The Supreme Court of Pakistan has approved the bail of former PTI chairman Imran Khan and Vice Chairman Shah Mahmood Qureshi in the cipher case.
The apex court accepted the PTI leaders' petition against the high court verdict in the case. They have been granted bail in exchange for bail bonds of Rs1 million each.
A three-member bench of the Supreme Court, headed by Acting Chief Justice of Pakistan Sardar Tariq Masood and comprising Justice Mansoor Ali Shah and Justice Athar Minallah, heard the petitions of Imran Khan and Shah Mahmood against the Islamabad High Court verdict in the cipher case.
The hearing
Justice Minallah remarked that the former prime minister is innocent, as no crime could be proved against him.
At the start of the hearing, the Supreme Court accepted PTI lawyer Hamid Khan's request for some time to extend arguments on a petition against the indictment, while the Federal Investigation Agency (FIA) prosecutor adopted the stance that a notice had not been issued on Shah Mahmood Qureshi's bail application.
The acting CJP remarked that the application against the old charge sheet has become ineffective; if there is any objection to the new charge sheet, it should be challenged in the high court.
The petitioner's lawyer, Hamid Khan, pleaded that it would be appropriate to wait for the high court's decision today.
The acting CJP remarked that everyone had a right to a speedy trial, asking why the lawyer was in a hurry.
Hamid Khan said the plea against an in-camera trial was fixed in the high court today, while another was against the indictment.
The chief judge said that the challenge to the indictment has been disposed of by the high court.
Justice Shah said the December 13 indictment in the cipher case had not been challenged.
The CJP said even if the high court acquitted, nothing could be done on that plea, adding that the plea against the indictment had become ineffective.
Later, notices were issued to the federal government and the FIA for today on an application of Shah Mahmood Qureshi.
Imran Khan’s lawyer Salman Safdar argued for bail, saying an FIR in the cipher case was registered by Interior Secretary Yousuf Naseem Khokhar with a delay of 17 months. First, an attempt to make a case of foreign funding against the client failed, he said, adding that when his sentence was suspended in the Toshakhana case, he was arrested in the cipher case the same day.
The Foreign Office can only brief a prime minister on a cipher, Justice Minallah remarked, asking why the FO handed over a copy of the cipher to the premier.
The lawyer said that the FO couldn’t do so, and real facts were not even mentioned in the FIR.
Lawyer Salman Safdar said that former principal secretary to the PM Azam Khan is accused of misstating minutes of the meeting and its contents. Despite being held responsible in the FIR, Azam Khan and Asad Umar were not arrested.
Justice Minallah asked how the FIA found out there was a meeting at Bani Gala.
The lawyer said the cipher came from the Foreign Ministry and according to the prosecution, the security system was put at risk. The scope of the Official Secrets Act was extended and applied to the former prime minister, he added, arguing that the law pertained to the army that is linked to national defence.
A cipher case was made for the first time in the country’s history, he maintained, adding that in the past it was applied to army personnel for leaking sensitive information to enemy countries.
The secret codes of a cipher were never with the former prime minister, Safdar argued.
The Ministry of Foreign Affairs informs the government about a cipher to help shape the foreign policy, Justice Minallah remarked.
The purpose of the Official Secrets Act is to prevent sensitive information from being leaked, Justice Shah said, adding that diplomatic information is also sensitive, but its nature is different.
Safdar said Pakistan’s former ambassador to the US, Asad Majeed, sent the cipher as the most sensitive document.
“You agree that sensitive information cannot be shared,” Justice Shah asked the lawyer, to which he replied that it has to be seen whether sensitive information has been shared or not.
The lawyer further argued that the provisions of death sentence or life imprisonment could not be imposed on the former prime minister.
The acting CJP remarked that the cipher was not shared with anyone, but it was definitely aired in the media.
Safdar said Azam Khan as the principal secretary received the cipher from the Foreign Ministry. The meeting regarding the cipher is alleged to have taken place on the March 28, while according to the FIR, the rally in which the cipher was said to have been waved took place on the 27th, he added.
Justice Minallah said the original cipher was with the Foreign Ministry, and if it was leaked then it was their crime. A cipher cannot be discussed in public, he added.
Shah Mahmood said in his speech that he told the prime minister about the alleged conspiracy as bound by his oath, the lawyer remarked. Even after this statement, Qureshi was in jail for 125 days.
Safdar then read out the speeches of Imran Khan and Qureshi during the public gathering of the PTI.
Justice Minallah said ambassadors all over the world sent ciphers to their countries, but they were never discussed in public.
It was not mentioned in the public rally who wrote the cipher, the lawyer answered.
The foreign minister was clever, he pushed the prime minister forward, remarked the acting CJP. The FM told Khan he was not concerned about the PM’s actions.
