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

A single bench of IHC comprising Chief Justice of IHC 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 added, “It is clarified that any observations, made here in above, are tentative in nature and shall not prejudice learned trial court during the trial.”

He observed, “In the referred backdrop, reading the contents of section 5 in ibid juxtaposition with the allegations levelled in the case against the petitioner shows that prima facie section 5 ibid 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 was not authorized to do so as per section 5 ibid, it is reiterated that the 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 tantamount to divulging contents thereof to the public, which they were not authorized 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 authorized 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 unauthorized 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 unauthorized 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 Foreign Ministry, including the author of the cipher namely Asad Majeed under section 161 Cr.P.C, clearly show that 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.