The Supreme Court (SC) on Friday approved the post-arrest bail of former prime minister Imran Khan and ex-foreign minister Shah Mahmood Qureshi, both of whom are incarcerated at Adiala Jail, in the cipher case.

The top court also directed the PTI leaders to submit surety bonds worth Rs1 million each.

Despite being granted bail, Imran is not expected to be released as he has also been arrested in the Toshakhana and Al-Qadir Trust cases. However, Qureshi’s daughter said she expected her father would be released as his arrest was not required in any other case.

The order was issued by a three-member bench headed by Justice Sardar Tariq Masood and comprising Justices Athar Minallah and Syed Mansoor Ali Shah on a set of PTI petitions.

The cipher case pertains to a diplomatic document that the Federal Investigation Agency’s (FIA) charge sheet alleges was never returned by Imran. The PTI has long held that the document contained a threat from the United States to oust Imran as prime minister.

The Special Court (Official Secrets Act) had begun the cipher trial afresh last week at the Adiala district jail after Imran and Qureshi were indicted for a second time in the case on Dec 13.

The two were first indicted in the case on Oct 23 when both had pleaded not guilty. The trial was being held at Adiala Jail and four witnesses had alre­a­dy recorded their statements when the Islamabad High Court (IHC) had termed the government’s notification for a jail trial “erroneous” and scrap­ped the entire proceedings.

The IHC had endorsed Imran’s indictment, disposing of his plea against the same, but had also instructed the special court judge to ensure a “fair trial”.

Last month, the PTI had moved the apex court seeking Imran’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.

Previously, the SC had issued notices to the FIA and federation on the plea and directed them to submit their responses to it.

The written order, a copy of which is available with Dawn.com, said that there was “no sufficient incriminating material available at this stage” which showed that Imran communicated the information in the cipher to the public at large or for the benefit of a foreign power. It said the disclosed information did not relate to any defence installations or affairs and Imran did not disclose “any secret official code” to the public.

“We, therefore, are of the tentative opinion that there are no reasonable grounds for believing, at this stage, that the petitioners have committed the offence” punishable under Section 5(3) of the Official Secrets Act.

At the same time, the court said that there were “sufficient grounds for further inquiry into their guilt of the said offence, which is to be finally decided by the learned trial court after recording of the evidence of the parties”.

Justice Minallah says PTI leaders’ incarceration will not ‘serve any useful purpose’

In the judgement, Justice Minallah penned an additional note in which he said that Imran and Qureshi were alleged to be involved in an offence which did not fall within the category of crimes threatening society.

He added that their incarceration would not “serve any useful purpose” and their release on bail would “ensure genuine elections and thus enable the people to exercise the right to express their will effectively and meaningfully”. He further said that there were no “exceptional circumstances” to decline the concession of bail.

He said it was the ECP and government’s duty to ensure that the public was facilitated in expressing its will through a “genuine election”, adding that it was also bound to ensure that there was no perception of oppression or repression against one political party while others were treated favourably.

“The unflattering electoral history and oppressive treatment of political dissidents during the period of elections necessitates considering the grant of bail favourably as a rule,” he said.

He said that every candidate and political party should have an equal opportunity to reach citizens and have access to electronic media.

“When all the political competitors do not enjoy the same advantages and disadvantages during the election period, then the fundamental rights of the citizens are breached and simultaneously the Constitution is gravely violated,” he said.

Therefore, Justice Minallah said it was inevitable to ensure that every political competitor was treated equally without discrimination and that everyone had the same chance to succeed.

“Incarceration of a political competitor during the period of elections … gravely affects the fundamental rights of the voters and prejudices the genuineness and integrity of the elections,” the judge said.

Imran’s chances of relief ‘very slim’: PTI lawyer

Speaking to media outside the SC after the hearing, PTI counsel Salman Safar said Qureshi should be released immediately. “Many of Imran Khan’s pre-arrest bails have also been confirmed, while several have been returned to trial judges,” he said.

The lawyer said the government had made a “mountain out of a molehill with this case and today that mountain has fallen on the FIA and the government”.

“All three judges agreed unanimously that this was a case of political victimisation, and you cannot expect a level playing field like this,” Imran’s counsel Salman Safdar said, adding that the cipher case was now “null and void”.

The lawyer further alleged there was a trend of “case after case” in the country and when all options ran out, the government came up with the cipher case.

