Imran Khan and Shah Mahmood Qureshi’s Bail in Cypher Case

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Imran Khan and Shah Mahmood Qureshi’s Bail in Cypher Case

A three-member bench of the Supreme Court has recently allowed Imran Khan and Shah Mahmood Qureshi to be released on bail in Cypher case wherein they were alleged to disclosed information which were supposed to be kept secret and not to be disclosed. The Court noted that the case is clearly one of further inquiry and further incarceration of the petitioners would not serve any purpose. They were no more required as per law to be kept in jail. Bail was allowed to both of the petitioners unanimously.

Additional Note by Justice Athar Minallah:

However, the significant thing about this judgment is the Additional Note written by Justice Athar Minallah. He has tried to build a new jurisprudence in political cases while analysing the chequered history of Pakistani politics. He holds that legitimacy of the authority of a government is dependent on fair and free elections and elections are nothing but the expressionย  of the will of the people. If the very will of the people is compromised, the whole elections become questionable and this would shake the foundation of a democratic set-up. Similarly, if a leadership of a political party or followers thereof are put in prison in the time of election, this amounts to denying equal treatment to all stake holders in the election. Such an election can in no way be said to be fair election where every party or the voters have equal say. He holds that people cannot be denied equal treatment at the time of election in choosing their representatives.

Justice Minallah further laments our political and judicial history and states that the undemocratic elite struck for the first time when the general assembly was dissolved and the same was legitimised by the Federal Court by contriving the so called doctrine of necessity. This would not have happened if the judiciary had not been complicit with the undemocratic elite. He expresses grief and statesย  that almost all the Prime Ministers were prematurely removed from their offices and were sent to jail. No election was ever held in our entire history with equal treatment to all the political parties and the voters alike. He says that in the most recent elections of 2018 a ruling party was denied equal treatment in the general election and the same is repeating now.

The new jurisprudence he wishes to develop in his additional note is that bail should be granted to political leaders in time of elections asย  a rule and declined in exceptional circumstances so that they can participate in the election process which is the very bases of our democratic system. He premises his opinion on the ground that there can be no greater public interest and good than ensuring fair and free general elections, and for this purpose, the political leaders and candidates for contesting the elections must be free to participate in the electoral process. Otherwise, the electoral process would be undermined.

 

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