MoFA should have been complainant in cipher case, IHC told

ISLAMABAD: The Pakistan Tehreek-e-Insaf founder’s counsel told the Islamabad High Court (IHC) that the cipher was a Foreign Office document that was said to have been misused and twisted, but the then interior secretary Yousuf Naseem Khokhar became the complainant in the case, which should have been the Ministry of Foreign Affairs (MOFA).

He said the FIR was registered after a delay of 17 months, and according to the FIR, the then principal secretary to prime minister Azam Khan was the accused, but he was made a witness in the charge sheet, and the Federal Investigation Agency (FIA) changed the status of its own accused.

Chief Justice of the IHC Justice Aamer Farooq said that judicial decisions exist that a statement made before a magistrate is weak testimony.

When Justice Farooq and Justice Miangul Hassan Aurangzeb started the cipher case appeal hearing, FIA special prosecutor Hamid Ali Shah appeared before them and said that the paper books of the case are not ready.

He said the records also have to be reviewed, and sought time for preparing the case. He added that once the hearing of the case starts, no unnecessary adjournment would be sought.

Justice Aurangzeb said that at present, the appellant’s counsel (Barrister Salman Safdar) is arguing the matter, and that the same would not be concluded within a day.

Barrister Safdar explained the background of the case, read out the text of the FIR and said that there are two aspects of the appeal: one is related to the merits of the case and the other is how the case was handled.

He said Khan went missing last year, a petition was filed in June, and an FIR was registered. The court asked if this information was part of the case. The counsel said that this aspect is not part of the record as he was not the counsel then, adding that a government-appointed defence counsel had cross-examined the witness who did not ask him about the alleged kidnapping.

Justice Aurangzeb asked the counsel if the state counsel did not ask the witness despite knowing such facts. Justice Farooq said that if the defence counsel is appointed at state expenses, he has to complete his responsibility.

Safdar said the defence counsel completed the cross-examination of 21 witnesses in 48 hours. He said the courts said that if there is very strong evidence and clear evidence, an arrest should be made.

Justice Farooq said that there are certain requirements for making an arrest, and that this court has also held the same in its judgments. The court said that unfortunately, the police mindset is that a person can be arrested if an FIR has been registered.

The court said that it is common practice in the civilised world that any suspect is first called for an inquiry and an investigation, and if a person cooperates with the investigation, there is no need to arrest them. However, the situation is different if something needs to be recovered.

The counsel said that allegations have been levelled in the FIR in the same traditional manner. Justice Farooq said that there would be no difference between an FIR from 1960 and one filed today.

He said Kalashnikov has replaced the axe but the mindset of the clerk is still the same. Be it the National Accountability Bureau, the police or the FIA, our mindset has not changed, he added.

Safdar said he would take one and a half or two hours to complete the arguments. Justice Aurangzeb said that this is not an ordinary FIR; this is the first case of its kind.

Justice Farooq asked the counsel to not take the case so lightly and come with full preparation in future, saying that this is a special law, so the counsel needs to assist the court and respond to the court’s queries.

The hearing of the case was adjourned until March 11. At the end of the hearing, Justice Aurangzeb asked the FIA prosecutor, “Do you oppose the appeals against the sentence?” Prosecutor Shah replied, “Yes, we will.”