IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
PRESENT: 
 
 
Mr. Justice Umar Ata Bandial, CJ 
Mr. Justice Ijaz ul Ahsan  
 
 
Mr. Justice Munib Akhtar  
 
 
Mr. Justice Syed Hasan Azhar Rizvi 
 
 
Mr. Justice Shahid Waheed  
 
 
 
 
C.M.A. NO. 3932 OF 2023  
IN 
CONSTITUTION PETITION NO. 14 OF 2023 
 
AND CONSTITUTION PETITION NOS. 14 to 17 OF 2023 
(Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe 
into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973) 
 
 
Abid Shahid Zuberi, Advocate Supreme 
Court of Pakistan 
(in Const. P. 14 & CMA 3663/2023) 
 
 
 
Muqtedir Akhtar Shabbir  
(in Const. P. 15 of 2023) 
 
 
 
Imran Ahmad Khan  
(in Const. P. 16 of 2023) 
 
 
 
Riaz Hanif Rahi, Advocate Supreme Court 
of Pakistan  
(in Const. P. 17 of 2023) 
 
 
…Petitioner(s) 
Versus 
 
Federation of Pakistan through Secretary, 
Cabinet Division, Islamabad and others  
(in Const. P. 14/23 & CMA 3663/23 & Const.P.15 of 2023) 
               
 
 
 
 
Federation 
of 
Pakistan 
through 
its 
Secretary 
Cabinet, 
Pak 
Secretariat, 
Islamabad and others  
(in Const. P. 16 of 2023) 
 
 
 
Government 
of 
Pakistan 
through  
Secretary Cabinet Division, Islamabad 
and another  
(in Const. P. 17 of 2023) 
…Respondent(s) 
 
 
For the petitioner(s)  : Mr. M. Shoaib Shaheen, ASC  
Mr. Abid Shahid Zuberi, ASC 
Mr. M. Umer Lakhani, ASC 
assisted by:  
Agha Ali Durrani, Adv. 
Ms. Minahil Malik, Adv. 
Ms. Amna Khalili, Adv.  
(in Const. P. 14/23) 
CMA No.3932/2023 
2
 
Mr. Shakeel-ur-Rehman, ASC 
Mr. Muqtedir Akhtar Shabbir, ASC 
(in Const. P. 15/23) 
 
Nemo 
(in Const. P. 16/23) 
 
In-person 
(in Const. P. 17/23) 
 
 
 
For the Federation  
: Mr. Mansoor Usman Awan, Attorney 
General for Pakistan 
Ch. Aamir Rehman, Addl. AG 
Raja M. Shafat Abbasi, DAG  
Assisted by: 
Barrister Maryam Ali Abbasi, Adv. 
Mr. Saad Javaid Satti, Adv. 
Ms. Maryam Rasheed, Adv. 
Ms. Mehwish Batool, Adv. 
Mr. Rashdeen Nawaz Kasuri, Addl. 
AG 
 
 
 
For PEMRA 
: Mr. Amanullah Kanrani, ASC 
 
 
 
For PTA 
: Mr. Afzal Khan, ASC 
 
 
 
Date of hearing  
: 06.06.2023 
 
J U D G M E N T 
  
 
UMAR ATA BANDIAL, CJ: This judgment shall 
decide the Federal Government’s CMA No.3932 of 2023 
(“recusal application”), filed in Constitution Petition No.14 of 
2023, which seeks the recusal of three learned Members of 
the Bench, namely, Chief Justice Umar Ata Bandial (“CJ”); 
Justice Ijaz ul Ahsan; and Justice Munib Akhtar. However, as 
will be explained later in the judgment the prayer in the 
recusal application was ultimately confined only to the extent 
of the CJ.  
Factual Background 
2.  
 
The events leading up to the recusal application 
are that on 14.01.2023 and 18.01.2023 respectively the 
CMA No.3932/2023 
3
Provincial Assemblies of Punjab and Khyber Pakhtunkhwa 
were dissolved. Article 224(2) of the Constitution of the 
Islamic 
Republic 
of 
Pakistan, 
1973 
(“Constitution”) 
mandates:  
“224. Time of Election and bye-election. 
… 
(2) When the National Assembly or a 
Provincial Assembly is dissolved, a general 
election to the Assembly shall be held within 
a period of ninety days after the dissolution, 
and the results of the election shall be 
declared not later than fourteen days after 
the conclusion of the polls.” 
(emphasis supplied) 
Under the said constitutional direction it was imperative for 
the General Elections to the Punjab Assembly to be held on or 
before 14.04.2023 and to the Khyber Pakhtunkhwa Assembly 
on or before 18.04.2023. However, despite the strict deadline 
no progress was made by the authorities responsible for 
holding the General Elections to announce the date of the 
same. As a result, writ petitions were filed in the Lahore High 
Court and the Peshawar High Court for a direction to these 
authorities to announce the date of General Elections to the 
Punjab and Khyber Pakhtunkhwa Assemblies. The Lahore 
High Court vide its judgment dated 10.02.2023 declared the 
Election Commission of Pakistan (“ECP”) as the competent 
authority to give the date of election. This judgment was 
immediately challenged by the Governor, Punjab and the ECP 
through Intra Court Appeals. The writ petition filed in the 
Peshawar High Court, however, remained pending.  
3.  
 
