Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-19, officially reported as 2025 PLJ 126. In this matter between Imran Ahmad Khan Niazi and Federation of Pakistan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Imran Ahmad Khan Niazi vs Federation of Pakistan and others Case No.: I.C.A.No.367 of 2023 Date of Judgment:2023-12-19 Reported As: 2023 IHC 202, PLD 2024 Islamabad 155, PLJ 2025 Islamabad 126 Result: Appeal Allowed

JUDGMENT

JUDGMENT MIANGUL HASSAN AURANGZEB, J:- Through the instant intra Court appeal filed under Section 3(2) of the Law Reforms Ordinance, 1972 (the 1972 Ordinance) the appellant, Imran Ahmad Khan Niazi, assails judgment dated 16.10.2023 passed by the learned Judge-in-Chambers, whereby writ petition No.2656/2023 filed by him, was disposed of with the observation that the said petition was without merit and that notification F.No.8(93)/2021-A-IV, dated 29.08.2023 issued by the Ministry of Law and Justice, did not warrant setting-aside. Furthermore, it was observed that in case the appellant has any grievance regarding his trial being conducted in jail, he may voice his grievance before the Special Court which was conducting the proceedings against him in jail precincts. 2. Through the notification dated 29.08.2023 impugned in the said writ petition, the Ministry of Law and Justice had conveyed its "no objection" for the appellant's trial by the Special Court to be conducted on 30.08.2023 in District Jail, Attock. The said notification is stated to have been issued on the basis of "security concerns" as conveyed by the Ministry of Interior vide letter No.13/23/2022- NAP, dated 29.08.2023. 3. In the said writ petition, the appellant had also questioned the designation of the Judge Anti- Terrorism Court-I, Islamabad to try offences under the provisions of the Official Secrets Act, 1923 ("OSA") on the ground that he lacks the essential qualification to be so designated. Chronology of events:- 4. The documents on the record show that FIR No.06/2023 was registered on 15.08.2023 against the appellant and his co-accused under Sections 5 and 9 of the OSA read with Section 34 of the Pakistan Penal Code, 1860 ("PPC") at Police Station Counter Terrorism Wing, FIA, Islamabad. As per

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the contents of the said FIR, while the appellant was serving as the Prime Minister and his co- accused, Shah Mahmood Qureshi, as Foreign Minister, they and their associates were involved in the communication of information (contained in a secret classified document which was a cypher telegram sent by Pakistan Representative ("Parep") Washington on 07.03.2022 to the Secretary, Ministry of Foreign Affairs) to the public at large. The appellant and the co-accused were alleged to have twisted the facts to achieve their ulterior motive and personal gains in a manner prejudicial to the interest of State security. They were also alleged to have held a clandestine meeting at village Bani Gala on 28.03.2022 in furtherance of a conspiracy to misuse the contents of the cypher in order to accomplish their nefarious designs. The appellant was also accused of having directed the former Secretary to the Prime Minister, Muhammad Azam Khan, to prepare minutes of the said meeting by manipulating the contents of the cypher so as to use it for his vested interest at the cost of national safety. The appellant was accused of having deliberately retained in his custody the accountable copy of the cypher sent to the Prime Minister's office never to be returned to the Ministry of Foreign Affairs. In the FIR, it was also stated that the cypher being an official secret document and classified as such was still in the appellant's possession and that the unauthorized retention and misuse of the cypher had compromised the entire cypher security system of the State and secret communication methods used by Pakistan's Missions abroad. The actions of the accused persons were said to have directly or indirectly benefitted the interests of foreign powers and caused loss to the State of Pakistan. 5. The said FIR was registered after an inquiry in the matter was concluded on 05.10.2022. The appellant was formally arrested in the case on 16.08.2023. The Investigation Officer had submitted an application before the learned trial Court for the appellant's physical remand but the said application was turned down as he was in judicial custody serving a sentence at District Jail, Attock after having been convicted vide judgment dated 05.08.2023 passed by the Additional Sessions Judge, Islamabad (East) for offences under Sections 167 and 178 of the Elections Act, 2017. 6. Vide order dated 16.08.2023, the learned Judge, Special Court turned down the prosecution's application for the appellant's physical remand and it was ordered that his judicial remand was to continue for fourteen days. In the said order dated 16.08.2023, the learned Judge, Special Court had recorded his apprehension regarding the appellant's security if he was to be brought all the way from Attock to Islamabad where the Special Court was to conduct its proceedings. The learned Judge, Special Court however did not express any desire for the proceedings against the appellant to be conducted in jail. 7. Vide order dated 28.08.2023 passed in Criminal Appeal No.273/2023, this Court suspended the sentence handed down to the appellant vide judgment dated 05.08.2023 passed by the Additional Sessions Judge, Islamabad (East). Since the appellant had also been arrested in case FIR No.06/2023, dated 15.08.2023 registered under Sections 5 and 9 of the OSA, his incarceration continued in District Jail, Attock. 8. The first in the series of documents relevant to the conduct of the proceedings and trial against the appellant in jail is a letter dated 27.08.2023 from the office of the Islamabad Capital City Police Officer ("ICCPO") to the Deputy Commissioner, Islamabad Capital Territory ("ICT") wherein reference is made to a special report No.344/SB (Intelligence), dated 27.08.2023 (which has not been brought on record) from the Assistant Inspector General of Police, Special Branch, Islamabad stating that "it has been learnt from various sources that on the occasion of the appearance of Chairman, PTI in court, the leadership of PTI is trying its best to gather maximum workers to express solidarity with Chairman, PTI." It is also stated that "the Lawyers Association of Insaf Lawyers Forum (ILF) has also directed to lawyers to assemble before the court." This, according to the ICCPO, may create a law and order situation. Furthermore, in the said letter, it is also mentioned that there are life threats to the Chairman, PTI and a huge assembly of lawyers and workers of PTI

