SC approves Imran Khan, Shah Mahmood Qureshi’s post arrest bail in cipher case against surety bonds of Rs1 million each

ISLAMABAD, Dec 22 (SABAH): The Supreme Court of Pakistan on Friday approved former Pakistan Tehreek-e-Insaf (PTI) chairman and former prime minister Imran Khan and party’s Vice-Chairman Shah Mahmood Qureshi’s post-arrest bail in the cipher case against surety bonds of Rs1 million each according to the satisfaction of the trial court. The court said that the reasons regarding granting bail to Imran Khan and Shah Mahmood Qureshi will be recorded later on. Acting Chief Justice Sardar Tariq Masood remarked that we were only hearing the bail application so we have decided it, adding that the trial of the cipher will continue and Islamabad High Court directions in this regard are protected. Justice Sardar Tariq Masood Shah the bail could be granted on the allegations having less than 10 years imprisonment sentence. He said that the copies which were prepared after decoding is not cipher, adding that cipher was on aired and was communicated with the masses. Justice Syed Mansoor Ali Shah has remarked that this is case of further inquiry, adding that how this will be used against Pakistan by an enemy country of Pakistan. Justice Athar Minallah remarked that so far Imran Khan has not been convicted in cipher case so we will consider him innocent. He inquired from FIA prosecutor whether the interim government has asked him to oppose the bail application, adding that whether this is level playing field. He said that when the governments are ended the people become approvers.

A three-member bench, headed by Acting Chief Justice Sardar Tariq Masood and comprising Justice Syed Mansoor Ali Shah and Justice Athar Minallah, conducted the hearing.

On December 13, the PTI founder and vice-chairman were indicted in the cipher case again by the special court established under the Official Secrets Act 2023 after the Islamabad High Court (IHC) declared their jail trial null and void.

Both politicians have pleaded not guilty to their involvement in the offence related to the alleged misuse of diplomatic cable for political purposes.

During the court proceedings on Friday, the top court also heard the petition against Khan and Qureshi’s October 23 indictment.

At the outset of the hearing, Justice Masood remarked that the indictment that was challenged was already nullified by the IHC on November 21.

As a result, Imran Khan and Qureshi’s Oct 23 indictments in the case also stood null and void, and the trial was conducted again.

Justice Masood said that the fresh indictment will not be affected by the previous proceedings that were declared invalid by the IHC.

At this, the former PM’s counsel Hamid Khan argued that the trial was taking place on the previous charge sheet.

Justice Masood noted that the petition against the old charge sheet has become infructuous. “If you have an objection to the fresh indictment then challenge it in the high court,” the judge told the lawyer.

To this, Hamid Khan requested the court to wait for the IHC’s decision today against the in-camera trial in the cipher case.

Imran Khan’s other counsel Barrister Salman Safdar said that Hamid had made amendments to his petitions, requesting the court to take it as a fresh one.

The court then adjourned the hearing on the plea against indictment and took up the bail petitions.

Presenting his argument against the bail petitions, the Federal Investigation Agency (FIA) Prosecutor Raja Rizwan Abbasi said that notice hasn’t been issued on Qureshi’s bail plea.

After this, the court issued notice to the federation on Qureshi’s bail petition.

Justice Syed Mansoor Ali Shah said that the December 13 indictment in the cipher case has not been challenged.

“The FIA remained silent in the case for seven months and then arrested the PTI leader as soon as he [Imran Khan] was granted bail in the Toshakhana case,” the counsel told the bench.

Barrister Salman Safdar said, as per the allegations of the prosecution, that FIA had started an inquiry following the federal government’s instructions after the audio leak, alleging that during the meeting on March 28, 2022, in Bani Gala, a conspiracy was made to misuse the cipher.

He added that the former premier was also accused by the FIA of keeping the cipher’s copy and not returning it. “The FIR has four names but the FIA is only investigating two people. Asad Umar and Mohammad Azam Khan were also to be investigated,” he said.

Justice Minallah asked how did FIA had the information about the Bani Gala meeting.

