Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 PLD 87
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-10-27
Parties: Imran Ahmed Khan Niazi, Imran Ahmed Khan Niazi vs The State, etc, Federation of Pakistan, etc.
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-10-27, officially reported as 2024 PLD 87. In this matter between Imran Ahmed Khan Niazi, Imran Ahmed Khan Niazi and The State, etc, Federation of Pakistan, etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 Islamabad 87
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title:Imran Ahmed Khan Niazi, Imran Ahmed Khan Niazi vs The State, etc,
Federation of Pakistan, etc. Case No.: Crl.Misc. No.1354-B-2023, W.P. No.2448/2023 Date of Judgment:2023-10-27 Reported As: 2023 IHC 112, PLJ 2024 Cr.C. 230, PLD 2024 Islamabad 87 Result: Application Dismissed Judgment AAMER FAROOQ C.J.--This judgment shall decide the captioned matters, as common questions of law are involved. 2. In Crl. Misc. No.1354-B-2023, the petitioner, Imran Ahmad Khan Niazi, seeks bail after arrest in case FIR No.06 dated 15.08.2023 under sections 5/9 Official Secrets Act, 1923 read with section 34 PPC registered with Police Station Counter-Terrorism Wing/FIA, Islamabad (the case). 3. In W.P. No.2448-2023, the petitioner seeks quashing of referred case. 4. The case of the prosecution, against the petitioner, is that on the complaint of Yousaf Naseem Khokhar, Secretary, Ministry of Interior, Government of Pakistan, the above case was registered against the petitioner, wherein it was alleged that the petitioner, along with other persons, is involved in communication of secret classified document (cypher) received from Washington. It was alleged that the referred communication was unauthorized and twisted the facts for personal gains in a manner prejudicial to the interests of the State security. It has also been alleged therein that on 28.03.2022, a meeting was held in Banigala whereby the petitioner, along with others, attended the same and hatched a scheme to twist the contents of cypher for political gains. According to the case, actions on part of the petitioner along with accused persons, directly/indirectly benefited the interests of foreign powers in a way so as to prejudice the interests of the State. 5. The petitioner applied for bail after arrest, which was dismissed by the Judge, Special Court (Official Secrets Act), Islamabad vide order dated 14.09.2023, hence the petition for bail. 6. Sardar Latif Khan Khosa, Senior Advocate Supreme Court, appearing for the petitioner in W.P. No.2448-2023, inter alia contended that bare reading of sections 5 & 9 of Official Secrets Act, 1923
---
## Page 2
(the Act) discloses that no offence is made out in the facts and circumstances of instant case. In this regard, learned counsel took the Court through definition of 'prohibited place' as provided in subsection (8) of section 2 of the Act to argue that the alleged occurrence does not involve any 'prohibited place', hence offence under section 5 ibid is not made out. Learned counsel also took the Court through the definition of 'enemy' as provided in subsection (8A) of section 2 of the Act. Learned counsel further argued that under section 13 of the Act, the procedure provided for the trial of the offence is that same is to be conducted by the court not inferior to the Magistrate and cognizance can only be taken by a court upon complaint made by order of, or under authority from, the appropriate government. It was submitted that no complaint has been filed in the case and report under section 173 Cr.P.C. was presented, on the basis of which, further proceedings cannot take place. Learned counsel submitted that under Article 248 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), the petitioner has the immunity from prosecution. It was also submitted that oath of the Prime Minister is provided in 3rd Schedule to the Constitution pursuant to Article 91(5) of the Constitution, which clearly stipulates that he has to take masses in confidence, which he accordingly did by making public the contents of the cypher and highlighted that a conspiracy has been hatched by a foreign government to overthrow his government. It was submitted that concept of 'State' is provided in the Constitution and the referred concept includes the Federal Government and the bottom line is that State is to be governed by Islamic principles as enshrined in Quran and Sunnah. 7. Mr. Salman Safdar, Advocate Supreme Court, appearing for the petitioner in Crl. Misc. No.1354-B- 2023, submitted that section 5 ibid, of which, the petitioner is implicated, is not attracted in the facts and circumstances; he took the Court through contents of section 5 of the Act and definitions provided in section 2 ibid of the Act to show that no offence is made out in the facts and circumstances. Learned counsel argued that the fact that there is no 'prohibited place' where any official secret was disclosed, means that section 5 ibid is not attracted. It was further contended that the Act of 1923 is of the colonial era designed for military installations and the secrets leaked with respect to such installations. It was submitted that this provision of law is never meant for proceedings against the civilians. On the basis of referred facts, learned counsel submitted