Cipher Case Judgement: The nations are doomed when judges believe in ‘Perception is stronger than reality’

DND Thought CenterCipher Case Judgement: The nations are doomed when judges believe in ‘Perception...

Agha Iqrar Haroon

The Islamabad High Court (IHC) on June 3, 2024, acquitted former prime minister Imran Khan and his former Foreign Minister Shah Mehmood Qureshi in the Cipher case. There is a perception that Imran Khan may soon be acquitted from another case against him, the Toshakhana Case which is under hearing in IHC. Since all major accused of the May 9 Mutiny case have reached parliament after Elections 2024 or been on bail, there is a strong perception that he would also be acquitted from cases related to May 9 vandalism.

   
former prime minister Imran Khan and his former Foreign Minister Shah Mehmood Qureshi smiling over the legal system of Pakistan
Former prime minister Imran Khan and his former Foreign Minister Shah Mehmood Qureshi are laughing at the legal system of Pakistan.

Pakistan is a country where judges of higher judiciary categorically say that ‘Perception is stronger than reality’ and such observations of judges indicate how important media management is to get the decisions from the courts of Pakistan. I have been writing since April 2022 when Imran Khan was voted out from the National Assembly that the State has categorically failed to dispel his narrative-building machinery although the government that came into power after voting out Imran Khan spent over Rs. 20 billion state budget on information management in 16 months but not a single campaign was planned to mitigate false narrative of Imran Khan against the state institutions. The interim government which was almost an extension of the PDM government also did not give any heed to mitigate the perception created by Imran Khan against state institutions. The PDM government, as well as the interim government, could not take the culprits of the May 9 vandalism to task and majority of PTI leaders who were directly involved and could be seen and heard in audio video leaks for planning the May 9 Mutiny were allowed to contest General Elections 2024 (and now sitting in the parliament), sending a categorical message to public that either the May 9 was a false flag (as claimed by PTI) or the state was too weak to take them to the task—the perception eventually helped Khan’s narrative against the state institutions.

Regarding the fate of the Cipher case, the judgment is based on two important factors. One ground was that the State failed to submit a cipher (that was the core evidence of the case) and the second reason that made a perception in favor of the respondents was the legal and moral status of the ‘Approver’ who was the focal point of the case. In this case, the Approver was former Principal Secretary of Imran Khan. Azam Khan, a grade 22 official of the federal government had been a close ally of Imran Khan since PTI had formed a government in KPK.

In the legal sphere, the approver (Sultani Gowa) in a criminal case is always considered as a ‘moral ratchet’ and judges do not take him seriously unless other witnesses do not support his statement. Additionally, the approver may be taken seriously if she/he gives an undertaking that he/she is sorry for being a partner in the crime and is ready to face the punishment by the court. The witness of an approver having a commitment from the state that he/she will be pardoned or not being taken as a partner in crime has no legal value and can only help the state to find circumstances in which the crime was committed. Everybody who was following the Cipher Case could see these two fallacies and mistakes conducted by the government’s legal team. The backdrop of the case indicated that the government wanted to bail the former Foreign Secretary and his team out from the case as well as senior bureaucrat Azam Khan who was a partner in the crime, therefore the case was prepared by taking both top bureaucrats out of the list of accused, leaving several loopholes in the case. From the very first day, PTI circles were confident that Azam Khan’s statement would help Imran Khan to get out of this serious case and now the time has testified that their (PTI’s circles) confidence in the acquittal of Imran Khan was not unfounded.

The Catch in the Case

Regarding the point of sharing the cipher with the court, one can say that since the cipher is a classified document under international norms the government could not submit this document in the case. This same legality was very much known by former Foreign Secretary as well as Azam Khan and they were confident that the government would not submit the document in court. Here is the catch. Instead, the government could build the case that the former prime minister abused his position of being the prime minister and talked about threats came from the United States and he for gaining domestic mileage created a situation in which Pakistan’s relations were compromised with the United States and this was against the oath of a prime minister, the state created a case that made cipher as “evidence” knowing that this evidence could not be produced to the court. Since the government could not produce this evidence in the court thereby this evidence had no legal value because it was never submitted to the court. Since it was not produced to the court and the whole case evolved around this, the allegations built by the government lost their legal value.

