Chief Justice Muhammad Ameer Bhatti of the Lahore High Court (LCH) on Wednesday constituted a three-member bench to hear former PTI chairman Imran Khan's plea challenging the Election Commission of Pakistan's (ECP) decision to conduct his contempt trial in Adiala jail.
The bench will be headed by Justice Aalia Neelum while Justice Shehram Sarwar and Justice Asjad Javaid Ghural will be its members. The full bench is likely to hear the plea on December 18.
Imran, in his petition, requested the court to set aside the ECP’s impugned order of November 30, 2023 (which ECP announced on December 6, 2023) under which the electoral body decided to conduct his trial in Adiala jail on account of unspecified security reasons.
The founding chairman of PTI also prayed the court to declare the secret and closed nature jail trial as a sheer violation of the fundamental rights of the petitioner, direct the quarters concerned to conduct his trial in an open and public court, stay the proceedings before the said election commission under the Election Act 2017, restrain the respondent chief election commissioner from conducting proceedings in jail, passing any order and taking coercive measures against him.
Imran made respondents the Federation of Pakistan through its secretary ministry of law and justice, ECP through its chief election commissioner, secretary election commission of Pakistan, director general law ECP, secretary ministry of interior, superintendent Adiala jail and additional inspector general of police (operations).
Imran filed this petition through Barrister Sameer Khosa and contended that the impugned order incorrectly holds that the CEC has jurisdiction to order a jail trial. He added that the CEC has relied on the report furnished by superintendent Adiala jail which states that provisions of the Code of Criminal Procedure 1898 do not apply in contempt proceedings because it is a sui generis proceeding.
The petition added that the CEC has failed to appreciate that unless a specific power is granted under a statute authorising it to conduct proceedings in jail, there is no inherent power to conduct proceedings in this manner.
"Given that Respondent Superintendent jail’s report states that the Code of Criminal Procedure 1898 does not apply to the proceedings, there is no authorization in either the Elections Act 2017 for the Contempt of Court Ordinance 2003 to conduct proceedings in jail."
"Thus, the impugned order, in purporting to exercise a power that ECP does not have, is patently without jurisdiction."
The petition also contended that the CEC is not a court that can exercise judicial powers, instead, it is an executive agency and neither is it a court for the purposes of Article 204 of the Constitution, nor is it a court at all for the purposes of Article 175 of the Constitution or under the supervision or control of a high court as mandated by Article 203 of the Constitution. "Thus, even if a power is granted to a court under a statute, the exercise of such power cannot be extended to Respondent CEC which is not a court," said the petition.
"The constitution had the legal framework is not a tabula rasa upon which Respondent CEC and Superintendent Jail can writ whatever they want to. The scheme of the constitution has been meticulously crafted so as to ensure that the fundamental rights of the citizens are protected against excessive interference. The reference to the conduct of other proceedings in jail is not proof of the legality or acceptability of jail trials. In fact, it shows that Respondent CEC and Superintendent Adiala jail have already determined to deny the petitioner his fundamental rights and are using the cover of other proceedings to do the same."
"It is pertinent to mention that the jail trial upon which the Respondents relied for reference has already been set aside and vitiated by Islamabad High Court through its short order."
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