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ISLAMABAD: The Islamabad High Court (IHC), Friday, turned down Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan’s petitions seeking post-arrest bail, as well as, quashment of the cipher case.

A single bench of Chief Justice Aamer Farooq announced the verdict which he earlier reserved after hearing the arguments and rejected Imran’s both petitions seeking post-arrest bail and the quashment of the case.

The IHC chief justice noted in his written order that the petitions for quashing of FIR, as well as, bail application are without merit and are accordingly dismissed. He; however, clarified that any observations, made in the judgment, are tentative in nature and shall not prejudice the trial.

He observed, “In the referred backdrop, reading the contents of section 5 in juxtaposition with the allegations levelled in the case against the petitioner shows that prima facie section 5 is attracted in the facts and circumstances of instant case inasmuch as it is the case of the prosecution that cipher, in its decoded form, was transmitted by Ministry of Foreign Affairs to the Prime Minister’s Secretariat and was duly received by the prime minister (the petitioner) and he apparently lost the said document and/ or twisted contents of the same for his political benefits and also made the contents thereof public.”

Justice Aamer added, he (Imran) was not authorised to do so as per section 5, it is reiterated that petitioner received the contents/ information contained in cipher by virtue of his position as the then prime minister of the country and its communication with public at large in a political speech on 27.03.2022 was tantamount to divulging contents thereof to the public, which they were not authorised to receive, as the same were secret and classified [this part of the offence prima facie falls under subsection (a) of section 5(1)].

He further said that in so far as the aspect of losing the cipher is concerned, subsection (d) of section 5(1) is attracted which attracts punishment up to two years.

The IHC bench stated that the question whether the petitioner was authorised to divulge the contents of cipher in a political speech, the petitioner has relied upon the oath of the prime minister as contained in 3rd Schedule to the Constitution made pursuant to Article 91(5) of the Constitution. It also said, “It is part of the oath of the prime minister to perform his duties with the best of his ability and always in the interest of sovereignty, integrity, solidarity, well-being and prosperity of Pakistan and strive to preserve the Islamic ideology.

It is also an obligation of the Office of the Prime Minister as per the oath not to directly or indirectly communicate or reveal to any person, which is brought to his consideration or become known to him as prime minister except as required for the due discharge of his duties as the prime minister.”

Regarding the petitioner’s stance that as prime minister, it was obligatory upon him to bring it to the knowledge of the public that a conspiracy was hatched in a foreign country to overthrow his government by way of no confidence move, Justice Aamer said that it is only appropriate, at this juncture, to discuss the nature of cipher and the hands which deals with it and the treatment to be given to it.

In this regard, he mentioned that Cabinet Secretariat has formulated “Security of Classified Matter in Government Departments” and Chapter-4 of the said instrument deals with classification of official matters and accountability while the cipher security is dealt with Chapter-8, which provides in general, how the cipher operates.

He pointed out that under clause 8.16 (5), cipher telegram is an accountable classified document and a number is allotted to every copy. Further copying or transmission of the message to anyone within or outside the official circles is strictly prohibited. He also mentioned that in case, cipher is misplaced or lost, it is to be dealt with as per procedure provided in clause 8.17.

The IHC CJ stated that cipher is a classified document and it is not to fall in hands of any unauthorised persons. “As per the said instrument, movement of cipher telegram is to be properly recorded by the officer concerned or by the Crypto Centre.

After the document has been sent to the restricted hands, it is supposed to be brought back and all the copies are destroyed and only one copy is maintained,” added Justice Aamer.

He maintained that the referred document and practice of Ministry of Foreign Affairs clearly shows that cipher is received as a “classified document” meant only for certain restricted personnel and not to fall in hands of unauthorised persons and after some time, reverted back to the originator, i.e., Ministry of Foreign Affairs.

“The ‘classified document’ cannot be made public or dealt with otherwise than for the purpose, for which, it was meant for. Any breach thereof tantamount to attraction of section 5 of the Act.

Moreover, the oath of the Prime Minister clearly depicts that Prime Minister is not to disclose any information directly or indirectly received by him in his capacity as Prime Minister unless the same is required for discharge of his duties and also not to do anything which jeopardizes the integrity, sovereignty of Pakistan or is against the State,” said the IHC bench.

It continued that the statements made by different present and former officials of the Foreign Ministry, including the author of the cipher namely, Asad Majeed under section 161 CrPC, clearly show that no conspiracy was hatched in a foreign country and that, making the contents of cipher known to public, jeopardises the cipher code security and let down Pakistan in international diplomatic circles and strained relations of Pakistan with a foreign country.

Justice Aamer also mentioned that the bare reading of the above excerpt from the judgment of Supreme Court shows that contents of cipher were such that they only called for demarche and not any further strict action, as there was no conspiracy of any kind (the said part is also affirmed by Asad Majeed, the Pakistan’s ambassador to USA at the relevant time, in his statement under section 161 CrPC).

According to the judgment, another submission made on behalf of the petitioner was attraction of Article 248 of the Constitution, i.e., the immunity from prosecution. Justice Aamer stated that sub-Article (2) of Article 248 of the Constitution clearly shows that immunity from criminal proceedings is restricted to the President and the Governor and that too, only during term of Office.

Moreover, under Sub-Article (1) of Article 248, the immunity is attracted only where exercise of powers and performance of the functions as Prime Minister is in the exercise of such powers and not otherwise.

He continued that the petitioner, when addressed the public gathering, was not doing so pursuant to the performance of his duties as prime minister, rather it was a political engagement.

The IHC bench also noted that the case law cited by the petitioner for grant of bail in the facts and circumstances is not relevant inasmuch as undoubtedly the evidence is all documentary but according to the prosecution, the copy of cipher is still in custody of the petitioner and in light of the case law from across the border as well as superior courts of the country, where allegations are serious and prima facie link the accused with the commission of the offence, bail is to be denied in case of Official Secrets Act, 1923.

It further said that in so far as quashment of FIR is concerned, report under section 173 CrPC has been filed and the petitioner has the efficacious and alternate remedy by way of moving an appropriate application under section 249-A CrPC.

Copyright Business Recorder, 2023

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Parvez Oct 29, 2023 03:30pm
The double standards adopted by our higher judiciary is not just astonishing but is quite shameful and damaging to the very fabric, whatever is left, of our society.
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