that since provisions of section 5 ibid are not attracted, the case, against the petitioner, is of further inquiry. Learned counsel highlighted that issue of cypher was elaborately thrashed by Supreme Court of Pakistan in case reported as Pakistan Peoples Party Parliamentarian (PPP) through its Secretary General and 4 others Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 4 others (PLD 2022 Supreme Court 574). It was also submitted that even if the provisions of section 5 ibid are attracted, the punishment involved is up to life imprisonment, hence that in its own, calls for granting of bail. Reference was made to case reported as Zahid Malik Vs. The State (1990 P. Cr.LJ 1310). Learned counsel then argued that it is trite principle of interpretation that if there are two possible interpretations of a provision, one favourable to the accused is applicable. Reference was made to case reported as Sahib Ullah Vs. State through A.G. Khyber Pakhtunkhawa and another (2022 SCMR 1806). Learned counsel contended that petitioner is a victim of political victimization and other cases, in which, he was implicated, he has been granted bail. It was also argued that FIR/complaint was deliberately lodged by Secretary, Ministry of Interior, as at the relevant time, adverse political party was in power. Learned counsel contended that access to justice is a fundamental right, which has been reiterated by Supreme Court of Pakistan vide order dated 11.05.2023 in case titled Imran Ahmad Khan Niazi Vs. The State and others (Criminal M.A. No.641 of 2023 in Criminal Petition No.519- 2023). It was contended that case of the accused is based on documentary evidence and there is no chance of his absconsion and where such is the case, bail is normally granted. Reference is made to case reported as Saeed Ahmed Vs. The State (1996 SCMR 1132). It was contended that
---
## Page 3
bail cannot be withheld as punishment. Reliance was made on case reported as Hussain Lawai Vs. State (2022 MLD 405). Reference was also made to case reported as Khawaja Salman Rafique Vs. National Accountability Bureau (PLD 2020 SC 456). Learned counsel further stated that petitioner is an elderly person, aged 71 years, the case, in hand, has been registered against him due to political enmity. It was reiterated that the case is result of incorrect application of law, the law pertains to plans, sketches etc; that there is nothing prejudicial to national security. It was submitted that amendments have been made in Official Secrets Act, 1923 through amending Act in 2023, which cannot be given retrospective effect; that there is no criminality for Prime Minister or Foreign Minister to discuss the contents of cypher received from foreign mission. It was argued that the case does not contain precise allegations and details have been omitted fraudulently; that there is delay of about seventeen months in registration of the case; that entire case is based on statement of co-accused; that after the petitioner left the Office of the Prime Minister, new Prime Minister assumed Office and it was much after that the case was registered, whereas the subsequent Prime Minister or his team, has not been arrayed as accused. Learned counsel then made references to a number of cases to substantiate and highlight that under Official Secrets Act, 1923, mostly Armed Forces personnel have been tried. Reference was made to (R) Imtiaz Ahmed versus The State (1996 PCr.LJ 1287), Akram Awan Vs. The State (2001 YLR 1329), Naveed Ahmed Khan Vs. The State (2011 MLD 521), Zahid Malik Vs. The State (1990 P Cr.LJ 1310), Talat Mehmood Vs. The State (2013 P. Cr. LJ 386), The Field General Court Martial through President, Azad Jammu & Kashmir Vs. Khani Zaman (2019 YLR 1812), Hussain Naqvi Vs. The State (PLD 1989 Lahore 810), Shahnaz Begum Vs. The Hon'ble Judges of High Court of Sindh in Baluchistan (PLD 1971 SC 677), Ghulam Sarwar Zardari Vs. Piyar Ali alias Piyaro (2010 SCMR 624). 8. Mr. Niaz Ullah Khan Niazi, Advocate Supreme Court made supplementary arguments in the bail application by stating that the guilt of the petitioner is still to be determined and in such matters, bail is granted liberally. Reference was again made to case reported as 1990 P. Cr.LJ 1310 supra. 9. Raja Rizwan Abbasi, Advocate Supreme Court appearing as Special Public Prosecutor for FIA made a joint response to the bail application as well as petition for quashing of the FIR. At the very outset, he discarded the submission of the petitioner that the Act is only meant for Armed Forces of Pakistan. It was contended that bare perusal of preamble of the Act shows that it is applicable to all sorts of persons, who fall in its ambit. Learned counsel took the Court through provisions of sections 5 & 9 of the Act to argue that they are very much attracted in the facts and circumstances of instant case. It was submitted that being the Prime Minister of the Country, the petitioner received a cypher copy in the decoded form in his Office and he was supposed to return the same, but he did not, rather kept it with him and tampered its contents for political advantage. It was submitted that 'narrative' built by the petitioner in his speech on 27.03.2022 and subsequent speeches, was that a conspiracy has been hatched in a foreign country to overthrow his government, whereas such