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ISLAMABAD: The Islamabad High Court (IHC) has directed the special court, established under Official Secrets Act, 1923, to conclude trial of the leaking cipher within four weeks

IHC Chief Justice Aamer Farooq, on Saturday, released detailed judgment on the application of former foreign minister and Vice-Chairman of Pakistan Tehreek-e-Insaf (PTI) Shah Mahmood Qureshi, which he turned down on November 15.

The IHC said undoubtedly, bail ought not to be held as punishment but where sentence involved is death or life imprisonment, the Court has to proceed with caution; in this regard, the balance is to be maintained that liberty of a person ought not be compromised but gravity of charge or allegation is also to be kept in view. The suitable balance can be achieved where trial has already commenced by way of appropriate direction to the trial Court to conclude the trial expeditiously.

IHC issues stay order against jail trial of Imran Khan in cipher case

The judgment said that under Section 109 PPC, liability of the person, who abets the commission of offence, is that of a principal offender. Liability of the principal offender is provided for the offence charged under section 5(1)(a) of the Official Secrets Act, 1923, in section 5(3)(a) which entails punishment of death up to life imprisonment, hence, the same would be attracted in the case of the petitioner.

Moreover, under section 9 of the Act of 1923, if any person incites to commit, conspires to commit or aids or abets the commission of offence, he is to be proceeded within the same manner as if he had committed the main offence under the Act. In the referred facts and circumstances, the case does fall within the prohibitory clause of section 497 CrPC and, in such cases, generally bail is not granted unless there is reasonable cause for grant of the same on the basis of material and evidence available on record.

The judgment noted that the accused standing trial on charges of being accomplice of principal offender is not to be granted any concessionary treatment as was observed by this Court in case reported as Zakir Jaffer and another versus The State and another (2022 PCr.LJ 1242).

Justice Farooq wrote that according to the Supreme Court judgments once trial has commenced, bail not granted as a rule of procedure and not the law, however, this procedure has consistently been followed as can be discerned from the case law referred above. However, it would suffice to observe at this stage that charge against the petitioner is that he incited and/or abetted the commission of offence under section 5 of the Act.

The principal accusation is against Imran Ahmed Khan Niazi (for commission of offence under section 5(1)(a) of the Official Secrets Act, 1923). The bail application of Imran Ahmed Khan Niazi (Crl. Misc. 1354- B/2023) was dismissed by this Court on 16.10.2023; the case of the petitioner is inextricably connected with the referred co-accused.

Regarding the petitioner’s plea for immunity, the judgment said that the bare reading of Article 248 of the Constitution shows that immunity is not extended to the case of petitioner as it is only applicable where any allegation in criminality levelled with respect to performance of official duty but in the instant case allegation against the petitioner is that his words in the public gathering/jalsa on 27.03.2023 amounted to aiding, abetting and inciting the co-accused to divulge the contents of the cypher. The referred act does not fall within the ambit of official duty; clause 55 (4) of the Rules of Business, 1973 also is not attracted in the facts and circumstances. Insofar as jail trial or providing of documents is concerned, that is subject matter of Crl. Revision No.155/2023 and Crl. Revision No.170/2023, hence to allude to referred issues in bail would not be appropriate.

Copyright Business Recorder, 2023

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gnay.aly Nov 20, 2023 12:11pm
The IHC CHIEF JUSTICE is the
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Kifayat Nov 23, 2023 03:32pm
CJ IHC kay instructions, "Ya tu warr gaya...." and so is the Boss
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