“The FIA can answer this question as the prosecutor has not revealed the sources,” responded Barrister Safdar, adding that it was claimed that the cipher was received from Foreign Office, however, no complaint has been made from there.

Barrister Safdar said that the former PTI chairman was being targeted for political purposes.

Safdar argued that the provisions of the death sentence or life imprisonment could not be imposed against the former premier.

Justice Masood said that the cipher was not shared with anyone but it has been aired.

Barrister Safdar said that the meeting in which the cipher conspiracy was allegedly planned took place on March 28, 2022, while the challan alleges that Imran Khan brandished the cipher on March 27, 2022.

“The original cipher is with the Foreign Office and if it was leaked then it is the Foreign Office’s crime,” remarked Justice Minallah, adding that the cipher cannot be discussed in public.

The PTI counsel then read Qureshi’s speech during the rally on March 27, 2022, at the parade ground.

At this, Justice Masood said the then-foreign minister was sensible as he “knew what to say and what not to say” in the public and he “trapped” Khan.

Barrister Safdar told the court that the PTI’s founder did not share anything with the public.

“On what basis does the prosecution think that it is necessary to keep the accused in custody,” questioned Justice Minallah.

Safdar said that no political leader has 40 cases filed against him, requesting the court that the manner in which these cases are being registered should stop.

Presenting his arguments, Imran Khan’s counsel Salman Safdar contended that the special court had recorded the statements of 13 witnesses “in haste”, to which Justice Masood said a speedy trial was the right of the accused. “Why do you want the trial to not be completed?” the judge asked.

Barrister Safdar said that the IHC was set to issue an order on in-camera proceedings in the cipher case and requested that the PTI petition challenging indictment in the case be heard at another time. However, Justice Masood remarked that the fresh indictment would be not impacted.

Safdar contended that the interior ministry’s secretary was the complainant in the cipher case. He recalled that the Lahore High Court (LHC) had placed a seven-month stay on summons in the case.

“For seven months the FIA was silent but arrested Imran immediately after the suspension of the sentence in the Toshakhana case,” the lawyer highlighted, adding that 40 attempts were made to arrest Imran in Islamabad. “And all the other cases registered against Imran are separate,” he said.

For his part, the deputy attorney general said the FIA had initiated an investigation in the cipher case on orders of the government after the audio leak, in which Imran could purportedly be heard talking about the cipher.

Elaborating on the charges, Safdar said it was alleged that a conspiracy to misuse the cipher was hatched during a PTI meeting at Imran’s Bani Gala residence on March 28, 2022. “The FIR also accused Imran of never returning a copy of the cipher,” he said.

The lawyer added that another charge in the case was putting the entire security of the cipher system at risk. “The role of Asad Umar and Azam Khan was to be decided during the inquiry. Four suspects were mentioned in the FIR but the trial was only held of two,” he argued.

Mohammad Azam Khan, the principal secretary to former prime minister Imran Khan during the PTI tenure, was accused of miscommunicating the contents of the cipher and the minutes of the meeting, Safar added. He contended that despite being nominated in the case, neither Asad Umar nor Azam Khan was arrested.

Here, Justice Minallah asked how the FIA found out that a meeting was held at Bani Gala. “This can be told only by the agency,” the PTI counsel replied, claiming that his client was being “politically victimised”.

He further stated that PML-N leader Rana Sanaullah Khan, as interior minister at the time, had instructed the FIA to investigate the matter. “The domain of the Official Secrets Act was broadened and the former premier was charged under it,” Safar said.

He argued that the aforementioned law was pertaining to the armed forces and national defence. “A cipher case was registered for the first time in the history of the country. In the past, the law was used to punish ex-military officers for leaking sensitive information to enemy countries,” the lawyer said.

Here, Justice Minallah noted that the cipher was sent in codes. “The foreign ministry never gives the coded cipher to the prime minister,” he remarked, explaining that the ministry provided the cipher’s translation or briefing to the PM.

At one point, Justice Shah asked: “What does the prosecution say? Who was the cipher shared with?”

Here, Safdar said the cipher was never shared with anyone. “The cipher was sent to the SC only after declassification,” he maintained, adding that the codes of the secret document were never available with the former premier.