was not the case. Learned counsel submitted that matter was taken up before National Security Committee which decided to issue demarche, however, it did not per se meant that there was a conspiracy or controversy against the government of the petitioner. Learned counsel highlighted that learned counsel for the petitioner are misreading contents of section 5 ibid inasmuch as they are conjunctively reading section 5, whereas the words used in section 5 are 'or' and there is comma(') which makes the ingredients or eventualities disjunctive. Learned counsel contended that cognizance was taken by the court on the compliant made by the Secretary, Ministry of Interior, who had been authorized by the 'appropriate government', which in the instant case, is the Federal Government. It was submitted that there is no violation of section 13 of the Act in any manner. Learned counsel submitted that Article 248 of the Constitution is not attracted in the facts and circumstances of instant case inasmuch as statements/speeches made by the petitioner were not in furtherance of his duties rather were made for political benefits. He
---
## Page 4
also submitted that the contention on behalf of petitioner that petitioner was under oath to divulge contents of cypher are also fallacious inasmuch as he was supposed to keep them safe. Learned counsel took the Court through 'Security of Classified Matter in Government Departments' which includes cypher. He also took the Court through guidelines laid down for Procedure for Issue, Circulation and Storage of Classified Messages Received and Issued in Cypher. It was submitted that contents of cypher were never declassified, however in the Cabinet meeting, the matter was taken up but after extensive debate, it was decided that contents are not to be declassified, but only to be shared with few persons including Chief Justice of Pakistan. It was submitted that copies of the cypher were given to certain personnel and could not be made public. In support of his contentions, learned counsel placed reliance on cases reported as Brig. (R) Imtiaz Ahmed versus The State (1996 PCr.LJ 1287), Kulbhushan Parasher versus State (2007 Cri.LJ 3601), State versus Vipin Kumar Jaggi (1975 Cri.LJ 846), Kutbuddin and others versus State of Rajasthan (AIR 1967 Raj 257), (Nishant Pradeep Kumar Aggarwal versus State), The State versus Captain Jagjit Singh (AIR 1962 SC 253), Ranjit Singh versus Nand Lal (1975 Cri.LJ 1416), (Mukesh Saini versus State), Nirmal Puri versus Central Bureau of Investigation 39 (1989 DLT 476), Abdul Kabeer versus The State (PLD 1990 SC 823), Junaid Maseeh versus The State (2022 PCr.LJ 1331), Muhammad Nazir versus Fazal Karim and others (PLD 2012 SC 892), Muhammad Shahbaz Shabeer versus Additional Sessions Judge and 5 others (2023 PCr.LJ 810). It was also submitted that statements made by the prosecution witnesses under section 161 Cr.P.C. clearly show that due to actions/inactions of the petitioner, relations between Pakistan and another foreign country did become strained. 10. In rebuttal, both the learned counsels for the petitioner categorically submitted that section 5 ibid is not attracted and the case in hand is a result of malafide on political motivation. 11. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance. 12. The petitioner is implicated in the afore-noted case. The precise' of the prosecution allegations, against the petitioner, as contained in the case, are reiterated and are that the petitioner, along with co-accused Shah Mehmood Qureshi, the then Foreign Minister, misused and twisted the contents of the cypher received from Parep Washington, U.S.A. on 07.03.2023. It has also been alleged that the petitioner shared the twisted version of the contents of the cypher with unauthorized persons (public at large). The case, against the petitioner, also alleges that on 28.03.2022, the petitioner and others, had a meeting at Bani Gala, Islamabad, where they designed the conspiracy to twist the facts and share the twisted version of facts with public at large and in doing so, they compromised the cypher security system of the State and secret communication method of Pakistani Missions abroad. It is also in the list of allegations against the petitioner that the actions of the accused persons directly/indirectly benefited the interest of foreign powers and caused loss to Pakistan. In this regards, the Secretary, Ministry of Interior, wrote letter dated 12.10.2022 to Director General, Federal Investigation Authority, Islamabad requesting the initiation of inquiry/proceedings in the matter of cypher as per direction by the Federal Government/Cabinet vide its decision dated 30.09.2022 . 13. The submissions made on behalf of the petitioner overlap and due to the said reason, quashing of the FIR as well as bail application, were somewhat heard together and findings are being rendered through this consolidated order. It is pertinent to state here that generally, in bail applications, the matter is not reserved and the result is announced at an early date, however, in the instant case, since elaborate arguments were advanced from both sides cumulatively spanning over eight hours and they were almost the same or overlapped, the bail application and the writ petition for quashing of FIR, were heard together and were reserved.
