Farooq Naeem—AFP
The Islamabad High Court (IHC) on Friday rejected two clubbed pleas of Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan seeking bail, and the cancellation of the first information report (FIR) registered against him in the cipher case.
Announcing the verdict that had been reserved on Oct. 16, IHC Chief Justice Aamer Farooq said a written order would be issued later. The 19-page written order states that the case filed by Interior Secretary Yousaf Naseem Khokhar has alleged that the petitioner (Khan) and others were involved in the “unauthorized” sharing of a “secret classified document” and had “twisted the facts for personal gains in a manner prejudicial to the interests of the state security.” It further alleged that in a March 2022 meeting at his Banigala residence, Khan and his co-accused plotted to exploit the cipher’s contents for political gains.
It noted that Khan’s lawyer Sardar Latif Khan Khosa had argued that the facts of the case did not fit within Sections 5 and 9 of the Official Secrets Act, 1923. He further contended that as a former prime minister, Khan had constitutional immunity from prosecution under Article 248 of the Constitution. Referring to the prime minister’s oath of office, he argued that Khan had a duty to keep the public informed, which he had done by highlighting a “conspiracy” by a foreign government to overthrow his government.
Another of Khan’s lawyers, Salman Safdar, argued the case did not have precise allegations and details were omitted fraudulently. He further said the case was primarily based on the co-accused’s statement, adding the Official Secrets Act only pertained to armed forces personnel.
According to the verdict, Special Prosecutor Raja Rizwan Abbasi contested both lawyers’ arguments, insisting the act applied to all citizens, as was evident from its preamble. He noted that as prime minister, the PTI chief had received a decoded copy of the cipher at his office that he was supposed to return, but failed to do so, keeping it with him and then allegedly tampering with its contents for political advantage. He also argued that Khan didn’t enjoy immunity in the cipher case under Article 248 of the Constitution, stressing this only applied to governors and the president.
Chief Justice Farooq’s ruling notes that Section 5 of the Official Secrets Act does apply in the instant case, as the prosecution has argued that the cipher was transmitted in its decoded form to the Prime Minister’s Secretariat by the Ministry of Foreign Affairs. Noting this was duly received by Khan, which he then “apparently lost” and/or “twisted” the contents of, the ruling states he then made the contents public, allegedly for political benefit. It further notes that by sharing the communication with the public at a political rally on March 27, 2022, Khan divulged information to the masses they were not authorized to receive. “In so far as the aspect of losing the cypher is concerned, subsection (d) of section 5(1) is attracted which attracts punishment up to two years,” it adds.
On the question of whether Khan was authorized to divulge the contents of the cipher in a political speech, the judge noted the petitioner had relied on the oath of the prime minister. It notes that an obligation of the Office of the Prime Minister as per the oath is not to “directly or indirectly communicate or reveal to any person” information that is brought before him as prime minister “except as required for the due discharge of his duties as the prime minister.”
The ruling stresses that Khan’s failure to safeguard the classified document and subsequent public dissemination could lead to severe legal repercussions. It specifically refers to the potential of a death penalty or up to 14 years in jail under subsections (a) and (d) of Section 5(1) of the Official Secrets Act.
While stressing that this ruling had no impact on ongoing trial proceedings in the cipher case, the ruling said that Khan’s defense that he was “exposing” conspiracy through his speech was in fact an admission that he had disclosed information that was classified. As prime minister, it noted, it was his responsibility not to disclose sensitive information.
Referring to the testimony of former Pakistani ambassador to the U.S. Asad Majeed Khan, the IHC chief justice observed that he had maintained “no conspiracy was hatched in a foreign country and that, making the contents of cipher known to public jeopardizes the cipher code security and let down Pakistan in international diplomatic circles and strained relations of Pakistan with a foreign country.”
The court further noted that Khan’s sharing of the cipher’s contents during a public gathering in March 2022 was not a part of his duties as prime minister, as it was a political gathering. Moreover, it said, Khan as prime minister “had no authority to declassify the cipher or make the contents public, as it was a classified document.”
Rejecting the arguments regarding Khan’s immunity, Justice Farooq noted that only the country’s president and governors possess such immunity while in office, not the prime minister. The court noted that due to the serious nature of the allegations and the potential penalty of death or up to 14 years imprisonment, it was declining the bail request. It also highlighted that the contested cipher copy remained in Khan’s possession and the defense’s argument seeking its production lacked substance.
The cipher case pertains to a diplomatic document that the FIA alleges was retained by Khan while he was prime minister and never returned to the Foreign Ministry. The former prime minister, since March 2022, has maintained it “proves” a foreign conspiracy to oust him from office. However, two meetings of the National Security Council have rubbished this, maintaining the cipher’s contents constitute “interference” but not a “conspiracy,” and have issued a demarche over it. The U.S. has also, repeatedly, denied any conspiracy to oust Khan, maintaining it favors no party or individual over another.
On Monday, a Special Court formed under the Official Secrets Act indicted both Khan and PTI Vice-Chairman Shah Mahmood Qureshi in the case. Both leaders pled not guilty, with the court announcing it would commence hearing witness testimonies from Oct. 27 (today). In addition to seeking bail and cancellation of the FIR, Khan had also filed a plea in the IHC seeking a stay against his ongoing jail trial. On Thursday, the IHC endorsed the indictment, disposing of Khan’s plea against it, and instructed the special court judge to ensure a “fair trial.”
During the last hearing, Khan’s counsel Sardar Latif Khosa had argued that a FIR could not be registered against his client since the federal cabinet of the former prime minister had declassified the cipher. He further claimed that the former prime minister had immunity under Article 248 of the Constitution. Another counsel, Salman Safdar, had argued that Section 5 of the Official Secrets Act was not applicable in the cipher case.
‘No hope’
Addressing media outside the court, Khan’s sister Aleema lamented that no court in Pakistan could give “justice” to the PTI chief. Vowing that he would remain the party’s leader even if he remained incarcerated, she alleged her brother was being sidelined and kept imprisoned as part of an “agreement” in London.
“The PTI chairman said that as per the agreement, he might not be released even after the elections,” she claimed, referring to a meeting with him in prison last week. “The lawyers will continue their efforts but the public should not have any hope,” she added.