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may lead to an untoward incident. The said letter was sent to the Deputy Commissioner, Islamabad for information and necessary preventive measures. 9. Vide letter dated 29.08.2023, the office of the Chief Commissioner, ICT sent the said letter dated 27.08.2023 for "information and appropriate action as per law" to the Joint Secretary (ICT), Ministry of Interior. Vide Office Memorandum dated 29.08.2023, the Ministry of Interior sent the said letters dated 27.08.2023 and 29.08.2023 containing the special report to the Secretary, Ministry of Law and Justice. It was in these circumstances that the Ministry of Law and Justice issued notification dated 29.08.2023, which was impugned by the appellant in writ petition No.2656/2023. Vide order dated 30.08.2023, the appellant had been remanded in judicial custody for a further period of fourteen days. 10. After hearing the arguments of the learned counsel for the contesting parties, the learned Judge-in-Chambers reserved judgment on 12.09.2023. On the very same day, the learned Judge, Special Court sent a request to the Secretary, Ministry of Law and Justice for the issuance of a No Objection Certificate ("NOC") for the appellant's trial in case FIR No.06/2023 to be conducted in District Jail, Attock. In the said letter, the learned Judge, Special Court, after making reference to Section 352 of the Code of Criminal Procedure, 1898 ("Cr.P.C.") and Rule 3 in Part-I of Chapter-I in Volume-III of the Rules and Orders of the Lahore High Court ("Rule 3 of the LHC Rules"), expressed his intention to conduct the trial in the said jail. The reason given for the said request was "security issues and keeping in view the life threats" to the appellant "in the prevailing situation." Reference in this letter is made to the Law and Justice Division's earlier notification dated 29.08.2023. 11. Vide notification dated 12.09.2023, the Ministry of Law and Justice conveyed its "no objection" to the trial to be conducted in District Jail, Attock. The said notification is stated to have been issued "in the light of" Rule 3 of the LHC Rules read with Section 352 Cr.P.C. as well as on the request dated 12.09.2023 of the learned Judge, Special Court. The said notification was only for the trial to be conducted in jail on 13.09.2023. 12. The Special Court's order dated 13.09.2023 shows that it was on the basis of the said notification dated 12.09.2023 that the learned Judge, Special Court conducted the proceedings on 13.09.2023 at District Jail, Attock. 13. On 25.09.2023, the learned Judge, Special Court sent another request to the Secretary, Law and Justice Division for the issuance of an NOC for conducting the trial against the appellant in District Jail, Attock. The said letter dated 25.09.2023 is couched in the same language as the earlier letter dated 12.09.2023. 14. Vide notification dated 25.09.2023, the Ministry of Law and Justice conveyed its "no objection" to conducting the trial against the appellant but there is no mention in the said notification for the trial to be conducted in District Jail, Attock. Be that as it may, assuming that the said notification was a permission to conduct the trial in District Jail, Attock, the same was only for one day i.e. 26.09.2023. 15. On 26.09.2023, the appellant was transferred from District Jail, Attock to Central Jail, Rawalpindi pursuant to order dated 25.09.2023 passed by this Court in writ petition No.2471/2023, titled "Imran Ahmad Khan Niazi Vs. Federation of Pakistan". On 02.10.2023, the prosecution submitted a report under Section 173 Cr.P.C. before the Special Court seeking trial against the accused in FIR No.06/2023. On the same day, the learned Judge, Special Court sent yet another request to the Secretary, Ministry of Law and Justice for the issuance of an NOC for conducting the trial against the appellant on 04.10.2023 in Central Jail, Rawalpindi. The learned Judge, Special Court also expressed his intention to conduct the trial at the said jail. We find the contents of the said letter rather curious inasmuch as after reference is made therein to the Law and Justice Division's earlier notifications dated 12.09.2023 and 25.09.2023, it reads thus:

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"It is desired that whether in the prevailing situation there is any security risk with regard to production of under trial prisoner Imran Ahmed Khan Niazi is involved or not while producing above said accused before this Court. In case your good-office if feels appropriates and convenient in affirmative situation with regard to jail trial. Further, in the light of rules and orders of Hon'ble Lahore High Court." 16. We have not tampered with the grammar in the paragraph extracted herein above but it has caused us to wonder as to whether the learned Judge, Special Court was conditioning his intention to conduct the trial in jail with what the Ministry of Law and Justice found "appropriate and convenient." Anyhow, in response to the learned Judge, Special Court's said letter dated 02.10.2023, the Ministry of Law and Justice issued notification dated 03.10.2023 conveying its "no objection" to the trial against the appellant to be conducted in the jail where he was confined "till his security clearance by the quarters concerned (Interior Division)." Subsequently on 13.10.2023, the Ministry of Law and Justice issued yet another notification conveying its "no objection" to the trial against the appellant "& others" to be conducted in the jail where they were confined "until further orders." 17. On 16.10.2023, the learned Judge-in-Chambers turned down the appellant's challenge to the Ministry of Law and Justice's notification dated 29.08.2023 by disposing of writ petition No.2656/2023. 18. The instant intra Court appeal against the judgment dated 16.10.2023 was filed on 23.10.2023 and on the same day, the learned accused. On 08.11.2023, the learned Judge, Special Court sent a letter to [t]he Federal Government through Chief Commissioner, Islamabad" seeking the grant of approval for the trial in the case against the appellant etc. to be conducted in Central Jail, Rawalpindi. In the said letter dated 08.11.2023, the learned Judge, Special Court had taken the position that he was already conducting the trial in jail on the basis of the Ministry of Law and Justice's notification dated 13.10.2023 and that there were threats to the life of the appellant. He has also made reference to an application filed by the prosecution seeking the exclusion of the public during the trial. 19. Vide letter dated 08.11.2023, the office of the Chief Commissioner, ICT forwarded the said letter dated 08.11.2023 to the Ministry of Interior. Vide Office Memorandum dated 08.11.2023, the Ministry of Interior sent the above referred letters dated 08.11.2023 to the Secretary, Law and Justice Division for "further and necessary action as per rules and procedure." On 10.11.2023, the Ministry of Law and Justice submitted a summary for the Cabinet proposing that the Federal Government may accord approval for the trial against the appellant and his co-accused to be conducted in the jail where they were confined for offences under the OSA. Perusal of the said summary shows that the decision solicited by the Ministry of Law and Justice from the Cabinet was on the basis of Rule 3 of the LHC Rules. 20. On 12.11.2023, the Cabinet accorded approval to the proposal made in the Ministry of Law and Justice's summary dated 10.11.2023, which had been circulated in terms of Rule 17(1)(b) read with Rule 19(1) of the Rules of Business, 1973. 21. On 13.11.2023, the Ministry of Law and Justice issued a notification to the effect that the Federal Government had accorded approval for the trial against the appellant and his co-accused to be conducted in Central Jail, Rawalpindi or wherever they were confined for offences under the OSA. 22. Vide order dated 14.11.2023, this Court, after briefly hearing the learned counsel for the appellant and the learned Attorney-General for Pakistan, stayed the proceedings before the Special Court. 23. On 15.11.2023, the Ministry of Law and Justice submitted another summary to the Cabinet proposing that the Federal Government may grant "sanction / approval for the proceedings and trial of Mr. Imran Khan Niazi and others conducted by the Special Court having jurisdiction under the [Official Secrets Act, 1923] at District Jail, Attock and Central Jail, Adyala, Rawalpindi during the period from 29.08.2023 to 12.11.2023 (both days inclusive) for offences under the Official Secrets Act,