Taking stock of the 90 day constitutional deadline 
expiring in mid-April for holding the General Elections and 
CMA No.3932/2023 
4
the indifference of the concerned authorities to fix the date for 
such election, a two Member Bench of the Court comprising 
Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar 
Naqvi on 16.02.2023 recommended the CJ to take Suo Motu 
notice of the delay in the holding of the General Elections to 
the Provincial Assembly of Punjab.1 The CJ was collecting 
relevant information on the subject from the respective High 
Courts when two days later on 18.02.2023 the Speakers of 
the Punjab and the Khyber Pakhtunkhwa Assemblies jointly 
filed a Constitution Petition in the Court seeking the fixation 
of date of the General Elections to the two dissolved Provincial 
Assemblies. At that time the facts of note were that the 
custodians of both the Provincial Assemblies had approached 
the Court for relief; that a strict constitutional deadline for 
holding the General Elections was in the field which required 
compliance; and that the information from the two High 
Courts showed that the pending proceedings were not 
progressing. In the above circumstances, the CJ following the 
rule laid down in SMC No. 4 of 2021 (PLD 2022 SC 306) 
accepted the recommendation made by the two learned 
Judges of the Court advising Suo Motu notice of the delay in 
announcing the election date. He accordingly invoked Suo 
Motu jurisdiction on 22.02.2023 and constituted a 9 Member 
Bench to hear the matter on 23.02.2023.  
                                                
1 CP No.3988/2022 
<https://www.supremecourt.gov.pk/downloads_judgements/c.p._3988_2022.pdf > 
CMA No.3932/2023 
5
4.  
 
Meanwhile on 16.02.2023 a Twitter account with 
the name of indibell released three audio recordings of alleged 
telephonic conversations between the following persons:  
i. 
Mr. Chaudhary Pervaiz Elahi, ex-Chief Minister, Punjab 
and Mr. Arshad Jhoja, ASC; 
ii. 
Mr. Chaudhary Pervaiz Elahi and Mr. Abid Zuberi, ASC, 
President Supreme Court Bar Association of Pakistan, 
the petitioner in Constitution Petition No.14 of 2023; 
and 
iii. 
Mr. Chaudhary Pervaiz Elahi and Justice Sayyed 
Mazahar Ali Akbar Naqvi, a sitting Judge of the 
Supreme Court.  
Over a period of two months or so thereafter, more audio 
recordings of alleged telephonic conversations concerning 
known personalities or their families were released by indibell. 
Amongst these audio leaks a recording allegedly involving the 
mother-in-law of the CJ (“Relative”) was released by indibell 
on 23.04.2023. Without verifying either their authenticity or 
the identity and credibility of their leaker the Federal 
Government immediately endorsed the audio recordings to 
denounce the Judges mentioned therein for compromising the 
independence of the Judiciary. Accusatory press conferences 
were held by incumbent Federal Ministers citing the audio 
recordings as proof that the Superior Judiciary was 
prejudiced against the Government of the day.  
5.  
 
Such vilification of Superior Court Judges by 
elected Government functionaries continued before the media 
and sometimes even in Parliament. Finally action in the 
matter was taken by the Federal Government on 19.05.2023. 
CMA No.3932/2023 
6
On this date in exercise of its power under Section 3 of the 
Pakistan Commissions of Inquiry Act, 2017 the Federal 
Government formed a three member Inquiry Commission 
(“Commission”) 
vide 
SRO 
No.596(I)/2023 
(“impugned 
notification”) with the mandate, inter alia:  
“6… 
(i) to inquire into the veracity of audio leaks 
allegedly concerning including the Judiciary; 
(a) call between ex-Chief Minister Punjab and 
an advocate regarding a sitting Judge of the 
Supreme Court of Pakistan, (b) between ex-
Chief Minister, Punjab and an advocate 
regarding fixation of some cases before a 
particular Bench of the Supreme Court of 
Pakistan, 
(c) 
between 
ex-Chief 
Minister 
Punjab and a sitting Judge of the Supreme 
Court of Pakistan, (d) between Retired Chief 
Justice of Pakistan and a senior lawyer, (e) 
between a lawyer and a journalist on the 
outcome of a case before a particular Bench 
of Supreme Court of Pakistan, (f) between 
former Prime Minister of Pakistan and his 
party colleague about their links in the 
Supreme Court of Pakistan, (g) between 
mother in law of the Chief Justice of Pakistan 
and wife of a lawyer regarding cases in the 
Supreme Court of Pakistan and hoping for 
un-constitutional rule[,] (h) between son of a 
former Chief Justice of Pakistan and his 
friend mentioning his father in a political 
role; 
… 
(iii) to determine violation, if any, of integrity 
of the process of administration of justice, 
independence of Judiciary, right to fair trial 
and equality of citizens; 
… 
(v) 
to 
determine 
as 
to 
whether 
any 
disciplinary proceedings are attracted; 
… 
(viii) if the stated audios are fake or 
fabricated, 
to 
inquire 
into 
and 
fix 
responsibility with regards, as to who is 
making these and recommend action to be 
taken in this regard;…” 
(emphasis supplied) 
6.  
 
It is clear from clauses 6(i), (iii), (v) and (viii) set 
out above that the Federal Government desired the 
CMA No.3932/2023 
7
Commission to first inquire into the veracity of the audio 
recordings. If the same turned out to be genuine and their 
content disclosed the violation of ‘integrity of the process of 
administration of justice and the independence of the 
Judiciary’ then the Commission was to determine whether 
disciplinary proceedings are attracted. Prima facie the 
impugned notification does not give the Judges of the 
Superior Courts named in the audios immunity from such 
proceedings. On the other hand, if the Commission concluded 
that the audio recordings are fake or fabricated then under 
clause 6(viii) action was to be recommended by it against the 
persons responsible for making the audios.  
7.  
 
The persons selected by the Federal Government 
for carrying out these functions of the Commission are 
serving Superior Court Judges, namely, Justice Qazi Faez Isa, 
Senior Puisne Judge of the Supreme Court (Chairperson); 
Justice Naeem Akhtar Afghan, Chief Justice of Balochistan 
High Court (Member); Justice Aamer Farooq, Chief Justice of 
Islamabad High Court (Member). It is a matter of record that 
the Federal Government did not inform, consult with or 
obtain the consent of the CJ before constituting the 
Commission. On 22.05.2023 the Commission held its first 
hearing and passed an order on the same date (the details are 
not relevant for present purposes).  
8.  
 
