ISLAMABAD: The Supreme Court granted post-arrest bails to former chairman Pakistan Tehreek-e-Insaf (PTI) Imran Khan and vice-chairman Shah Mahmood Qureshi in the cypher case, subject to furnishing of bail bonds of Rs1 million with two sureties.
A three-judge bench, headed by Acting Chief Justice Sardar Tariq Masood and comprising Justice Mansoor Ali Shah and Justice Athar Minallah, on Friday, heard 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’s order said 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, reached the conclusion 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 cypher 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.
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 Mahmood have approached the apex court against the IHC’s 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 the former prime minister is that he communicated the information contained in a secret classified document (a cypher telegram received from Parep Washington, USA) to unauthorised 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, the petitioners have directly/indirectly benefited the interest of foreign powers and caused loss to the State of Pakistan.
The 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 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 14 years.
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.
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.” “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.”
Copyright Business Recorder, 2023
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