/2024

respectively under section 410 Cr. P.C read with
section 10 of the Criminal Law (Amendment) Act,
1958 against the judgment dated 30.01.2024
10. That the petitioner objected to the filing of appeal
under section 410 Cr. P.C read with section 10 of
the Criminal Law (Amendment) Act, 1958 as the
Official Secrets Act, 1923 does not provide right of
appeal and it is established principle of law that the
appeal is the statutory right, which is only
competent when the statute provides the same. The
Division Bench of Islamabad High Court heard the
arguments but did not pass any order.

11. That the petitioner also moved the application

under section 428 Cr.P.C for an additional evidence
but no order was passed by the Division Bench of
Islamabad High Court, Islamabad.

12. That the respondent also raised the objection

regarding the form and manner of trial conducted
by the trial court. Both the parties advanced their
arguments. The Division Bench of Islamabad High
Court vide its short order dated 03.06.2024
acquitted the respondent with the following
observations:

“For the reasons to be recorded later,

instant appeal is allowed and
judgment dated 30.01.2024 is set
aside; consequently, the appellant
namely Imran Ahmad Khan Niazi is
acquitted of the 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. He
shall be released forthwith, if not
incarcerated in another case.”

The similar order was passed in appeal No.81 of

2023 titled as “Imran Ahmad Khan Niazi Vs. The
State”.
13. That the petitioner is filing the instant petition
keeping in view the above stated short order,
however, reserves the right to file additional
grounds and law points after the receipt of the
detailed judgment.

14. That the petitioner seeks the acceptance of the

petition for the grant of leave on the following
amongst other

GROUNDS:

a) That the impugned judgment / short order is

perverse, arbitrary and contrary to the material
available on the record as such liable to be set aside.

b) That the Official Secrets Act, 1923 does not

provide the provision of filing an appeal against
the judgment of the learned Special Judge. The
right of appeal is a statutory right and it cannot
be availed unless it is expressly conferred by law.
Reliance is placed on PLD 2005 SC 173 titled as
“Syed Mansoor Shah and others Vs. the State”,
as such the impugned judgment is not
sustainable in the eyes of law.

c) That Honourable Islamabad High Court while

passing impugned judgment did not appreciate
that the High Court lacks jurisdiction or power to
create rights which are not provided by the
Constitution or a validly enacted law. It was
neither a case of casus omissus nor necessitated
application of doctrine of reading in as no
constitutional guarantees have been violated.
Reliance is placed on 2022 SCMR 650 titled as
“Munir Hussain and three others Vs. Province of
 Sindh and another”, as such the entertainment of
the appeal was without jurisdiction, hence the
impugned judgment is liable to be set aside.

d) That the Official Secrets Act, 1923 is not a

schedule offence of the Pakistan Criminal Law
(Amendment) Act, 1958. The Section 13 (6) of the
OSA, 1923 empowers the appropriate government
that if it think 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
nowhere present in the statute that for filing an
appeal the provisions of Pakistan Criminal Law
(Amendment) Act, 1958, shall 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.
Reliance is placed on 2022 SCMR 566 titled as
“Deputy Director Finance and others Vs. Dr. Lal
Marjan and others”, hence the impugned
judgment is liable to be set aside.

e) That the special law will have the overriding effect

on the general law, as such the criminal
procedure code is not applicable in case of
accused tried for offences under the OSA in light
of section 5(2) of Cr.P.C, as such the provisions of
section 410 Cr.P.C are not available to a convict
 under the provisions of OSA, 1923, as such very
entertainment of the appeal under the provisions
mentioned in the memo of appeal are not
permissible under the law.

f) That the conduct of the respondent were non-

cooperative throughout the trial and they made
very possible efforts to delay the proceedings. The
record of the trial court is evident of the fact that
65 miscellaneous applications were 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. The witnesses remained present
in the court but their cross examination was not
carried out by the defense counsels. The learned
trial court appointed the defense counsels on the
expense of the state, who had completed the trial.
The respondent tried to defeat the cause of justice by
indefinite procrastination. This aspect has not been
considered by the Honourable Division Bench of
Islamabad High Court while acquitting the
respondent.