Soon thereafter the titled Constitution Petitions 
bearing Nos.14 to 17 of 2023 (“Const P Nos.14 to 17 of 
2023”) were filed in Court challenging the vires of the 
CMA No.3932/2023 
8
impugned notification. These were duly registered and listed 
for hearing before the present Bench. On the first date of 
hearing of the titled petitions i.e., 26.05.2023 the learned 
counsel for the petitioner in Constitution Petition No.14 of 
2023 formulated the common questions of law requiring 
determination in the petitions. These are: 
i. 
Whether 
the 
impugned 
notification 
violates 
the 
fundamental constitutional principle of separation of 
powers by vesting the Executive with the power to 
investigate alleged judicial misconduct through a 
Commission comprised of Superior Court Judges and in 
case of its proof to recommend appropriate disciplinary 
action;  
ii. 
Whether the mandate of the Commission encroaches 
into the exclusive jurisdiction conferred on the Supreme 
Judicial Council by Article 209 of the Constitution 
(which lays down the process for and grounds of 
accountability of Superior Court Judges); 
iii. 
Whether the impugned notification negates a salient 
feature of the Constitution, namely, the independence of 
the Judiciary by interfering with its functioning in 
bypassing the CJ for unilaterally picking Superior Court 
Judges as Members of the Commission; and  
iv. 
Whether in the absence of a law allowing for the 
surveillance and recording of private communication 
between citizens, the audios are a breach of Article 14 of 
the Constitution (right of privacy of home) and the 
dictum of the Court laid down in Benazir Bhutto Vs. 
President of Pakistan (PLD 1998 SC 388).  
During the course of the same hearing the learned Attorney 
General for Pakistan (“AG”) made an oral request to the 
Bench that one of us, namely, the CJ may consider recusing 
CMA No.3932/2023 
9
himself from the Bench for the reason that one of the audio 
recordings selected for probe by the Commission allegedly 
contains a conversation of his Relative that mentions him. 
The order dated 26.05.2023 disapproved this oral request of 
the learned AG for failing to refer to any implicating 
conversation of the Relative and/or to the particulars of the 
allegation levelled against the CJ. However, as important 
constitutional questions of law were raised and explained by 
the learned counsel for the petitioner in Constitution Petition 
No.14 of 2023 the said order of 26.05.2023 granted the 
interim relief sought by him in CMA No.3663 of 2023 in the 
following terms: 
“8. CMA NO.3663 OF 2023 IN CONST.P.14 
OF 2023.  
Learned counsel for the petitioner also prayed 
for interim relief since the Commission has 
already started functioning and has made an 
order on 22.05.2023 and the next meeting of 
the Commission is scheduled for 27.05.2023. 
In the circumstances, till the next date of 
hearing, the operation of the impugned 
notification 
No.SRO.596(I)/2023 
dated 
19.05.2023 
issued 
by 
the 
Federal 
Government is suspended as is the order 
dated 22.05.2023 made by the Commission 
and in consequence thereof proceedings of 
the Commission are stayed.” 
(emphasis supplied) 
The matter was adjourned to 31.05.2023 when the learned 
AG pressed the freshly filed recusal application on which 
notice was issued to the parties for arguments of the learned 
counsel on 06.06.2023.  
Submissions of Counsel 
CMA No.3932/2023 
10
9.  
 
At the outset before commencing his submissions 
on the recusal application the learned AG recorded two 
preliminary points:  
i. 
First, that he would not be pressing for the recusal of 
either Justice Ijaz ul Ahsan or Justice Munib Akhtar; 
and 
ii. 
Second, that the sole ground for seeking the recusal of 
the CJ is his alleged conflict of interest in the matter on 
account of his Relative. 
Our judgment is therefore confined to the prayer made for the 
recusal of the CJ from continuing to sit on the Bench hearing 
Const P Nos.14 to 17 of 2023.  
10.   
In support of the recusal application, the learned 
AG primarily relied on clause 1 of Article IV of the Code of 
Conduct for Judges of the Supreme Court and High Courts 
(“CoC”) which reads: 
“A Judge must decline resolutely to act in a 
case involving his own interest, including 
those of persons whom he regards and treats 
as near relatives or close friend.” 
He argued that allegedly the Relative of the CJ was conversing 
in one of the audio recordings which had been selected for 
probe by the impugned notification. The vires of that 
notification are under challenge in Const P Nos.14 to 17 of 
2023. Therefore, to avoid a conflict of interest and to maintain 
the appearance of impartiality the CJ should recuse himself 
from the Bench. More so when the rule of necessity did not 
require his presence on the Bench because even after his 
recusal there would be a sufficient number of Judges 
available for a reconstituted 5 Member Bench to hear and 
CMA No.3932/2023 
11
decide the said petitions. He cited Suo Motu Case No.5 of 
2012 (PLD 2012 SC 664) to demonstrate that in the past 
Judges of the Court did not preside over or sit on Benches 
that were hearing matters involving the interests of their 
relatives. That in furtherance of the said practice the CJ 
should disassociate from the Bench. However, he reiterated in 
categorical terms that it was not the assertion of the Federal 
Government that the CJ was either biased or that he had any 
pecuniary or proprietary interest in the decision of Const P 
Nos.14 to 17 of 2023. 
11.   
In response, the learned counsel for the petitioner 
in Constitution Petition No.14 of 2023, Mr. Shoaib Shaheen, 
ASC submitted that the recusal application should be 
rejected. Otherwise its acceptance would validate a practice of 
harassing Judges by first maliciously uploading their 
unverified 
audios, 
recorded 
secretly 
and 
unlawfully, 
anonymously on an unregulated social media platform and 
then by relying on those audios to seek the recusal of such 
Judges from hearing cases. He also referred to the decisions 
rendered in Justice Qazi Faez Isa Vs. President of Pakistan 
(2019 SCMR 1875); Independent Media Corporation Vs. 
Federation of Pakistan (PLD 2014 SC 650); Federation of 
Pakistan Vs. Muhammad Nawaz Sharif (PLD 2009 SC 284); 
The President Vs. Mr. Justice Shaukat Ali (PLD 1971 SC 
585) to show that Judges of the Court have been reluctant to 
recuse from cases on mere allegations of bias which is a more 
serious allegation than conflict of interest. In rebuttal, the 
CMA No.3932/2023 
12
learned AG emphasised that in this matter conflict of interest, 
and not bias, has been alleged therefore the judgments 
quoted by Mr. Shoaib Shaheen, ASC are inapplicable.  
12.   
After hearing the learned counsel for both sides 
the Bench reserved its judgment. Our decision on the recusal 
application and reasons for arriving at the same are given 
below. 
Conflict of Interest and Bias 
13.   
During his arguments, the learned AG relied on 
Article IV of the CoC (produced above in para 10) to 
emphasise the principle of conflict of interest mentioned 
therein. Clearly, the said principle would be attracted if any 
interest of the CJ or that of his Relative was indicated in the 
lis. However, the Court’s query as to what interest of the CJ 
or his Relative is involved in Const P Nos.14 to 17 of 2023 
was neither answered nor explained by the learned AG. He 
candidly admitted though that no pecuniary or proprietary 
interest of either the CJ or his Relative was tied with the fate 
of the said petitions. When asked to explain the term ‘conflict 
of interest’ the learned AG merely clarified that as a ground of 
recusal it was distinct from ‘bias.’ The latter being an 
allegation that the Federal Government had not raised. The 
diffidence of the learned AG to respond to the Court’s 
questions 
denotes 
that 
the 
objection 
of 
the 
Federal 
Government may have been raised nonchalantly, possibly to 
delay a decision on the merits or to harass the concerned 
Judge. Nevertheless, to consider the Federal Government’s 
CMA No.3932/2023 
13
vague plea with utmost solemnity an effort has been made to 
understand it. For this purpose the meaning and scope of the 
term ‘conflict of interest’ and its difference, if any, from ‘bias’ 
have been examined. Relevant passages from two treatises are 
produced below for reference: 
“Corpus Juris Secundum (Volume 48A) 
§109: The words “bias” and “prejudice”, as 
used in connection with the disqualification 
of a judge, refer to the mental attitude or 
disposition of the judge toward a party to the 
litigation and not to any views that he might 
entertain 
regarding 
the 
subject 
matter 
involved. Bias and prejudice mean a hostile 
feeling or spirit of ill will against one of the 
litigants, or undue friendship or favoritism 
toward one. This requires antagonism or 
animosity toward the affiant or his counsel or 
favoritism towards the adverse party or his 
counsel… 
 