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1923." On the very same day, i.e. 15.11.2023, the Cabinet accorded approval to the said proposal made by the Ministry of Law and Justice, in its summary dated 15.11.2023, which had also been circulated in terms of Rule 17(1)(b) read with Rule 19(1) of the Rules of Business, 1973. 24. As per the notification dated 15.11.2023 issued by the Ministry of Law and Justice, the Federal Government granted sanction for the proceedings and the trial against the appellant and the co- accused conducted by the Special Court at District Jail, Attock and Central Jail, Rawalpindi during the period from 29.08.2023 to 12.11.2023 (both days inclusive) for offences under the OSA. Contentions of the learned counsel for the contesting parties:- 25. Learned counsel for the appellant submitted that Mr. Abual Hasnat Muhammad Zulqarnain ("Mr. Zulqarnain) had been designated as the Judge of the Special Court to try offences under the OSA at the instance of the executive; that such designation by the executive is a serious inroad on the independence of the judiciary; that such designation ought to have been made with the consultation of the Chief Justice of Pakistan as the OSA is a federal statute; that the subject of official secrets is covered in Entry No.1, Part-I of the Fourth Schedule to the Constitution; and that the appointment of Mr. Zulqarnain as Judge of the Special Court to try offences under the OSA is illegal. 26. Furthermore, it was submitted that the concept of jail trial goes against the requirements of due process; that the learned Judge, Special Court has not given any access to the media or the appellant's family members to witness the proceedings and trial in jail; that the trial is being conducted in a room where barely seven to eight people can stand; that the application submitted by the family members of the appellant's co-accused to attend the proceedings and the trial has been turned down by the learned Judge, Special Court; that the requirements of Section 352 Cr.P.C. read with Rule 3 of the LHC Rules had not been fulfilled when the proceedings and the trial were conducted in jail; that the notification dated 29.08.2023 impugned in writ petition No.2656/2023 was not a judicial order passed under Section 352 Cr.P.C.; that the notifications issued by the Ministry of Law and Justice for conducting the proceedings and the trial against the appellant in jail are in furtherance of the Government's strategy for his political victimization and repression; that the learned Attorney-General has brought on record several documents which, according to him, justify the appellant's trial in jail; that even though the appellant had challenged notification dated 29.08.2023 in writ petition No.2656/2023, this Court can take judicial notice of the events occurring and notifications issued after the judgment was reserved by the learned Judge-in-Chambers; that the learned Attorney-General's stance is that the requirements under Section 352 Cr.P.C. read with Rule 3 of the LHC Rules for conducting the trial against the appellant in jail had been fulfilled whereas the learned Judge-in-Chambers had held that the notification dated 29.08.2023 had been issued by the Ministry of Law and Justice under Section 9(2) Cr.P.C.; that Section 9(2) Cr.P.C. applies to a venue for the Court of Sessions and not to a venue for Special Courts; and that the law does not provide a remedy of an appeal against an order passed under Section 9(2) Cr.P.C. 27. Learned counsel for the appellant further submitted that notifications dated 29.08.2023, 12.09.2023, 25.09.2023, 03.10.2023, and 13.10.2023 issued by the Ministry of Law and Justice are liable to be declared unlawful on the sole ground that they are not preceded by any judicial order passed in terms of Section 352 Cr.P.C. or by the sanction of the Government contemplated by Rule 3 of the LHC Rules; that as regards the notifications dated 13.11.2023 and 15.11.2023 issued by the said Ministry, they are also unlawful inasmuch as the prerequisite of an order passed in judicial proceedings by the Special Court in terms of Section 352 Cr.P.C. had not been fulfilled; that the Cabinet, through its decision dated 15.11.2023, has given retrospective effect to its decision for the appellant's trial to be conducted in jail; that this implies that the proceedings and trial conducted in jail between 29.08.2023 and 12.11.2023 were not lawful; that validation of a past illegality requires statutory intervention that supplies the omission or defect with retrospective effect, and upon curing the defect declares the proceedings to have been validly taken; and that the Cabinet's