g) That it is settled principle of law that if at all

courts comes to the conclusion that the trial was
not carried out in view of Article 10-A of the
Constitution of Islamic Republic of Pakistan,
1973. The only way out provided under the law is
to remand the matter to the trial court for giving
proper opportunity. Reliance is place on 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” as such the acquittal of the respondent
are contrary to the settled principle of law, hence the
impugned judgment is liable to be set aside.

h) That the prosecution has produced the

overwhelming evidence in support of its case.
Moreover, the admission made by the accused
during the cross examination as well as in
examination under section 342 Cr. P.C, which
are sufficient to establish the case beyond any
shadow of doubt.

i) That the prosecution has produced the

documentary evidence alongwith 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
Honourable Division Bench of Islamabad High
Court, while acquitting the respondent, as such
the impugned judgment is not sustainable in the
eyes of law.

j) That the impugned judgment / short order does

not reflect any ground of acquittal of the
respondent, even it is not observed that the
prosecution has failed to prove its case beyond
any shadow of doubt.

k) That with utmost respect it submitted that the

Islamabad High Court has not appreciated the
evidence available on the record as well as the
admission of the accused, while acquitting the
respondent, as such the impugned judgment is
not sustainable in the eyes of law.
 l) That even other the impugned judgment is not
sustainable in the eyes of law.

m) Petitioner reserves the right to urge additional grounds

upon release of the reasons for the short order.

PRAYER

It is respectfully prayed that the leave to appeal

against the impugned judgment dated 03.06.2024
may kindly be granted and petition may graciously
be converted into appeal and the same be allowed,
in the best interest of justice.

Drawn by Filed by

Advocate on Record

Dated: ___________2024

 Certificate: Certified that, as per the information provided, it

is certified that this is the first petition for leave to appeal in
this Court against the impugned judgment dated 03.06.2024
passed by Honourable Islamabad High Court Islamabad in Crl.
Appeal. No.73 of 2024.

 Second Certificate: All the clear / legible copies of the

illegible documents have been compared word to word and
found correct in all respect.

Advocate on Record
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD

(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State

Versus

Makhdoom Shah Mehmood Qureshi

AFFIDAVITS OF FACTS

I,
Advocate on Record,
Supreme Court of Pakistan,
Islamabad.

Do hereby solemnly affirm and declare as under:-

1. That averments of facts contained in the

accompanying Cr. PLA are true to the best of my
knowledge and belief and nothing has been concealed
or misrepresented.

2. That the said facts have been obtained after perusal of

the record of the case and information received by the
petitioner and nothing has been kept secret from this
august court.

Sworn at Islamabad on this ___ day of June, 2024.

Deponent
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD
(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State

Versus

Makhdoom Shah Mehmood Qureshi

AFFIDAVITS OF SERVICE

I,
Advocate on Record,
Supreme Court of Pakistan,
Islamabad.

Do hereby solemnly affirm and declare as under:-

That I did serve the respondent with a notice Registered

post AD with regard to filing of Crl. PLA against the judgment
dated 03.06.2024 passed by Hon’able Islamabad High Court,
Islamabad in Crl. Appeal No. 73/2024.

Sworn at Islamabad on this ___ day of June – 2024.

Deponent
 IN THE SUPREME COURT OF PAKISTAN AT ISLAMABAD
(Appellate Jurisdiction)

Cr. PLA No._____________________/2024

The State …….. Petitioner

Versus

Makhdoom Shah Mehmood Qureshi ……Respondent

Court appealed from: Islamabad High Court Islamabad

Counsel for the petitioner Syed Zulfiqar Abbas Naqvi, ASC

AOR

Counsel for the respondent

INDEX

Sr. # Description of Documents Dated Pages

1. Petition for leave to appeal
2. Impugned judgment of Islamabad High 03.06.2024
Court, Islamabad.
3. Grounds of Crl. Appeals No. 73/2024

4.
5.
6.
15.
16.
5. Affidavits of AOR

Certified that this paper book as bound is complete.

Advocate on Record,
Supreme Court of Pakistan,
Islamabad