§120: Ordinarily, the interest of a judge, in 
order that he may be disqualified, must be in 
the subject matter of the litigation, and not 
merely in a legal question involved… 
The interest in the subject matter of the 
litigation which disqualifies a judge is a direct 
pecuniary or property interest, or one which 
involves some individual right or privilege, 
whereby a liability or pecuniary gain must 
occur on the outcome of the suit. The interest 
that disqualifies a judge is a personal 
interest… 
 
American Jurisprudence, 2nd Edn 
§98: It is well settled that a judge is 
disqualified to sit in an action where he has 
any pecuniary interest in its result, or owns 
property that will be affected by its outcome. 
A disqualifying pecuniary or property interest 
is an interest in the event or subject matter of 
the action or in the judgment to be rendered 
therein such that by the judgment the judge 
will be directly affected by a pecuniary gain or 
loss.  
According to some of the cases, the interest 
which will disqualify a judge must be 
pecuniary in its nature, or must be a 
pecuniary or property interest in the action or 
its result. But other courts have held that the 
interest need not necessarily be a pecuniary 
one, but that it may be a personal one to the 
judge… 
 
§167: The words “bias” and “prejudice” refer 
to the mental attitude or disposition of the 
judge toward a party to the litigation, and not 
CMA No.3932/2023 
14
to any views that he may entertain regarding 
the 
subject 
matter 
involved. 
Bias 
and 
prejudice mean a hostile feeling or spirit of ill 
will against one of the litigants or undue 
friendship or favoritism toward one…” 
(emphasis supplied) 
14.   
The afore-quoted excerpts show that conflict of 
interest and bias are indeed two distinct grounds on which a 
party may seek the recusal of a Judge from hearing a case. 
Whilst conflict of interest is related to the Judge’s interest in 
the subject matter of a particular case, bias is concerned with 
his state of mind and his feelings towards the parties 
appearing before him. Since the learned AG confined his 
submissions to the ground of conflict of interest only and not 
on bias, it is clear that the Federal Government does not 
anticipate any prejudice from the CJ.  
Conflicts of Interest Entailing Disqualification 
15.   
As noted above, a conflict of interest is related to 
the subject matter of the litigation. This means that the 
Judge, whose recusal is being sought, must have a direct 
pecuniary, proprietary or personal interest in the litigation. A 
classic example of a Judge having a pecuniary interest in a 
litigation is Dimes v Grand Junction Canal Proprietors [10 
ER 301 (1852) (HL)]. In that case the (then) Lord Chancellor, 
Lord Cottenham, owned a substantial shareholding in Grand 
Junction Canal which was an incorporated body. In a suit 
filed by Grand Junction Canal the Vice-Chancellor granted 
the relief sought. The appeal came before the Lord Chancellor 
who affirmed the decision of the Vice-Chancellor. The matter 
then came before the House of Lords which reversed the 
CMA No.3932/2023 
15
decree of the Lord Chancellor and Lord Campbell, in what is 
now regarded as the classic formulation on disqualification on 
the basis of interest, held: 
“ …No one can suppose that Lord Cottenham 
could be, in the remotest degree, influenced 
by the interest that he had in this concern; 
but, my Lords, it is of the last importance 
that the maxim that no man is to be a judge 
in his own cause should be held sacred. And 
that is not to be confined to a cause in which 
he is a party, but applies to a cause in which 
he has an interest…” 
(emphasis supplied) 
16.   
It is not the case of the Federal Government that 
the CJ or his Relative have any direct pecuniary and/or 
proprietary interest in the present matter (refer para 7, pg.5 of 
the recusal application). Instead it alleges, as noted above in 
para 10, that because the CJ’s Relative is involved in one of 
the audio recordings selected for probe by the Commission, 
therefore, he has a direct personal interest in the outcome of 
these Constitution Petitions. Consequently, he ought to 
recuse himself from hearing the case. Personal interest has 
been defined in Halsbury’s Laws of England (Volume 61A, 
2018) as follows: 
“33. 
…The 
most 
obvious 
form 
of 
direct personal 
interest is 
a 
financial 
interest… However, financial interests are 
merely one form of direct personal interest. 
The rule also applies if the adjudicator's 
decision will lead to the promotion of a cause 
in which he is involved together with one of 
the parties.” 
(emphasis supplied) 
Apart from pecuniary (financial) interest of a Judge, which 
has already been ruled out because the same was neither 
alleged nor pressed, the afore-noted comment in Halsbury’s 
CMA No.3932/2023 
16
Laws explains that non-pecuniary interests are also included 
in personal interests. The ‘promotion of a cause’ has been 
cited as an example of one such interest. This particular 
ground was created by the House of Lords in R v Bow Street 
Metropolitan Stipendiary Magistrate, ex p Pinochet 
Ugarte (No 2) ([2000] 1 AC 119) for setting aside its earlier 
decision wherein Lord Hoffman and two other Judges (by a 
majority of 3:2) had held that Augusto Pinochet, being the 
former Head of State of Chile, was not entitled to immunity 
and could be arrested, extradited and prosecuted for his 
alleged crimes against humanity. In this earlier decision of 
the House of Lords Amnesty International (“AI”) was an 
intervener and argued in support of the proposition that 
Pinochet was not entitled to immunity. After the earlier 
decision was released information came to light that Lord 
Hoffman was a director of Amnesty International Charity Ltd 
(“AICL”), a registered charity which undertakes charitable 
works for AI. As a result, Pinochet lodged a petition in the 
House of Lords with the prayer that either the earlier decision 
be set aside or the opinion of Lord Hoffman be discarded. 
Ultimately, the House of Lords granted the former relief. Lord 
Browne-Wilkinson, speaking for the Bench, observed: 
“ …Hitherto only pecuniary and proprietary 
interests 
have 
led 
to 
automatic 
disqualification… 
 
