The Supreme Court approved on Friday the bail petitions of former prime minister Imran Khan and ex-foreign minister Shah Mahmood Qureshi in the cipher case saying that their imprisonment would not serve any use and their release could lead to ‘genuine elections’.

A three-member SC bench led by acting Chief Justice of Pakistan Sardar Tariq Masood heard the case. Justice Athar Minallah and Justice Mansoor Ali Shah were the other two members of the bench.

The bench directed that the two leaders be released on bail and directed them to submit surety bonds worth Rs1 million each.

The bench later issued a nine-page order adding that the SC decision would not influence the trial court and the bail could be cancelled by the trial court if it so wished.

The cipher case pertains to a diplomatic document that reportedly went missing from Khan’s possession. The PTI alleges that the document contained a threat from the United States to oust Imran from office because of his stance on Russia.

Khan and Qureshi are being tried by a special court under the Official Secrets Act. All hearings in the case have so far been held inside the Adiala Jail.

The former ruling party had approached the apex court last month to seek Khan’s post-arrest bail in the case. The petition pleaded that it was an unequivocal and well-established principle of the apex court that bail should never be wielded as a form of punishment.

The written order

The bench issued a nine-page order containing the main text authored by Justice Mansoor Ali Shah over the first three pages while Justice Athar Minallah added an additional note.

Justice Shah wrote that maximum punishment under the Official Secrets Act can only be applicable if an action has been committed in the aid of a foreign power.

He added that bail can be provided if there is no reasonable ground for believing that the accused has committed such an offence but only enough grounds for further inquiry.

“The only question, therefore, before us in the present case is that whether there are not reasonable grounds for believing, at this stage, that the petitioners have committed the offence punishable under clause (b) of Section 5(3) of the Act but rather that there are sufficient grounds for further inquiry into their guilt of the said offence,” the judgement added.

It added that there is ‘no sufficient incriminating material available at this stage’ to prove that Khan either revealed a secret code or benefited a foreign power.

Justice Shah also used said that the Islamabad High Court wrongly denied bail to Imran Khan on the basis of the available material.

“The discretion exercised by the High Court in declining bail to the petitioners is found to have been exercised perversely, that is, against the weight of the material available on record of the case, which warrants interference by this Court.”

It then ordered both Khan and Qureshi be released on bail against surety bonds worth Rs1 million. However, the bail could be cancelled by the trial court if misused.

Justice Minallah’s additional note: ‘Genuine elections’

Justice Minallah wrote that Khan has served as leader of the house while Qureshi is a senior leader of his party and the question of their release during an election period is one of public importance.

“The Constitution of the Islamic Republic of Pakistan, 1973 unequivocally contemplates that the authority of the government is solely premised on the will of the people,” he wrote. He went on to say that each party and candidate should have an equal opportunity to function and only a ‘genuine’ election could be considered a true representation of the will of the people.

The note then goes to expalin how sham elections have been a recurring feature of Pakistan’s history and used the example of 2018 as an event where equal opportunity was denied to a major political party. It also referred to a prime minsier being sent to the gallows.

“Half of the nation’s life has been spent under military dictators who did not face a days incarceration for abrogating the Constitution, toppling elected Prime Ministers and subjecting political workers to the worst form of oppression,” he added.

“In stark contrast, the elected Prime Ministers and chosen representatives were prevented from participating in the electoral process by keeping them incarcerated or forcing them into exile.”

It adds that ‘genuine elections’ have remained illusory in the country’s history and it was the duty of the ECP and governments to make sure it takes place.

Justice Minallah added that the accused have not committe a crime that could threaten society such as rape, child abuse, homicide etc the trial, dependant on documentary evidence, is still in progress and keeping Khan and Qureshi in jail will not serve any purpose.

“Moreover, their release on bail during the period of elections would ensure ‘genuine elections’ and thus enable the people to exercise the right to express their will effectively and meaningfully<” it added.

Hearing

At the hearing, the Federal Investigation Agency prosecutor maintained that a notice was taken on the bail petition of Qureshi. To this, the acting CJP replied “it can issue notice now why so haste?”

During the hearing, the PTI founder lawyer Salman Safdar maintained that the trial court recorded the statements of witnesses in haste. To this, acting CJP Masood said that the speedy trial was the right of every suspect and wondered why the lawyer wanted delay in the trial.

Safdar informed the court that hearing against the in-camera trial of the case was due in the high court today (Friday).

Lawyer Hamid Khan said that the second petition was against the indictment. Justice Masood remarked that old proceedings have no impact on the new indictment, adding that the high court rejected the indictment which was challenged.

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But Khan said that the trial was still being conducted on the same charge sheet which was present earlier.

The court adjourned the hearing of the case against indictment in the cipher case and issued a notice to the FIA on the bail application of Qureshi while the hearing continued on the bail application of both the accused.

Lawyer Safdar maintained that the interior ministry’s secretary is the complainant in the cipher case and the Lahore High Court has ordered a seven-month injunction on the summons in the cipher case.

“The FIA remained silent for seven months and arrested him [the suspect] when the bail was granted in the Toshakhana case,” he said and added that 40 attempts were made to arrest ex-chairman of PTI in Islamabad. While quoting the FIA, he said that a case was registered after the investigation.

Safdar informed the court that former principal secretary Azam Khan was accused of tampering with the minutes of the meeting. According to the FIA, a case was registered after the investigation. He added that

Neither Azam nor Asad Umar was arrested in the case, he said and added that Azam became a witness in the case a day after the case was filed.

Justice Athar Minullah inquired as to how the FIA came to know that the meeting was held at Bani Gala—Imran Khan’s residence.

“Only FIA can tell that,” Safdar said. So far the prosecution has not revealed the sources, he said and informed the court that the cipher came from the Ministry of Foreign Affairs. According to the prosecution, the security system was put at risk and the Ministry of Foreign Affairs did not make any complaint regarding the cipher.

Safdar alleged that the former prime minister was being targeted for political vendetta as he accused former interior minister Rana Sanaullah of asking the FIA to investigate the matter.

Justice Masood remarked that the case should be kept legal and not politicised.

Justice Athar Manullah said that the cipher comes in the form of codes. “The Ministry of Foreign Affairs never gives the cipher based on the codes to the prime minister,” he remarked and added that the foreign affairs ministry gives the translation or briefing of the cipher to the PM.

Safdar maintained that the cipher codes were changed every month and the English translation of the document was communicated to the people concerned.

Justice Shah asked the prosecution with whom the cipher was shared. To this, Khan’s lawyer replied that the diplomatic cable was not shared with anyone. “Nowhere at the rally, was it said that what is written in the cipher and from where it came.”

Justice Minallah wondered, “What would be danger to the society by keeping the former prime minister in jail.”

Later, the court approved the bail applications of Khan and Qureshi in the case.