---
## Page 5
14. It is the stance of learned counsel for the petitioner that provisions of Official Secrets Act, 1923 are applicable to the Armed Forces of Pakistan only. The bare reading of the preamble to the Act shows that law relates to official secrets in Pakistan. In subsection (2) of section 1 of the Act, it is provided that law viz Official Secrets Act, 1923 applies to all citizens of Pakistan and persons in the service of Government wherever they may be. In light of the referred position, it cannot be said that applicability of the Act is solely for Armed Forces of Pakistan. 15. On behalf of the petitioner, much emphasis was laid that section 5 ibid is not applicable in the facts and circumstances due to the fact that there is no 'prohibited place' and that the word 'retention' has been added to section 5 ibid through amendment made in Official Secrets Act by virtue of Official Secrets Amendment Act, 2023, which cannot be given retrospective effect. On the other hand, learned counsel for the respondents has taken pains to show to the Court that section 5 ibid applies. It is only appropriate that before dissecting the said provision of law, it is reproduced for convenience. Section 5 ibid, as amended, reads as follows:- "5. Wrongful communication, etc., of information. (1) If any person having in his possession or control any secret official code or password or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to the activities of Armed Forces during peace and war or relates to anything in such a place, or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or retained or to which he has had access owing to his position as a person who holds or has held office under Government, or as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract-- (a) wilfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it, or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it; or (b) uses the information in his possession for the benefit of any 1 [enemy] or in any other manner prejudicial to the safety of the State; or (c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or (d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the sketch, plan, model, article, note, document, secret official code or password or information; he shall be guilty of an offence under this section. (2) If any person voluntarily receives any secret official code or password or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, password, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section. (3) A person guilty of an offence under this section shall be punishable, (a) where the offence committed is a contravention of clause (a) of sub-section (1) and 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 work of defence, arsenal, naval, military or air force establishment or station, mine, mine-field, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan or in relation to any secret official code, with death, or with imprisonment for a term which may extend to fourteen years; and
---
## Page 6
(b) in any other case, with imprisonment for a term which may extend to two years, or with fine, or with both". The bare reading of section 5 shows that its applicability is disjunctive inasmuch as there is ample use of the word 'or', which breaks the sentence or offence as provided in section 5 ibid. In the broken form, section 5 can be taken to read, if any person having in his possession or control any secret official code, or passwo rd, or any sketch, plan, model, article, note, document or information (a) which relates to or is used in a 'prohibited place' (b) relates to the activities of Armed Forces during peace and war (c) relates to anything in such a place (d) which has been made or obtained in contravention of the Act (e) which has been entrusted in confidence to him by any person holding the office in the Government (f) or he has obtained or retained or to which he had access owing to his position as a person who holds or has held office under Government or as a person holds or held contract made on behalf of Government or as a person who is or has been employee, any person who holds or has held such Office or a contract. 16. It is the case of the prosecution that decoded cypher was entrusted in confidence to the petitioner by persons holding office in the Government i.e. the various officers of the Government (Ministry of Foreign Affairs and Staff of Prime Minister's Office); he obtained such information and document by virtue of his position as a Prime Minister. The actus reus and mens rea of the offence is contained in subsections (a & d) of subsection (1) of section 5 ibid. According to learned counsel for the respondents it is subsections (a & d) which are attracted in the present case inasmuch as decoded cypher was received and then lost by the petitioner and the contents thereof were twisted and communicated to the public at large, which he could not have done, as it was a secret and classified document. In this regard, subsection (a) of section 5(1) which attracts punishment of death or sentence up to 14 years provides that if any person willfully communicates the contents of the document or information to any other person other than the person, who has been authorized to communicate or the court of justice or a person to whom it is in the interest of the State, his duty to communicate, or as provided in subsection (d) of section 5(1) ibid, he failed to take reasonable care of or so conducts himself as to endanger the safety of the document, sketch, plan, model, article note, document, secret official code or password or information. It is pertinent to observe that punishment provided for the offences in subsections (b to d) is a term, which may extend to two years or with fine or with both. In the referred backdrop, reading the contents of section 5 ibid in juxtaposition with the allegations leveled 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 cypher, 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. He was not authorized to do so as per section 5 ibid, it is reiterated that petitioner received the contents/information contained in cypher 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)]. 18. In so far as the aspect of losing the cypher is concerned, subsection (d) of section 5(1) is attracted which attracts punishment up to two years. 19. The question whether petitioner was authorized to divulge the contents of cypher 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 is part of the oath of the
---
## Page 7
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. It is part of the Constitution of Pakistan that Islam is the state religion of Pakistan and by virtue of Article 2A ibid of the Constitution and the principles and provisions set out in the Objectives Resolution are made substantive part of the Constitution. The life of people…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.