…My Lords, in my judgment, although the 
cases 
have 
all 
dealt 
with 
automatic 
disqualification on the grounds of pecuniary 
interest, there is no good reason in principle 
for so limiting automatic disqualification. The 
rationale of the whole rule is that a man 
cannot be a judge in his own cause. In civil 
CMA No.3932/2023 
17
litigation the matters in issue will normally 
have an economic impact; therefore a judge is 
automatically disqualified if he stands to 
make a financial gain as a consequence of his 
own decision of the case. But if, as in the 
present case, the matter at issue does not 
relate to money or economic advantage but is 
concerned with the promotion of the cause, 
the rationale disqualifying a judge applies 
just as much if the judge's decision will lead 
to the promotion of a cause in which the 
judge is involved together with one of the 
parties.” 
(emphasis supplied) 
17.   
The principle laid down above by the House of 
Lords treats the promotion of a cause by a Judge to be in 
conflict with his constitutional duties. However, the learned 
AG did not even specify, let alone elaborate, what cause, if 
any, the CJ may be interested in promoting by sitting on the 
Bench hearing Const P Nos.14 to 17 of 2023. The failure of 
the learned AG to identify the specific cause and hence the 
interest of the CJ or of his Relative that may be affected by 
the said petitions renders the allegation of the Federal 
Government against the CJ fanciful. Moreover, the Relative of 
the CJ is neither a party in these petitions nor is she claimed 
to be involved in the controversy under adjudication before 
the Court. In these circumstances, Article IV of the CoC has 
no application to the present case. Therefore, it appears that 
an illusory claim of conflict of interest has been alleged 
against the CJ by the Federal Government to prima facie 
postpone a decision in the instant Constitution Petitions. 
Such an object appears to be consonant with the Federal 
Government’s strategy, discussed later in the judgment, of 
CMA No.3932/2023 
18
blocking or delaying the Court’s decisions on questions of law 
requiring the interpretation of constitutional principles.  
18.   
There is a possibility that the Court’s decision on 
the questions of law raised in the titled petitions (refer para 8 
above) may result in the impugned notification being struck 
down. That result would relieve the Judges implicated in the 
said notification from being scandalised in the public without 
the authenticity of the audios and the identity and credibility 
of their leaker being established or any allegation of 
wrongdoing being levelled against them. It becomes apparent 
then that in the present petitions the Court is acting solely to 
safeguard the public cause of upholding the cherished values 
of separation of powers, the independence of the Judiciary 
and the Fundamental Rights of privacy and dignity of 
persons. Accordingly, no personal interest of the CJ can 
inhere in the subject matter of these petitions that pertain 
only to the determination of constitutional questions of public 
importance. In fact, to even assume a personal interest of the 
CJ in the titled petitions a cause promoted by him or a benefit 
or liability accruing to him would need to be positively 
identified in the subject matter of the petitions. However, the 
learned AG has failed to do that. Therefore, the CJ cannot be 
expected to abandon his constitutional duty as a Judge 
hearing Const P Nos.14 to 17 of 2023 on the basis of an 
unknown and imaginary interest. The law is clear that for an 
CMA No.3932/2023 
19
interest to attract the disqualification of a Judge from a case, 
the same needs to be direct and certain: 
“American Jurisprudence, 2nd Edn 
S99: To work a disqualification of a judge, the 
interest must be a direct, certain, and 
immediate interest and not one which is 
indirect, contingent, incidental, or remote… 
 