Meanwhile, PTI lawyer Yousaf Chaudry told AFP that the prospect of Imran obtaining relief in the near future “appears to be very slim”.

Standing alongside Safdar, Qureshi’s daughter Meherbano said the SC had issued its verdict today “on merit”.

“This bail should have been given by the high court but I am glad it came from the Supreme Court,” she said, adding that the cipher case was the result of “political victimisation”.

Meherbano said the judges in the courtroom were “bewildered by the prosecutor’s arguments, and how he was making a mockery of the case”.

She added that bail should have been granted to the duo four months ago but lamented that the PTI leaders were instead locked up in the Adiala Jail. Meherbano also recalled how her family faced difficulties in meeting Qureshi.

The hearing

At the outset of today’s hearing, the court issued notices to the FIA and government on Qureshi’s bail plea at the insistence of the PTI vice chairman’s lawyer.

Presenting his arguments, Safdar contended that the special court had recorded the statements of 13 witnesses “in haste”, to which Justice Masood said a speedy trial was the right of the accused.

“Why do you want the trial to not be completed?” the judge asked.

Barrister Safdar said that the IHC was set to issue an order on in-camera proceedings in the cipher case and requested that the PTI petition challenging indictment in the case be heard at another time. However, Justice Masood remarked that the fresh indictment would be not impacted.

PTI lawyer Hamid Khan insisted that the charge sheet in the new indictment was the same but the judge that the petition against the old chargesheet had become ineffective now. Justice Masood directed the counsel to approach the high court for the same.

Subsequently, the court postponed the hearing on the petition against the indictment and began hearing arguments on the bail pleas.

Safdar contended that the interior ministry’s secretary was the complainant in the cipher case. He recalled that the Lahore High Court (LHC) had placed a seven-month stay on summons in the case.

“For seven months the FIA was silent but arrested Imran immediately after the suspension of the sentence in the Toshakhana case,” the lawyer highlighted, adding that 40 attempts were made to arrest Imran in Islamabad.

“And all the other cases registered against Imran are separate,” he said.

For his part, the deputy attorney general said the FIA had initiated an investigation in the cipher case on orders of the government after the audio leak, in which Imran could purportedly be heard talking about the cipher.

Elaborating on the charges, Safdar said it was alleged that a conspiracy to misuse the cipher was hatched during a PTI meeting at Imran’s Bani Gala residence on March 28, 2022. “The FIR also accused Imran of never returning a copy of the cipher,” he said.

The lawyer added that another charge in the case was putting the entire security of the cipher system at risk. “The role of Asad Umar and Azam Khan was to be decided during the inquiry. Four suspects were mentioned in the FIR but the trial was only held of two,” he argued.

Azam Khan, the principal secretary to Imran during the PTI tenure, was accused of miscommunicating the contents of the cipher and the minutes of the meeting, Safdar added. He contended that despite being nominated in the case, neither Asad Umar nor Azam Khan were arrested.

Here, Justice Minallah asked how the FIA found out that a meeting was held at Bani Gala. “This can be told only by the agency,” the PTI counsel replied, claiming that his client was being “politically victimised”.

He further stated that PML-N leader Rana Sanaullah, as interior minister at the time, had instructed the FIA to investigate the matter. “The domain of the Official Secrets Act was broadened and the former premier was charged under it,” Safdar said.

He argued that the aforementioned law was about the armed forces and national defence. “A cipher case was registered for the first time in the history of the country. In the past, the law was used to punish ex-military officers for leaking sensitive information to enemy countries,” the lawyer said.

Here, Justice Minallah noted that the cipher was sent in codes. “The foreign ministry never gives the coded cipher to the prime minister,” he remarked, explaining that the ministry provided the cipher’s translation or briefing to the PM.

At one point, Justice Shah asked: “What does the prosecution say? Who was the cipher shared with?”

Here, Safdar said the cipher was never shared with anyone. “The cipher was sent to the SC only after declassification,” he maintained, adding that the codes of the secret document were never available with the former premier.

“The foreign ministry updates the premier on cipher for assistance in the formation of foreign policies,” Justice Minallah said. Meanwhile, Justice Shah said the purpose of the Official Secrets Act was to prevent secret information from being leaked.

“Diplomatic information is also sensitive but its nature is different,” Justice Shah added.

For his part, the PTI counsel said Pakistan’s former ambassador to the United States Asad Majeed Khan had sent the cipher as a very sensitive document.