“The foreign ministry updates the premier on cipher for assistance in the formation of foreign policies,” Justice Minallah said. Meanwhile, Justice Shah said the purpose of the Official Secrets Act was to prevent secret information from being leaked.

“Diplomatic information is also sensitive but its nature is different,” Justice Shah added.

For his part, the PTI counsel said Pakistan’s former ambassador to the United States Asad Majeed Khan had sent the cipher as a very sensitive document.

“You agree that sensitive matters cannot be shared,” Justice Shah noted here to which Safar said it had to be decided if sensitive information was even shared in the first place.

The lawyer further contended that the sections of death sentence and life imprisonment could not be charged on Imran.

At that, Justice Masood remarked that although the cipher was not shared it was televised.

The PTI counsel said Azam Khan has received the cipher as principal secretary from the foreign ministry. He highlighted that case alleged that contents of the cipher were shared during a PTI meeting on March 28 but the challan claims that the document was waved during a party rally on March 27.

“The real cipher is at the Foreign Office and if that has gone out then it is the foreign ministry’s fault,” Justice Minallah noted, adding that the cipher could not be discussed in public.

Meanwhile, Safar recalled that Qureshi had said in a speech that he informed the premier about the “conspiracy as I am bound by the oath”. “Qureshi has been in jail for 125 days just because of this statement,” the lawyer said.

He further contended that during the March 27 rally, Imran had only mentioned the cipher but never revealed its contents. “On one hand they say the cipher was made public and on the other, they say in-camera trial be held,” the PTI lawyer lamented.

Here, Justice Minallah asked: “Elections are coming and the PTI founder is a big political leader. How will keeping him in jail endanger the society?”

On the other hand, Safdar claimed that Azam Khan’s statement on the cipher — wherein it was claimed that the narrative behind the cipher was fabricated — was forced. He further recalled that Azam’s family had alleged that he was abducted prior to the alleged confession, which had surfaced on social media on July 19.

“Did the investigation officer look into this?” Justice Minallah asked. He also noted that Azam Khan’s statement mentioned that the former premier did not have the cipher.

At one point, Justice Masood asked if the foreign secretary was the suspect or the witness. “The then foreign secretary is a witness,” the deputy attorney general replied.

Safdar contended that the foreign ministry had not sought the cipher copy from Imran for 17 months. He also read out loud in court the text of Imran’s speech on March 27 last year. However, the court instructed him to restrict the arguments to the plea.

“Ciphers are sent across the world but they are never mentioned in public,” Justice Minallah said. Justice Masood remarked that Qureshi was “smart” as he didn’t mention the cipher himself and instead gave it to Imran.

Subsequently, Qureshi’s counsel Syed Muhammad Ali Bukhari presented his arguments. He contended that Qureshi was kept in physical remand for 10 days but nothing was found.

Here, Justice Minallah asked if the PTI vice chairman was participating in the upcoming polls to which his lawyer said Qureshi would submit his nomination papers today. “He wants bail so that he can contest for elections,” Bukhari argued.

Later, FIA Prosecutor Raja Rizwan Ahmed Abbasi came to the rostrum. Justice Minallah asked how the cipher was made public being with the foreign ministry.

The prosecutor said there were rules to handle sensitive documents. “Where is the rule book?” Justice Minallah asked, to which Abbasi said they were private and hence might not be available in the SC library.

“How can rules be private,” the judge said. In response, the FIA prosecutor said some instructions were only provided to the government.

Justice Minallah also noted that the way the trial was being conducted showed that the prosecution was violating the rules. “A decoded message is not the cipher,” he emphasised, adding that a cipher literally meant a coded document.

“Did the foreign secretary tell the PM that this document cannot be made public?” Justice Minallah further asked. “He did mention it in the meeting,” Rizwan responded.

“Why didn’t the secretary provide this information in a written document,” the judge asked.

Here, Justice Shah inquired about the law linked to the cipher. “What is written in the investigation report about returning the cipher? When can it be returned? Neither the prosecution is understanding [things] nor the investigation … what came forth in the inquiry?” he asked.