Corpus Juris Secundum (Volume 48A) 
S120: …Although it has been broadly stated 
that a judge should not sit in any case in 
which he is directly or indirectly interested, to 
disqualify a judge, his interest in the subject 
matter of the litigation, must be direct, real, 
and certain, and not one which is merely 
incidental, remote, contingent, or possible, 
speculative, unreal, or merely theoretical.” 
(emphasis supplied) 
Necessity 
19.   
On account of his inability to disclose any direct 
and certain interest of the CJ or of his Relative in Const P 
Nos.14 to 17 of 2023 the learned AG took the plea that the 
Federal Government’s request for the CJ’s recusal from the 
Bench would not offend the rule of necessity. That the CJ’s 
withdrawal will not prevent the formation of a new 5 Member 
Bench to hear and decide the titled petitions. Whether the 
learned AG’s argument has any relevance to the prayer made 
in the recusal application requires firstly, understanding the 
meaning of the term ‘necessity’ and secondly, ascertaining the 
purpose of and the circumstances in which the said principle 
can be invoked in the context of judicial proceedings. The rule 
was explained in the case of Justice Shaukat Ali (supra) in 
these words: 
“ …“the rule of disqualification must yield to 
the demands of necessity, and a Judge or an 
CMA No.3932/2023 
20
officer exercising judicial functions may act in 
a proceeding wherein he is disqualified even 
by interest… if his jurisdiction is exclusive 
and there is no legal provision for calling in a 
substitute, so that his refusal to act would 
destroy the only tribunal in which relief could 
be had and thus prevent a termination of the 
proceeding” (vide American Jurisprudence, 
Vol 30, page 770)…” 
(emphasis supplied) 
This dictum was subsequently quoted with approval by the 
Court in the cases of Federation of Pakistan Vs. 
Muhammad Akram Shaikh (PLD 1989 SC 689) and Parvez 
Musharraf Vs. Nadeem Ahmed (Advocate) (PLD 2014 SC 
585).  
20.   
The above passage shows that even when a Judge 
suffers from a valid disqualification, the rule of necessity 
permits him to sit on the Bench if his jurisdiction is exclusive 
or if no substitute is provided by the law in his place. 
However, as held above there is no direct and certain interest 
of the CJ in these Constitution Petitions. Therefore, in the 
absence of a valid ground for disqualification necessity has no 
application to the present matter. It may also be observed 
that the learned AG’s submission ignores another crucial 
aspect of the rule of necessity, namely, that it constitutes a 
defence for a disqualified Judge to remain a part of the Bench 
hearing a case rather than being a means for reinforcing a 
litigant’s challenge to the presence of a Judge on the Bench. 
For these reasons, the learned AG’s plea of necessity lacks 
force and is therefore refused.  
Islamic Perspective on Recusal 
CMA No.3932/2023 
21
21.   
Whilst the law of the land grants a Judge 
discretion to recuse from a case if his disqualification is 
sought, the Holy Quran provides the criteria for guiding the 
exercise of such discretion:  
“Surah An-Nisa, Verse 135 
O ye who believe! stand out firmly for justice, 
as witnesses to Allah, even as against 
yourselves, or your parents, or your kin, and 
whether it be (against) rich or poor: for Allah 
can best protect both. Follow not the lusts (of 
your hearts), lest ye swerve, and if ye distort 
(justice) or decline to do justice, verily Allah is 
well-acquainted with all that ye do.” 
(emphasis supplied) 
(Translation by Yusuf Ali) 
The Holy Quran makes it explicit that believers are expected 
to uphold the scales of justice even if such a course of action 
goes against their own interest or that of their parents or 
relatives. This is because of the higher duty to be impartial 
and to remain uninfluenced by any interest whilst dispensing 
justice that is owed by a Muslim to the Almighty. Therefore, 
there is no rule of Islamic Law requiring a Judge to refrain 
from administering justice in matters in which his personal 
interest or that of his relatives is involved. The Judge is 
nevertheless under the onerous obligation that he must not 
be swayed by any extraneous considerations when deciding a 
matter. This duty is also reflected in the Oath of Office taken 
by a Superior Court Judge: ‘[t]hat I [Judge] will not allow my 
personal interest to influence my official conduct or my official 
decisions’ (ref: Third Schedule to the Constitution). It is 
evident from the above discussion that even if an interest of 
the CJ had existed in the subject matter of Const P Nos.14 to 
CMA No.3932/2023 
22
17 of 2023 that would still not prohibit him from sitting on 
the Bench hearing the said Constitution Petitions.2  
22.   
In this respect, Pakistani jurisprudence also leaves 
it to the discretion of the Judge to decide whether he will be 
able to perform his legal duty of administering justice in a 
particular case where either conflict of interest or bias (or 
both) is alleged against him. Reliance in this regard is placed 
on Independent Media Corporation (supra) at para 13; 
Federation of Pakistan Vs. Muhammad Nawaz Sharif (PLD 
2009 SC 284) at para 27; Islamic Republic of Pakistan Vs. 
Abdul Wali Khan (PLD 1976 SC 57) at pg.188. In these cases 
the following allegations were levelled against the Judges of 
the Court: 
i. 
In Independent Media Corporation (supra) the recusal 
of Justice Jawwad S. Khawaja was sought on account of 
his sister-in-law’s brother being involved in the case 
before the Court. 
ii. 
In Muhammad Nawaz Sharif (supra) the recusal of 
Judges who had taken oath under the Provisional 
Constitution Order, 2007 was sought on the basis that 
the petitioner had expressed strong reservations against 
such acts. 
iii. 
In Abdul Wali Khan (supra) the recusal of two learned 
Judges was sought on the ground that they were 
previously associated with the case being prepared for 
the banning of the National Awami Party which was 
headed by the petitioner, Abdul Wali Khan. 
However, rejecting the contentions of the parties seeking 
recusal in each of the above cases, the Court observed that it 
                                                