Justice Minallah remarked that the elections were near and the former PTI chairman was a political leader. He then asked if there was any danger to society if the two PTI leaders got out of jail.
The Foreign Office cannot send ciphers to anyone, Justice Minallah stressed, adding that if that happened, then the mistake was made by the Foreign Office.
“Can the prime minister's secretary also read a copy of the cipher?” Justice Shah asked. The court then directed lawyer Salman Safdar to read Azam Khan's statement.
The lawyer said Imran Khan had said in the rally that he had the letter as proof of the conspiracy. Nowhere in the meeting did he say what was in the cipher and where it came from.
Justice Minallah asked what the danger to society will be by keeping the former prime minister in jail.
The lawyer said Azam Khan's family had filed a case of his disappearance, as he had been missing for two months, adding that this was a case of “kidnapping for a statement”.
“Did the investigating officer probe into the disappearance of Azam Khan?” asked Justice Minallah.
Azam Khan gave his statement under pressure, and the investigation officer did not conduct any investigation, Salman Safdar told the court, adding that as soon as Azam Khan returned, he gave a statement against the former prime minister.
The lawyer questioned why, if nothing wrong happened, a demarche was issued on the cipher.
PTI lawyer Niazullah Niazi
After a break, PTI lawyer Niazullah Niazi told the court that their candidates were being stopped from submitting their nomination papers. He said they had informed the election commission about it and requested to hear their complaints soon.
The acting CJP asked what would happen if their candidate was declared a proclaimed offender.
Qureshi’s lawyer told the court that his client was neither accused of keeping the cipher nor sharing it. He was only accused of making a speech that has already been analysed by the court.
Qureshi remained in remand for 10 days, yet nothing could be obtained from him.
Justice Minallah asked if the former FM was contesting elections. His lawyer said he would be submitting his nomination papers today.
FIA prosecutor
FIA prosecutor Rizwan Abbasi said there was only one copy of the cipher that was with the Foreign Office. Justice Minallah asked what had been leaked if the cipher was with the Foreign Office. He added that there were rules to handle sensitive documents.
The prosecutor further said the rules were classified that was why they weren’t present in the court library. Justice Shah asked how the rules could be classified.
Abbasi replied that it’s a directive that is only present with the government.
Justice Minallah remarked that after being decoded, a message cannot remain a cipher, as the cipher basically meant a coded document.
When a cipher is decoded, it doesn’t remain a cipher, the acting CJP remarked.
Justice Shah asked for laws related to the cipher.
“Did the foreign secretary tell the prime minister the document could not be made public? Justice Minallah, asking if this was ever mentioned in writing.
The investigation officer mentioned this in the meeting, the prosecutor said.
Justice Minallah remarked that when the government completed its term, people became approvers.
Justice Shah asked if the investigation officer has read the directive related to sensitive documents.
The acting chief justice asked if Azam Khan’s disappearance was investigated, asking why he remained silent for a month. “Did Azam Khan go to the northern areas?” asked Justice Minallah.
According to Azam Khan, he was under pressure from the PTI, Rizwan Abbasi told the court.
On being asked that on the basis of which document former prime minister Shehbaz Sharif conducted a meeting of the National Security Committee.
Abbasi said the decoded copy of the cipher was presented in the committee meeting.
The death penalty sections in the cipher case were based on assumptions so far, Justice Shah remarked, adding that none of the three sections of the penalty applied to this case.
Justice Masood remarked that the high court had decided the case in its verdict about rejecting the bail.
Justice Shah asked how a foreign power can benefit on the cipher issue. Justice Minallah said that according to the document the prosecutor was showing, there was a loss to the foreign powers.
“Does the government want to repeat the conditions of 1970 and 1977?” Justice Minallah asked, questioning if the caretaker government directed the prosecutor to oppose the PTI leaders’ bail. He further asked if the same happened to political leaders in every era.
“Right now the question is about general elections,” Justice Minallah stated, adding that it was not about the former PTI chairman, but the masses’ rights.
“The court is the protector of fundamental rights,” Justice Minallah stated, adding that the former prime minister has not been found guilty, and was innocent.
Justice Shah asked if it was investigated how a third country benefited from the deterioration of Pakistan-US relations. There was no mention of the relations spoiling in the FIR, he added.
Justice Minallah asked if the country doesn’t become a laughing stock on the removal of a prime minister before his term expires. “Will the Official Secrets Act also be applied on the premature removal of prime ministers?” he asked.
Justice Shah said if Pakistan becomes a laughing stock in India, it could be about anything. He added that whatever they were doing on a daily basis was also making a joke out of the country.
“Do you want to repeat the incidents of 2018?” Justice Minallah asked, commenting that the former prime minister was not convicted yet, and only accused.
