Decision reserved on FIA's plea to hold Imran's cypher case bail hearing in-camera

The Islamabad High Court (IHC) reserved its decision on Monday on the Federal Investigation Agency's (FIA) request to hold an in-camera hearing of former prime minister Imran Khan's bail plea in the cypher case.

The FIA made this prayer a day earlier citing diplomatic concerns if the matter was heard before an open court, prompting the defence counsel to question what the federal body fears will be made public when the case against the former premier is that he made a sensitive document public.

Imran, who was ousted from the Prime Minister's Office in April 2022 through a vote of no-confidence, appealed to IHC Chief Justice Aamer Farooq through his lawyer Salman Safdar, that the next date for hearing be given soon - within a day or two.

FIA's counsel advocate Shah Khawar made this request a day before the court was due to hear Imran's application challenging rejection of bail by lower courts in nine cases stating that a trial being conducted under the Official Secrets Act could not be made public.

During today's hearing, the FIA prosecutor informed the IHC that the federal body was filing a similar application before the trial court.

Justice Farooq remarked that the trial court would make its own decision while inquiring whether the bail plea could be heard publicly.

The IHC chief justice asked the prosecutor to clarify whether there was any particular code of conduct regarding the cypher as the latter claimed that the matter was sensitive given that "secret" documents would be presented before the court.

The prosecutor further apprised the court that the FIA wanted to present statements given by other countries as well and an open court hearing could potentially jeapordize relations with those countries.

The code of conduct regarding the cypher was read out before the court. At one point, Justice Farooq asked the FIA to apprise the court as to who was decoding the cypher.

Responding to the court's queries, advocate Khawar said that the cypher is a sensitive document, which must be kept secret. He informed the court that such documents are received via email or fax in coded form and typically remain with the foreign ministry.

Defence counsel advocate Safdar suggested that the court may expel from the courtroom any person it deems fit.

Read Cypher case: Imran, Qureshi's judicial remand extended till October 10

Advocate Khawar stated that such documents are typically sent and received in coded form through diplomatic chambers and it is the Foreign Office (FO) that decodes such documents. He further apprised the court that a copy of diplomatic cyphers is circulated among the prime minister, president, army chief and Inter-Services Intelligence (ISI) director-general while the original document remains with the FO. The copy is returned to the same, he added.

Once decoded and returned, the copy is destroyed and the original document remains with the FO, said advocate Khawar.

The court inquired whether all such codes are universal. Justice Farooq remarked that he had not held an in-camera hearing in his courtroom in nine years with the exception of a missing persons case once or twice perhaps.

Advocate Khawar informed the court that he would not be engaging with cypher codes while presenting his arguments.

Meanwhile, advocate Safdar contended as to why the FIA was raising this request now. Imran's counsel informed the IHC that no such contentions were raised by the federal body when the defence was presenting its arguments before the trial court.

He argued that the case before the IHC today (Monday) was of post-arrest bail. When the FIA prosecutor is aware of the nature of the case then this application should be moved before the trial court not during a bail hearing, he contended.

Advocate Safdar further expressed bewilderment at the FIA's argument. The case against Imran is that he made the cypher public, said advocate Safdar. If the prosecution's accusation is valid and the cypher is already public then what secrecy is being sought to protect through an in-camera hearing request, he asked.

Why was this application not filed before the trial court, contended advocate Safdar.

Refering to Justice Farooq's remarks last week about the hearing being held before an open court and potentially being live streamed, the defence counsel said his team had come prepared for the latter.

Objecting to the FIA's request, advocate Safdar argued that proceedings on the bail plea could not be held in-camera. This request could be made before the trial court but not for post-arrest bail, he maintained, adding that sensitive information could be shared in the judge's chambers as well.

I would have taken this request seriously if it was filed in time, said advocate Safdar, adding that everyone knows what the case is already. The prosecution can also make its sensitive arguments before the court in writing, he argued.