2 The only exception would be if a Judge is unable to dispense justice impartially on account of 
his/her interest 
CMA No.3932/2023 
23
was for the respective Judge(s) to decide whether to continue 
to sit on the Bench or not. For reference, the Court’s 
observation in the case of Independent Media Corporation 
(supra) is produced below: 
“13. … It is the conscience of the Judge 
himself which must determine his decision to 
sit on a Bench or not.” 
Therefore, apart from failing on both the facts and the law, 
the Federal Government’s objection to the CJ’s presence on 
the Bench disregards the Quranic command to a Judge i.e., 
to dispense justice impartially; a rule that is also echoed in 
the Oath of Office administered to Judges under the 
Constitution. It is accordingly refused for lacking merit. 
Conduct of the Federal Government  
23.   
Before parting with this judgment we consider it 
only fair to reflect on the Federal Government’s inimical 
treatment of the Court and some of its Judges ever since the 
recommendation for Suo Motu notice was made by a two 
Member Bench of the Court to the CJ on 16.02.2023. This 
exercise is helpful for understanding the likely purpose of the 
Federal Government in filing the present recusal application 
because there is a chain of events in which the Federal 
Government and/or Federal Ministers have sought to erode 
the authority of the Court and to blemish the stature of some 
of its Judges with the object of blocking, delaying or distorting 
the result of the judgments of the Court on the constitutional 
right of the people to be governed by an elected government.  
CMA No.3932/2023 
24
24.   
As already mentioned the crucial point in time is 
16.02.2023. On that date, as noted above in para 3, Justice 
Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi 
recommended the CJ to take Suo Motu notice of the delay in 
holding General Elections to the Punjab Assembly. Curiously, 
this is also the date on which the first three audio recordings 
(noted above in para 4) were leaked by indibell. Without 
confirming the veracity of the audios or ascertaining the 
identity of the person who uploaded them, Federal Ministers 
on the same day lent support to the news of the leaked audios 
on 
national 
media. 
Shortly 
after 
on 
18.02.2023, 
a 
Constitution Petition was filed by the Speakers of the Punjab 
and 
Khyber 
Pakhtunkhwa 
Assemblies 
in 
Court. 
Acknowledging that it was the custodians of the two dissolved 
Provincial Assemblies who had petitioned the Court, the CJ 
fixed their Petition and connected matters (“Speakers 
Petition”) for hearing before a 9 Member Bench on 
23.02.2023.  
25.   
At the very outset of the proceedings one of the 
learned Judges objected to the presence of Justice Ijaz ul 
Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the 
Bench. It was urged that by recommending the CJ to take Suo 
Motu notice of the delay in announcing the date of General 
Elections to the Punjab Assembly the two learned Judges had 
‘already expressed their opinion by stating that elections “are 
required to be held within 90 days” and that there was 
CMA No.3932/2023 
25
“eminent danger of violation” of the Constitution.’3 On the same 
day, before any arguments on the merits could commence 
another two learned Judges in their separate notes dated 
23.02.2023 dismissed the Speakers Petition.4  
26.   
Capitalising on the disorderly proceedings, the 
ruling coalition parties sought the recusal of Justice Ijaz ul 
Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the 
next day i.e., 24.02.2023 from the Bench hearing the 
Speakers Petition. The basis of the objection was that the two 
learned Judges had already disclosed their minds on the 
question in issue. Under the practice of the Court the CJ may 
commence 
Suo 
Motu 
proceedings 
against 
the 
alleged 
violation(s) of Fundamental Rights on the recommendation of 
a Bench of the Court. This mode of invoking Suo Motu 
jurisdiction has been recognised and upheld by a larger 
Bench in SMC No. 4 of 2021 (supra). Consequently, in 
rejecting the recommendation of the two learned Judges the 
ruling coalition parties lost sight of this judgment of the Court 
affirming its settled and declared practice.  
27.   
The apparent purpose of the Federal Government 
for seeking the recusal of the two learned Judges through an 
ill-conceived objection was to disrupt or otherwise delay the 
proceedings in the Speakers Petition. Due to the turbulent 
hearings of both 23.02.2023 and 24.02.2023 the nine Hon’ble 
Judges on the Bench met in Chambers on 27.02.2023 to 
discuss the means for restoring harmony in the proceedings. 
                                                
3 Separate Note to Order dated 23.02.2023 
<https://www.supremecourt.gov.pk/downloads_judgements/s.m.c._1_2023_23022023.pdf > 
4 Ibid 
CMA No.3932/2023 
26
Ultimately, all nine Judges unanimously resolved vide order 
dated 27.02.2023 that the CJ should reconstitute the Bench. 
Pursuant to the said order a 5 Member Bench was 
constituted to hear the case. The Federal Government did not 
oppose the reconstituted Bench and therefore the matter 
proceeded and was decided by a majority of 3:2 through short 
order dated 01.03.2023. The three Judges in majority 
declared that the Speakers Petition was maintainable and 
directed, inter alia, that the General Elections to the two 
Provincial Assemblies must be held within 90 days of their 
dissolution as mandated by Article 224(2) of the Constitution. 
The two learned dissenting Judges held the Speakers Petition 
to be not maintainable and therefore dismissed the same. The 
said decision displeased the Federal Government which 
rejected it by proclaiming that the Speakers Petition had 
actually been dismissed by a majority of 4:3 (after taking into 
consideration the separate notes earlier authored by the two 
learned Judges on 23.02.2023 as part of the original 9 
Member Bench).5 On that pretext the Federal Government 
refused to accept and implement the short order dated 
01.03.2023.  
28.   
The Federal Government repeated its above 
mantra of dismissal of the Speakers Petition by 4:3 during the 
hearing of a subsequent election matter. In Constitution 
Petition No.5 of 2023 the order of the ECP dated 22.03.2023 
was challenged for unilaterally extending the date of General 
                                                
5 Press Conference of the Law Minister, Mr. Azam Nazeer Tarar, and the then learned Attorney 
General held on 01.03.2023 
<https://www.youtube.com/watch?v=1YcS2IPZGTQ&ab_channel=SAMAATV> 
 
CMA No.3932/2023 
27
Elections to the Punjab Assembly from 30.04.2023 to 
08.10.2023. The Federal Government hampered the progress 
of the proceedings in that case under the false guise of 
dismissal of the Speakers Petition by an alleged majority of 
4:3. However, in doing so it ignored the important fact 
mentioned above that all 9 Members of the Bench vide order 
dated 27.02.2023 requested the CJ to reconstitute the Bench 
hearing the Speakers Petition. The CJ accordingly formed a 5 
Member Bench. At no stage was a 7 Member Bench 
constituted to return a 4:3 verdict on 01.03.2023 in the 
Speakers Petition as contended by the Federal Government. 
The order of the ECP dated 22.03.2023 challenged in 
Constitution Petition No.5 of 2023 was set aside by the Court 
on 04.04.2023 for violating the constitutional command to 
hold General Elections to a Provincial Assembly within 90 
days of its dissolution. Nonetheless, the Federal Government 
chose not to comply with this order of the Court. Instead it 
insisted, rather inexplicably, that the short order issued by 
the 5 Member Bench of the Court on 01.03.2023 had rejected 
the very maintainability of the Speakers Petition by 4:3. The 
consequence is that two out of four Provinces continue to be 
governed by unelected caretaker governments without any 
end in sight.  
29.   
The resistance of the Federal Government and its 
coalition parties to our proceedings and judgments has also 
expanded to hurling threats6 and making scathing attacks 
                                                