Concerns raised by the ruling party

After the decision of the IHC when some of the government officials and politicians of the ruling party were contacted, they had their valid moral case against the decision of IHC.

They are of the view that Imran Khan and his former Foreign Minister Shah Mahmood got 10 years in prison in the case and according to the detailed decision, the judge wrote that Imran Khan and Shah Mehmood Qureshi deliberately lied while the statement of Principal Secretary Azam Khan was based on the truth, which strengthened the prosecution’s arguments. During the case proceeding, Imran Khan and Shah Mahmood Qureshi misbehaved with the public prosecutor and threw away the files after the verdict because they had nothing to contest in the court.

Some of their observations regarding the decision of the case may be useful to understand concerns that the state of Pakistan has expressed over the situation in which, it seems, the higher judiciary is working under the rule of ‘perception is stronger than reality’ and judiciary is afraid of trolling machines of PTI slur brigades. The federal government officials and the ruling party raise the following points:

  • Does the Islamabad High Court not know that during the cipher case, Azam Khan while recording a sworn statement, informed the court that he provided a copy of the cipher to Imran Khan and later Imran Khan said that the copy of the cipher had been lost.
  • The cipher case is of a very sensitive nature, the people responsible for it did not and do not deserve any kind of concession. The cipher issue is also important in terms of national security. When such relief is given to the involved characters, it will further encourage the anti-national propagandists, after which they will harm the country by revealing other secrets of the country. This demand has also gained strength in public circles that despite the heinous role of Imran Khan in relation to the cipher case, why is he being given judicial relief?
  • The most important thing is that the cipher is still missing, and the copy is still missing, yet the court acquitted him today, this is an important question.
  • So far, the majority of courts have provided complete facilitation to Imran Khan and PTI. So far, the Islamabad High Court has granted relief to Imran Khan in every important case.
  • The impression among the public is getting stronger that the judges of the higher judiciary, especially the Islamabad High Court, have a soft corner with regard to PTI, while the judiciary’s attitude towards the government and national security institutions is biased, and the cipher case judgment is the latest example of this attitude. In the judgment of the case, it was unconscionable to judge a case that was sensitive to national security and relations with the international world despite personal animosity and political affiliation.
  • Did the judges of the Islamabad High Court not listen to the audio leaks in which Imran Khan can be heard talking to the then Principal Secretary Azam Khan in which he was instructed that they ‘play up’ with the cipher and will turn it into a foreign plot to oust their government.

Some of the observations mentioned above over the decision of IHC are not unfounded and someone from the higher judiciary should answer pertinent questions raised by government circles.

Toshakhana Case also has a Catch

I fear that other cases against Imran Khan like the Toshakhana case would face the same destiny. In the Toshakhana case, instead of building the case that state property (gifts worth billions of rupees) was taken away from Toshakhana and was sent abroad for selling and fake receipts were deposited in Toshakhana, the case was built that Imran Khan sold out state property before buying it from the Toshakhana and submitted fake receipts. Selling Toshakhana gifts is not a crime and many former prime ministers bought and sold Toshakhana gifts, therefore selling Toshakhana gifts from a very dear friendly country could be a moral lowness of Imran Khan but not a legal crime under the law. The focus from real possible crimes (taking Toshakhana property out of the country and submitting fake receipts) was diverted because, in both illegal moves, bureaucrats who were custodians of State property were responsible for caretaking state properties and were partners in the crime by allowing Farah Gogi to take gifts from Toshakhana without any legal approval. Apparently, the government did not want to involve the then Secretary Cabinet and his team in the case, therefore the case was made on the ground of ‘selling the gifts’ instead of taking state gifts valued over billions of rupees out of Pakistan to Dubai for selling illegally.  There are serious questions regarding the preparation of both cases against Imran Khan. The foremost question is that did the legal team of the government was incompetent enough to divert the case in the wrong direction. or the then government did not want to prepare a strong case against Imran Khan knowingly that judges would go for the ‘perception is stronger than reality’ formula as Imran Khan enjoys exceptional cordial relations with the higher judiciary, therefore, he would easily get out of the cases.

