ISLAMABAD  -  The Supreme Court of Pakistan Fri­day granted post-arrest bails to former Chairman Pakistan Tehrik-e-Insaf (PTI) Imran Khan and vice-chairman Shah Mehmood Qureshi in the cipher case, subject to furnishing of bail bonds of Rs1 million with two sureties. A three-member bench of the SC headed by Acting Chief Justice Sardar Tariq Masood and comprising Justice Mansoor Ali Shah and Justice Athar Minallah conducted hearing of the bail petitions of the PTI leaders.

The bench set aside the Islamabad High Court (IHC) impugned orders, but clarified that the observations made in this order are of tentative nature which shall not in any manner influence the trial court, and that this concession of bail may be cancelled, if the petitioners misuse it in any man­ner, including causing delay in the ex­peditious conclusion of the trial.

The SC order said that in order to answer the question, the bench can­not indulge in the exercise of a deeper appraisal of the material available on record of the case but is to determine it only tentatively by looking at such material. The bench after examining the material available on record, con­cluded that there is no sufficient in­criminating material available, at this stage, which could show that the peti­tioner Imran Ahmed Khan Niazi com­municated the information contained in the cipher telegram received from Parep Washington, USA, to the public at large with the intention or calculation, directly or indirect­ly, in the interest or for the ben­efit of a foreign power nor the disclosed information relates to any of the defence installa­tions or affairs, nor did he dis­close any secret official code to the public at large.

“We, therefore, are of the ten­tative opinion that 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, which is to be finally decided by the learned trial court after re­cording of the evidence of the parties,” said the bench.

It further said that 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. Imran Khan and Shah Mehmood had approached the apex court against the IHC orders dat­ed 27.10.2023 and 08.11.2023, whereby the post-arrest bail has been declined to them in the case for the offences punishable un­der Sections 5 and 9 of the Offi­cial Secrets Act 1923 read with Section 34 of the Pakistan Penal Code 1860.

The allegation against for­mer Prime Minister is that he communicated the information contained in a secret classified document (a Cipher Telegram received from Parep Washing­ton, USA) to unauthorized per­sons, i.e., the public at large, by twisting the facts to achieve his ulterior motives and personal gains in a manner prejudicial to the interests of the State securi­ty, and had also illegally retained a copy of the said document. The former Foreign Minister is al­leged to have abetted him in do­ing so. It is alleged that the peti­tioners have directly/indirectly benefited the interest of foreign powers and caused loss to the State of Pakistan.

The bench stated that offenc­es of wrongful communication of the official confidential infor­mation, etc., as defined in de­fined in clause (a) to (d) of Sec­tion 5(1) of the Official Secrets Act 1923 are generally punish­able, under clause (b) of Section 5(3), with imprisonment for a term which may extend to two years, or with fine, or with both, and are bailable under clause (b) of Section 12(1) of the Act.

It mentioned that it is only when an offence is committed in contravention of clause (a) of Section 5(1) and is intended or calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in relation to any of the de­fence installations or affairs, or in relation to any secret official code, that it is punishable under clause (b) of Section 5(3) of the Act, with death or with impris­onment for a term which may extend to fourteen years. The SC pointed out that such an offence is non-bailable and also falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 (CrPC). In respect of such of­fences, other than the provisos to Section 497(1), bail is granted under Section 497 (2), CrPC, if it appears to Court at any stage of the investigation, inquiry or tri­al, as the case may be, that there are not reasonable grounds for believing that the accused has committed such an offence but rather that there are sufficient grounds for further inquiry into his guilt. It added that the only question, in the instant matter, before the Court was 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. Justice Minal­lah in his separate note main­tained; “It is inevitable to ensure that every political competitor is treated equally without dis­crimination and everyone has the same chance to succeed.” He said, “Incarceration of a political competitor during the period of elections, except when it is nec­essary due to exceptional cir­cumstances, gravely affects the fundamental rights of the voters and prejudices the genuineness and integrity of the elections.”