The Official Secrets Act is typically reserved for the armed forces and has not been applied against any prime minister in the past, argued ousted PM Imran Khan's lawyer on Thursday as the Islamabad High Court (IHC) took up his bail plea in the cypher case.
The hearing was adjourned till Monday after the defence counsels completed arguments. The prosecution will continue its arguments at the next hearing.
Before proceedings adjourned, the Federal Investigation Agency (FIA) prosecutor informed the court that this case given the charges can be tried under a military court as well.
The FIA prosecutor said that case documents were given to the accused on October 9. The defence counsel has said that the decision on their petition against trial being conducted inside jail premises is pending, Abbasi apprised the court.
To this, IHC Chief Justice Aamer Farooq said that the decision would be issued either by tomorrow (Friday) or Monday.
When the FIA counsel suggested that the bail plea be combined with other miscellaneous pleas pertaining to the case, Justice Farooq remarked that the bail plea is separate and would be heard separately.
The IHC chief justice added that there is no stay order on the ongoing trial at the moment. The trial will be run at the special court's discretion, he added.
At this, the FIA lawyer argued that the defence was not allowing the trial to proceed.
The PTI chief's counsel Salman Safdar contended to this by expressing regret at matters pertaining to the trial court being discussed during the bail hearing. If this pandora's box is opened, the prosecution would have to face what is brought up, he said.
At this, Justice Farooq asked the defence counsel to read Section 5 again.
The defence contended that this law is typically applied to the armed forces and has not been used against a former prime minister in the past. He maintained that the prosecution claims that they have to recover the cypher from Imran. Then how do the lawyers know that any tampering has been done, asked advocate Safdar, adding that there is no report by any experts.
It is a law related to leaking information with the enemy, said advocate Safdar. Unfortunately, it is being used against a political opponent, he added, arguing that the PTI chairperson is a political prisoner.
Read IHC to hear Imran's pleas in cypher case before indictment date
He argued that the law pertains to compromising national security and apprised the court that the trial court did not grant the FIA remand when it claimed that they need Imran's custody to recover the cypher. It was not an individual's action but a government's action, he said, questioning why the interior ministry is the complainant of this case and not the foreign ministry.
Why was the FIR registered after the passage of 17 months, he contended, adding that the matter was discussed in four forums, including the federal cabinet, National Security Committee and the Supreme Court. A foreign diplomat was called to register the country's protest over the matter, he recalled.
The prosecution claims that the cypher came on March 7, 2022, and remained with Imran till April 11, said advocate Safdar. The NSC meeting was held on April 24 under the chairmanship of then prime minister Shehbaz Sharif, who took oath on April 11, recalled the defence counsel.
A month later the cabinet informs the FIA that the cypher is missing from the Prime Minister's House and an inquiry is initiated six days later, said the defence counsel. If Shehbaz was in the PM House at that time then is he an accused in the case or did he join the investigation and record his statement, asked advocate Safdar. How was the NSC meeting held without the cypher and why has all this been omitted from the FIR, he asked.
This prompted CJ Farooq to inquire whether the minutes of the NSC were submitted before the apex court.
To this, FIA special prosecutor Zulfiqar Naqvi replied that only a press release was presented not minutes of the meeting.
When Azam Khan's statement was brought up during the proceedings, the defence argued that the former PM's aide went missing. He added that past precedent's show the court's opinion on statement's recorded under pressure or threats, an element which cannot be dismissed from this case.
The defence reiterated that the prosecution was unable to acquire physical remand of the accused from the relevant court.
After the completion of arguments by the defence counsels, the FIA prosecutors began their arguments.
When advocate Safdar urged the court to decide on the matter today before the trial court initiates indictment process, Justice Farooq remarked that the prosecution would have as much time to present arguments as given to the defence team.
He further said that a decision on the bail plea would take two to three days.
The special prosecutor when presenting arguments said that the charges have been framed under the Official Secrets Act which was made part of the Army Act in 1960. However, it is applicable to anyone in service and the trial can also be conducted under military court under these charges, he said.
He further contended that such documents are not to be disclosed by any prime minister, president or governor or public official even after they leave office.
On the court's query, the prosecutor said that the copy of the cypher could not be submitted along with the challan either as it is a secret document.
The hearing was then adjourned till Monday, when the FIA prosecutors will continue presenting arguments.
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