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decision dated 15.11.2023 fails on the ground that it is an executive sanction and not a statutory intervention and therefore cannot be given retrospective effect to cure the illegality that had occurred by way of unlawfully conducted jail proceedings and trial in violation of the appellant's rights to an open trial. 28. On the other hand, learned Attorney-General for Pakistan raised an objection to the maintainability of the instant appeal on the ground that since an order passed by a Court under Section 352 Cr.P.C. is a revisable order in terms of Section 439 Cr.P.C., the instant appeal is barred under the proviso to Section 3(2) of the 1972 Ordinance. In furtherance of this objection, he submitted that the co-accused, Shah Mahmood Qureshi, had filed criminal revision petition No.155/2023 before this Court against the order dated 09.10.2023 passed by the learned Judge, Special Court on the co-accused's application questioning the conduct of the proceedings against him in jail. He also submitted that although the notification dated 29.08.2023, which was challenged in writ petition No.2656/2023, could be termed as an administrative order against which there was no remedy of an appeal, revision or review but since the said notification had not been issued in any proceedings, therefore the instant intra Court appeal was not maintainable. 29. The learned Attorney-General brought on record several documents including letters dated 12.09.2023, 25.09.2023, 02.10.2023, and 08.11.2023 from the learned Judge, Special Court seeking sanction for the trial against the appellant to be conducted in jail in terms of Section 352 Cr.P.C. and Rule 3 of the LHC Rules. He also brought on record notifications dated 12.09.2023, 25.09.2023, 03.10.2023, 13.10.2023, 13.11.2023, and 15.11.2023 issued by the Ministry of Law and Justice allowing for the proceedings and the trial against the appellant to be conducted in jail. He submitted that by operation of Section 352 Cr.P.C., the proceedings and trial conducted in jail will be deemed to be an open trial in an open Court, but since the room in which the proceedings were being conducted was small and could not accommodate representatives of the media and the appellant's family members, the trial could not be termed as a closed trial; that upon his intervention, the venue in jail where the trial was being conducted had been changed to a much bigger room which can easily accommodate the representatives of the media and the appellant's family members subject to the usual security arrangements; that no prejudice whatsoever was caused to the appellant on account of the proceedings and trial having been conducted thus far in the jail premises; that at best, the manner in which the proceedings and trial against the appellant had been conducted thus far can be termed as an irregularity which is liable to be ignored in terms of Sections 531 and 537 Cr.P.C.; that the framing of the charge and the recording of evidence have been in the appellant's presence and therefore the requirements of Section 352 Cr.P.C. had been complied with; that it was for the appellant's own security that the decisions were taken for the proceedings and the trial to be conducted in jail; that the grounds being agitated by the appellant in the instant appeal ought to be taken in his appeal in the event he is convicted by the learned Judge, Special Court; and that the process culminating in the Ministry of Law and Justice's notifications dated 13.11.2023 and 15.11.2023, based on the Cabinet's decisions dated 12.11.2023 and 15.11.2023, respectively do not suffer from any legal or jurisdictional infirmity. The learned Attorney-General prayed for the appeal to be dismissed. 30. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 24 above and need not be recapitulated. Objection to the maintainability of the intra Court appeal:- 31. We deem it appropriate to decide in the first instance the objection taken by the learned Attorney-General to the maintainability of the instant appeal. The instant appeal was filed under Section 3(2) of the 1972 Ordinance, which reads thus:-

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"An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub- paragraph (i) of paragraph (b) of that clause:- Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any court, tribunal or authority against the original order." 32. The impugned judgment dated 16.10.2023 is a judgment of a single Judge of this Court passed under Article 199(1) of the Constitution, not being a judgment under…

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