“You agree that sensitive matters cannot be shared,” Justice Shah noted here to which Safdar said it had to be decided if sensitive information was even shared in the first place.

The lawyer further contended that the sections of death sentence and life imprisonment could not be charged on Imran.

At that, Justice Masood remarked that although the cipher was not shared it was televised.

The PTI counsel said Azam Khan had received the cipher as principal secretary from the foreign ministry. He highlighted that the case alleged that contents of the cipher were shared during a PTI meeting on March 28 but the challan claims that the document was waved during a party rally on March 27.

“The real cipher is at the Foreign Office and if that has gone out then it is the foreign ministry’s fault,” Justice Minallah noted, adding that the cipher could not be discussed in public.

Meanwhile, Safdar recalled that Qureshi had said in a speech that he informed the premier about the “conspiracy as I am bound by the oath”. “Qureshi has been in jail for 125 days just because of this statement,” the lawyer said.

He further contended that during the March 27 rally, Imran had only mentioned the cipher but never revealed its contents. “On one hand they say the cipher was made public and on the other, they say in-camera trial be held,” the PTI lawyer lamented.

Here, Justice Minallah asked: “Elections are coming and the PTI founder is a big political leader. How will keeping him in jail endanger the society?”

On the other hand, Safdar claimed that Azam Khan’s statement on the cipher — wherein it was claimed that the narrative behind the cipher was fabricated — was forced. He further recalled that Azam’s family had alleged that he was abducted before the alleged confession, which had surfaced on social media on July 19.

“Did the investigation officer look into this?” Justice Minallah asked. He also noted that Azam Khan’s statement mentioned that the former premier did not have the cipher.

At one point, Justice Masood asked if the foreign secretary was the suspect or the witness. “The then-foreign secretary is a witness,” the deputy attorney general replied.

Safdar contended that the foreign ministry had not sought the cipher copy from Imran for 17 months. He also read out loud in court the text of Imran’s speech on March 27 last year. However, the court instructed him to restrict the arguments to the plea.

“Ciphers are sent across the world but they are never mentioned in public,” Justice Minallah said. Justice Masood remarked that Qureshi was “smart” as he didn’t mention the cipher himself and instead gave it to Imran.

Subsequently, Qureshi’s counsel Ali Bukhari presented his arguments. He contended that Qureshi was kept in physical remand for 10 days but nothing was found.

Here, Justice Minallah asked if the PTI vice chairman was participating in the upcoming polls to which his lawyer said Qureshi would submit his nomination papers today. “He wants bail so that he can contest for elections,” Bukhari argued.

Later, FIA prosecutor Rizwan Abbasi came to the rostrum. Justice Minallah asked how the cipher was made public if it was with the foreign ministry.

The prosecutor said there were rules to handle sensitive documents. “Where is the rule book?” Justice Minallah asked, to which Abbasi said they were private and hence might not be available in the SC library.

“How can rules be private,” the judge said. In response, the FIA prosecutor said some instructions were only provided to the government.

Justice Minallah also noted that the way the trial was being conducted showed that the prosecution was violating the rules. “A decoded message is not the cipher,” he emphasised, adding that a cipher meant a coded document.

“Did the foreign secretary tell the PM that this document cannot be made public?” Justice Minallah further asked. “He did mention it in the meeting,” Rizwan responded.

“Why didn’t the secretary provide this information in a written document,” the judge asked.

Here, Justice Shah inquired about the law linked to the cipher. “What is written in the investigation report about returning the cipher? When can it be returned? Neither the prosecution is understanding [things] nor the investigation … what came forth in the inquiry?” he asked.

Justice Shah also asked how foreign powers benefitted in the entire matter, noting that none of the statements recorded by the witnesses showed the same.

Justice Minallah asked if the government wanted a repeat of the situation in 1970 and 1977 and inquired if instructions had been given by the caretakers on opposing the bail.

“Why does this happen with political leaders in every era,” Justice Minallah wondered, adding that currently, the rights of the public were in question not the former premier. “This court is the guardian of fundamental rights. The former prime minister’s crime is not proven, he is innocent,” the judge added.

At one point, Justice Masood expressed surprise at the IHC verdict in the cipher case and noted that a death sentence was not applicable in the current case. He also asked why Shehbaz Sharif had not mentioned that the cipher was missing during the National Security Council meeting.