Toshakhana and Al-Qadir Trust Case: Jail trial upheld by IHC

ISLAMABAD: The Islamabad High Court (IHC), led by Chief Justice Amir Farooq and Justice Tariq Mehmood Jahangiri, issued a 21-page judgment rejecting applications against the Toshakhana and Al-Qadir Trust case, affirming the continuation of the trial within the confines of the jail.

The court based its decision on the 1931 judgment of the Bombay High Court, validating the powers of the Executive in determining the location of the Sessions Court, as stipulated by the National Accountability Bureau (NAB) Act. The trial court, aligning with this precedent, ordered the presence of media and the public during the jail hearing.

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Objections raised by the petitioner regarding the appointment of the accountability court judge were dismissed by the court. According to the NAB Act, the Executive and the Islamabad High Court (IHC) hold the authority to decide the location of the Sessions Court. In the absence of an executive order, the concerned court can issue an order for the session elsewhere. However, if there is an executive order, the hearing is mandated to take place at the location specified by the concerned court.

The judgment drew parallels with the Cipher case, highlighting the absence of a clear law pertaining to the determination of court location in the Official Secrets Act. In such cases, the court declared that Section 352 of the Code of Criminal Procedure (CrPC). would apply, guided by High Court Rules and Orders.

Addressing concerns about the petitioner’s safety, the judgment clarified that the prison trial was initiated due to perceived danger rather than malice. The court acknowledged the correctness of the counsel’s contention that the jail hearing notification was issued before filing the reference.

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The NAB prosecutor argued that bail and remand proceedings were ongoing at the time of the notification, asserting that proceedings could not be set aside based on an executive order or a trial court’s directive. The court, citing Section 537 of the CrPC, delineated which proceedings are voidable and which are not, emphasizing the imperative to remedy failures in delivering justice, as stipulated in the CrPC.