Top court approves Imran Khan, Shah Mahmood post-arrest bail in cipher case

ISLAMABAD: The Supreme Court on Friday approved the post-arrest bail of former prime minister Imran Khan and Pakistan Tehreek-e-Insaf (PTI) Vice-Chairman Shah Mahmood Qureshi in the cipher case. 

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

The former prime minister and the ex-foreign minister were directed to submit a surety bond of Rs1 million each in the cipher case related to the misuse of diplomatic cable for political purposes.

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 today, 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, 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 requested the court to wait for the IHC's decision today against the in-camera trial in the cipher case.

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.

The hearing

Presenting his argument against the bail petitions, the Federal Investigation Agency (FIA) prosecutor 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 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 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 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.

‘Elections strong ground for bail’

Presenting his arguments, Qureshi’s counsel Ali Bukhari said that the PTI vice chairman is not accused of keeping the cipher nor sharing it with anyone.

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.

‘Cipher case has become zero’

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.”

What is ciphergate?

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.