ISLAMABAD: Incarcerated human rights lawyer Imaan Mazari and her husband, Hadi Ali Chattha, on Monday approached the Supreme Court to challenge the Islamabad High Court’s (IHC) Oct 19 order refusing to stay the trial before an anti-terrorism court (ATC) in the security breach case.
The case pertains to the alleged disruption of the security route of an international cricket team and incitement to public unrest. The couple, accused of removing barriers from the route, was indicted on October 7.
On Oct 19, the IHC took up appeals filed by Imaan and Hadi against the Oct 10 ATC order that rejected their petitions challenging the framing of charges and the inclusion of terrorism-related provisions. While issuing notices, the IHC had said it would decide how to proceed once the parties’ responses were received.
Subsequently, the couple, through senior counsel Faisal Siddiqui, filed separate near-identical petitions before the SC on Monday, challenging the IHC’s Oct 19 order.
The plea argued that the trial court proceeded with unprecedented haste by recording the examination-in-chief of six prosecution witnesses on Oct 10 and 14, and accepting the prosecution’s request to shift the trial to jail.
The decision to conduct the trial in jail had also been challenged before the IHC, with the petition pointing out that the trial court had appointed state counsel.
The petitions alleged that the ongoing trial was nothing but persecution aimed at subverting the SC’s order suspending the petitioners’ 17-year sentences in the controversial social media post case and preventing their eventual release in an allegedly frivolous and mala fide case that had mysteriously resurfaced to prevent their release.
Imaan’s petition argued that the IHC had “erroneously refused to exercise its discretion to grant ad interim relief to stay the criminal trial, despite multiple factual and legal reasons warranting such relief and repeated requests”.
It said it was settled law that ad interim relief could not be denied in the presence of a prima facie case and where the balance of convenience favoured the petitioner, as she would otherwise suffer irreparable loss.
The petition pleaded that Imaan had a clear prima facie case because recording evidence in their absence violated Section 353 (evidence to be taken in presence of accused) of the Code of Criminal Procedure (CrPC), as well as their due process and fair trial rights guaranteed under the law.
It further argued that the balance of convenience favoured the petitioner because delaying the trial for some time would not prejudice the prosecution.
The plea claimed that the petitioner would suffer irreparable loss given the alleged gross violations of due process and fair trial principles in the proceedings, adding that it was apparent that the trial was leading to her criminal conviction.
The petitioner’s liberty was at stake because of the denial of ad interim relief, the petition contended, adding that the IHC’s order was without jurisdiction, illegal and liable to be set aside.
It further pointed out that the trial court had never dispensed with the petitioner’s personal attendance during the recording of evidence and that no proceedings under Section 540-A (power to summon material witness or examine person present) of the CrPC had been initiated.
The trial court’s order of Oct 10 recorded that counsel had left the rostrum and the accused had left the video link. The Oct 14 order also noted that the accused had again moved away from the camera while their counsel had left the rostrum during the examination-in-chief of witnesses. Despite this, the court proceeded to record the examination-in-chief of six prosecution witnesses on the two dates.
The petitions emphasised that the absence of the petitioners and their counsel was forced as a protest and had been recorded as such, but did not amount to a waiver of the right to be present during the recording of evidence.
IHC hears plea against jail trial, appointment of state counsel
Meanwhile, the IHC heard arguments on a petition filed by Imaan and Hadi challenging their trial at Adiala jail and the appointment of a state counsel.
A division bench comprising Justice Raja Inaam Ameen Minhas and Justice Shahrukh Arjumand continued the proceedings, with advocates Riasat Ali Azad and Zainab Janjua appearing for the petitioners.
During the proceedings, Advocate Azad noted that the decision to conduct the trial inside the jail had been challenged before the IHC. He contended that the accused should have been heard before such an arrangement was approved.
Justice Minhas questioned the legal basis of the challenge, asking who had the authority to decide the venue of a trial and whether an accused could dictate where the proceedings should take place.
In response, Azad said the petitioners were being brought before what he described as a “jail court”, effectively a cage, where access to the proceedings was restricted.
He argued that the summary for conducting the jail trial had been initiated by an Islamabad superintendent of police and subsequently approved by the chief commissioner. According to him, the police officer lacked the authority to initiate such a summary, which he maintained fell within the federal government’s domain.
The judge questioned whether a summary concerning a jail trial would have to be placed before the cabinet and also asked about the legal concept of an open court.
Azad said he had not been heard before the decision was taken, despite the need to hear the defence. He pointed out that journalists and members of the public were not permitted to attend the proceedings inside the jail.
He further submitted that the defence had requested the trial judge to pass a formal judicial order regarding the arrangement, but the judge declined, telling the lawyers to challenge the matter before the high court.
The lawyer also objected to the appointment of a state counsel during the jail trial.
Justice Minhas observed that the defence lawyers’ vakalatnamas (powers of attorney authorising legal representation) were still on the court record.
Advocate Janjua clarified that she had initially represented the accused but subsequently withdrew her vakalatnama, explaining that travelling to Adiala jail every day was incompatible with managing her legal practice.
Azad added that travelling to and from the jail took around two hours each way.
When the judge again asked whether his vakalatnama remained on record, Azad said the defence had effectively been sidelined. He alleged that when he sought a single adjournment, a state counsel was appointed and the cross-examination of prosecution witnesses was conducted in his absence.
Questioning the urgency of the proceedings, Azad said the first information report (FIR) had remained concealed for two years and that the accused had been arrested in the case immediately after securing bail from the SC.
He further contended that although the original charges were bailable, a terrorism-related charge had subsequently been added.
The counsel requested the IHC to restrain the trial court from delivering its final verdict until the petition was decided.
Justice Minhas observed that the accused could also be acquitted, asking the lawyer why he was seeking such an order.
State counsel Ali Azad reiterated the request that the trial court be restrained from announcing its final verdict.
After hearing the arguments, Justice Minhas remarked that the court would examine the matter.
The bench did not announce a final decision on the request during the proceedings.