Cipher snafu: prosecution fumbled, say legal experts

KARACHI: The prosecution failed to make its case in the cipher proceedings, say legal experts who however warn that this is not the end of the cipher story and the government will likely file an appeal in the Supreme Court.

On Monday, the Islamabad High Court annulled PTI founder Imran Khan and vice-chairman Shah Mahmood Qureshi’s conviction in the ‘cipher case’. In January, a special court had handed both Imran and Qureshi 10-year jail sentences each in this matter.

Speaking to Geo News on Monday, shortly after the verdict, lawyer and PTI leader Barrister Ali Zafar said that congratulations were warranted to the entire nation on the verdict: “I think justice won. Yes, there was a delay because the prosecution used all kinds of delaying tactics but the verdict is per the tenets of justice -- and was expected.”

Zafar said that the trial court case was “unfounded and patently unfair in that Imran and Qureshi’s lawyers were not allowed to appear on their behalf. Imran was not even allowed to give testimony in his defence. Any court that saw this would have given the verdict that the IHC has given.”

Former attorney general Anwar Mansoor Khan told Geo News that he had been saying from day one that the cipher case was “motivated. There was no evidence in it.” According to Khan, “a cipher is basically a coded message which after translation becomes a document. It is a separate matter whether that document is secret or not. To say that [they] lost the cipher hasn’t been proved, there was no backlash to the cipher matter, and no [foreign] relations were harmed.... This is a sensible and correct decision.”

Advocate of the Supreme Court Hafiz Ahsaan Ahmad Khokhar also spoke to Geo News about the cipher verdict. According to him, “The former PM [Imran Khan]’s 342 statement was basically an admission that the special judge in the trial court judgment had also referred to. The defence took advantage of the fact that mostly criminal cases are not remanded.”

For Khokhar, “the lapses in the prosecution’s investigation or cross-examination were used by the defence. The cipher should have been in some way or the other presented to the court, and then [Imran’s] statements could have been tallied with said document. The flaw in the prosecution’s case was this: where was the cipher?

Talking to The News, Supreme Court advocate Basil Nabi Malik explains: “The cipher verdict is definitely a big political win for Imran Khan and the PTI. However, on the legal plane, and without going into the merits at this point (without access to the detailed reasons of the division bench in question), it was always apparent that the proceedings failed to meet the standards of natural justice that are guaranteed under Article 10-A, as well as other settled principles as expounded upon by the courts.”

Why? According to Malik, “A hurried trial, cries of inadequate and incomplete representation, as well as an unnatural need to conclude the same at warp speed, all lent credence to the claims of an unfair conviction.”

The same sentiment is shared by lawyer Abdul Moiz Jaferii, who sums up his opinion of the cipher as: “the only real conclusion this farce could have ever reached.”

What next for the government? Basil Nabi Malik says the government “will certainly seek to challenge this before the Supreme Court, and will be eagerly awaiting the detailed reasons [in the IHC verdict] to better craft the grounds on which they’d seek to challenge it. This is by no means the end of the cipher story.” Jaferii adds that, while the government can appeal this, “what grounds it will find for itself being worthy of appeal are beyond me.”

For Barrister Ali Tahir, “the manner in which the trial was conducted was below par from the very beginning. First was the jail trial, which was set aside by the Islamabad High Court itself. Second was the in-camera trial which was also stayed by the IHC, until the state counsel undertook that the witness statement would be recorded again afresh. Even then there was supersonic speed with which the trial was concluded, and it seemed that the timing itself was quite suspicious -- right before the general elections were to take place. The defence side was closed even though Khan and Qureshi wanted to record their Section 342 statements. This and other factors were enough to conclude that the right to a fair trial enshrined under Article 10-A was vividly violated, and perhaps will be one of the main reasons for the acquittal.”

Tahir adds that “no evidence was brought forward that the accused had communicated any confidential information in the cipher to the public at large or for the benefit of a foreign power.” He feels that all of this was enough to make the case of the prosecution “highly doubtful, and even reasonable doubt in criminal law leads to an acquittal”.

Meanwhile, Barrister Aqeel Malik, the federal government’s spokesperson for legal affairs, spoke to the media after the verdict on Monday and said that courts should be “mindful” of national security while deciding on sensitive matters.

Summing up the IHC’s cipher verdict, Geo’s Awais Yousafzai who has covered the cipher case from the beginning, says that essentially “the prosecution failed to make its case. It was clear from the get-go that this would be the verdict. For example, one of the claims made by the prosecution was that the cipher situation had led to fraught relations between the US and Pakistan. When the court asked for evidence regarding that, none was furnished. Another issue was that when the prosecutor said that the cipher was twisted to suit a political narrative, the court said how could it determine that when it didn’t have the cipher for comparison.. Yousafzai feels that the prosecution ended up contradicting or defeating its own claims through the proceedings.