Justice Shah also asked how foreign powers benefitted in the entire matter, noting that none of the statements recorded by the witnesses showed the same.

Justice Minallah asked if the government wanted the conditions of 1970 and 1977 and inquired if instruction had been given by the caretakers on opposing the bail.

“Why does this happen with political leaders every time,” Justice Minallah wondered, adding that currently, the rights of the public were in question not the former premier. “This court is the protector of fundamental rights. The former prime minister’s crime is not proven, he is innocent,” the judge added.

At one point, Justice Masood expressed surprise at the IHC verdict in the cipher case and noted that a death sentence was not applicable in the current case. He also asked why Shehbaz Sharif had not mentioned that the cipher was missing during the National Security Council meeting.

Justice Minallah asked Bukhari if Qureshi was contesting the polls, to which, the counsel replied that his client would submit the nomination papers today.

“Participating in elections is a strong ground for bail,” said Justice Minallah. He questioned how the cipher leaked when it only had one original copy which was with the foreign office.

“There are rules for handling sensitive documents,” said FIA Prosecutor Rizwan Abbasi.

Justice Masood asked if the statements of the witnesses were taken on oath. To this, the investigating officer said that the testimony was taken on oath.

“According to the record, the statement of the witness Azam Khan was not taken on oath,” said Justice Masood.

Later, Justice Shah said that the provision of the death penalty in the cipher case was based on assumptions.

Justice Minallah remarked that general elections are set to take place on February 8 and the person who represents a larger party is in jail.

“Did the caretaker government instruct you to oppose bail? Why does this happen to political leaders in every era?” questioned Justice Minallah.

He remarked that at this time, the question is about general elections and it is a matter of the rights of citizens. “The former prime minister [Imran Khan] has not been found guilty, he is innocent,” he added.

Speaking to the media following the SC verdict, PTI lawyer Barrister Salman Safdar said the cipher case has reached its conclusion.

He said the federal government failed to prove that the cipher case is a serious offence that carries a maximum penalty of death sentence or life imprisonment.

Barrister Safdar said when nothing was found in other cases against the PTI leaders then the government used the cipher case against them for “political victimisation”.

“Supreme Court has made some observations [regarding the cipher case] which will make it difficult for the government to defend [the case] in the trial court,” he added.

“The cipher case has become zero, nothing is left in this now.”

The controversy first emerged on March 27, 2022, when Khan — less than a month before his ouster in April 2022 — while addressing a public rally waved a letter before the crowd, claiming that it was a cipher from a foreign nation that had conspired with his political rivals to have PTI government overthrown.

He did not reveal the contents of the letter nor did he mention the name of the nation it came from. But a few days later, he accused the United States of conspiring against him and alleged that Assistant Secretary of State for South and Central Asia Affairs Donald Lu had sought his removal.

The cipher was about former Pakistan ambassador to the US Majeed’s meeting with Lu.

The former prime minister, claiming that he was reading contents from the cipher, said that “all will be forgiven for Pakistan if Imran Khan is removed from power”.

Then on March 31, the National Security Committee (NSC) took up the matter and decided to issue a “strong demarche” to the US for its “blatant interference in the internal affairs of Pakistan”.

Later, after his removal, then-prime minister Shehbaz Sharif convened a meeting of the NSC, which came to the conclusion that it had found no evidence of a foreign conspiracy in the cable.

In the two audio leaks that took the internet by storm and shocked the public after these events, the former prime minister, then-federal minister Asad Umar, and then-principle secretary Azam could allegedly be heard discussing the US cipher and how to use it to their advantage.

On September 30, the federal cabinet took notice of the matter and constituted a committee to probe the contents of the audio leaks.

In October, the cabinet gave the green signal to initiate action against the former prime minister and handed over the case to the FIA.

Once FIA was given the task to probe the matter, it summoned Khan, Umar, and other leaders of the party, but the PTI chief challenged the summons and secured a stay order from the court.

The Lahore High Court (LHC), in July this year, recalled the stay order against the call-up notice to Khan by the FIA.