6 Press Conference of Minister of Information and Broadcasting, Ms. Marriyum Aurangzeb, held on 
11.05.2023 <https://www.youtube.com/watch?v=Qr8x0aFuVRM&ab_channel=GNN> 
CMA No.3932/2023 
28
against certain Judges of the Court ever since the audio 
recordings were leaked.7 An extreme example of a personal 
attack on Judges was witnessed on 15.05.2023 when the 
Court was hearing the review petition filed by the ECP against 
the order of the Court dated 04.04.2023 passed in 
Constitution Petition No.5 of 2023 directing the General 
Elections to the Punjab Assembly to be held on 14.05.2023. 
On that day certain political parties forming part of the ruling 
coalition staged an aggressive demonstration outside the 
Court threatening the CJ of serious consequences in the 
event of the Court taking coercive action for securing 
compliance with its order dated 04.04.2023.8 However, the 
disturbing aspect of the said demonstration was the 
assistance given by the Federal Government to its coalition 
parties to gather and protest against the Court in the Red 
Zone area of Islamabad where such protests are strictly 
prohibited. The government machinery facilitated the entry of 
the horde of protestors and remained a silent spectator to 
their slander, the discernible purpose of which was to 
pressurise the Court and its Judges into giving a favourable 
decision or no decision at all. The power show assisted by the 
Federal Government was a direct attack on the independence 
of the Judiciary. Although the freedom of speech guaranteed 
to the people of Pakistan by Article 19 of the Constitution is a 
Fundamental Right, this right is subject to reasonable 
                                                
7 Press Conference of the Interior Minister, Mr. Rana Sanaullah, held on 23.04.2023 
<https://www.youtube.com/watch?v=7zyjomRnkc8&ab_channel=HUMNews> 
8 <https://www.dawn.com/news/1753570> in Dawn Newspaper dated 16.08.2023  
CMA No.3932/2023 
29
restrictions imposed by the law. One such restriction exists in 
Article 19 itself: 
“19. Freedom of speech, etc. Every citizen 
shall have the right to freedom of speech and 
expression, and there shall be freedom of the 
press, subject to any reasonable restrictions 
imposed by law… in relation to contempt of 
court... 
(emphasis supplied) 
Despite the afore-noted constraints under Articles 19 and 68 
of the Constitution on discussing the conduct of Judges, it is 
regrettable that amongst others, Cabinet Members also 
flouted these constitutional limits. Judges were assailed in 
harsh and intemperate language to justify the defiance of 
decisions that were perceived to be detrimental to the Federal 
Government and/or its interests in the matters of the General 
Elections. 
30.   
In 
the 
face 
of 
the 
Federal 
Government’s 
uncooperative stance the Court exercised restraint for the 
negation of its judgments notwithstanding its constitutional 
power to punish any person for disobeying any order of the 
Court. Such control was exercised on account of the pending 
review filed by the ECP against the order of the Court dated 
04.04.2023 which fixed 14.05.2023 as the date for elections 
to the Punjab Assembly. Some questions of constitutional 
importance deserving our attention had been raised by the 
ECP in its review petition. The Court considered that the 
prevailing hostile political environment called for the finality 
of its judgment for which purpose the ECP review had to be 
decided. For this reason the Court fixed that review petition 
for hearing on 15.05.2023 and decided to await its outcome 
CMA No.3932/2023 
30
before alleging non-compliance and therefore disobedience of 
its orders by the Federal Government and the ECP.  
31.   
Be that as it may, we note that the Federal 
Government has by various machinations and stratagems 
managed to delay adjudication by the Court and also 
discredited its judgments: 
i. 
This happened when our order dated 01.03.2023 was 
reinvented to have dismissed the Speakers Petition by a 
majority of 4:3 thereby denying its true legal effect.  
ii. 
Then without challenging the order dated 04.04.2023 
the Federal Government took refuge behind the ECP’s 
review petition filed against that order to justify its 
inaction. 
iii. 
Subsequently, Parliament enacted the Supreme Court 
(Review of Judgments and Orders) Act, 2023 which 
came into effect on 26.05.2023. The said Act changed 
the scope and form of review. As a result, the 
proceedings in the partly heard review petition filed by 
the ECP were stalled pending adjudication of the vires of 
that law. That Act has since been found and held to be 
ultra vires the Constitution. 
iv. 
The Federal Government has repeatedly sought recusals 
of certain Judges from Benches hearing constitutional 
cases, including of the CJ in the present matter, on 
unknown and unspecified grounds of conflict of interest 
and/or bias. 
v. 
Federal Ministers have also routinely made incendiary 
statements on public platforms against Judges of the 
Court sitting on Benches hearing Constitution Petitions 
pertaining to elections to the Provincial Assemblies to 
lend strength to the agenda of the Federal Government 
noted above in sub-point (iv). 
CMA No.3932/2023 
31
The Court has faced all such actions of the Federal 
Government with tolerance, forbearance and restraint. 
However, it goes without saying that any refusal to implement 
a final and therefore binding judgment of the Court can be 
visited with consequences laid down in the Constitution.  
Conclusion 
32.   
In light of the above factual position and  
the law regarding the recusal of a Judge from a Bench  
hearing a lis, the instant recusal application filed by  
the Federal Government is declared to be devoid of merit and 
legal force. Its object lacks good faith for aiming to harass  
a Member of the Bench without cause in order to  
avoid adjudication on the constitutional failings pointed  
out in the impugned notification by Const P Nos.14 to 17 of 
2023. To  our  minds  the  recusal application suffers from 
the  
common defect of being motivated and hence constitutes an 
attack on the independence of the Judiciary. In view of the 
foregoing the recusal application is dismissed. 
 
 
 
 
 
 
 
 
 
Sd/- 
Chief Justice 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sd/- 
      Judge 
 
 
   
 
 
 
Sd/- 
     Judge  
 
 
CMA No.3932/2023 
32
 
 
 
 
 
 
 
 
Sd/- 
Judge 
 
 
 
 
 
 
 
 
 
 
Sd/- 
      Judge  
 
Announced in open Court  
at Islamabad 
on 8th September, 2023. 
 
 
 
 
 
Sd/- 
 
 
 
J. 
 
 
 
 
NOT APPROVED FOR REPORTING.  
 