The fate of May 9 Black Day hangs in balance

The same question arises in May 9 cases. Knowing that certain strata of the higher judiciary were in love with Imran Khan and he along with his followers would get the bail from the higher judiciary, the then government did not introduce any special law that could be effective in taking the culprits to the task. May 9 was an extraordinary event and that surely needed extraordinary laws to deal with the aftermath of the May 9 events. It was observed that those who played havoc with the country were getting chances to contest the General Elections 2024 and the ‘perception’ was in their favor while the then government was not proactive in breaking the false and fabricated narrative of Imran Khan he built against state institutions including against Chief Justice of Supreme Court and Chief of Pakistan Army. Journalistic circles expected that the government would introduce a Presidential Ordinance to take the culprits of May 9 to task because everybody knew that many judges of the higher judiciary were standing with PTI, therefore, the culprits of the May 9 vandalism would get bail soon. Since no special laws were introduced to try May 9 culprits in special courts, the accused were allegedly facilitated by certain judges of Peshawar High Court as well as Islamabad High Court to get the pre-arrest bails and to get the permission to contest the General Elections 2024. This situation sent a loud and clear message or at least a ‘perception’ that the government was not keen to punish those who did the May 9 mutiny while the Pakistan Army was not ready to forget and forgive those who attacked the monuments of martyrs. It was perceivable that both were not on the same page as much as they should have been.

Related Story: Is the nation forgetting the May 9 mutiny?

Incidents of May 9 2022 did not happen in one day or were not prearranged in one week rather they had a deep and consistent propagation process planned against state institutions since the day former prime minister Imran Khan was voted out from government in April 2022 while the following government did not take administrative actions like introduction of special laws to punish culprits via Presidential Ordinance or otherwise and to ban Imran Khan on television screens or to crackdown against the propaganda machinery of PTI. Imran Khan was free to use television screens to abuse state institutions particularly the Pakistan Army, higher judiciary, and Election Commission of Pakistan. A large-scale crackdown was conducted and hundreds of accused were arrested who were present, participating, directing, and planning attacks. It was decided that whosoever was involved in attacking armed forces would be tried in military courts because it is the norm globally that culprits involved in attacking armed forces face trials in military courts. However, the trial of civilians in military courts was challenged in higher courts and the case is in court and sub judice therefore no further comments are appropriate. With time, slowly but surely accused of the May 9 mutiny got relief from the courts and almost all important leaders of PTI contested the General Election 2024 under the court’s permission.

Related Story: The question of trial of civilians in Military Courts and bleeding national security

The acquittal of Imran Khan from the Cipher case and the expected acquittal of him from the Toshakhana case as well as from the May 9 Mutiny case creates a ‘perception’ that Pakistan is forgetting what happened on May 9 black day and politicians, as well as state administrative units and the judiciary, are more interested in their reputation and politics than the reputation and well-being of the country.

History never forgets and forgives and I am sure historians will ask why judges were playing havoc with the Constitutional Framework in Pakistan in the post-April 2022 era.

Disclaimer:

The views and opinions expressed in this article/Opinion/Comment are those of the author and do not necessarily reflect the official policy or position of the DND Thought Center and Dispatch News Desk (DND). Assumptions made within the analysis are not reflective of the position of the DND Thought Center and Dispatch News Desk News Agency.

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