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  
 
 
 
CONSTITUTION PETITIONS NO. 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 of 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 & 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. Haseeb Jamali, ASC 
Mr. Umar Lakhani, ASC 
Mr. Ayan Memon, ASC 
Mr. Maqsood Buttar, ASC  
 (in Const. P. 14/23) 
 
Const.P.14 of 2023, etc.  
2
Malik 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  
Assisted by: 
Mr. Saad Javaid Satti, Adv. 
Ms. Maryam Rasheed, Adv. 
Ms. Maryam Ali Abbasi, Consultant.  
 
 
 
Date of hearing  
: 26.05.2023 
 
O R D E R 
 
 
UMAR ATA BANDIAL, CJ. We have heard Mr. Shoaib 
Shaheen, ASC learned counsel for the petitioner at length and 
have also heard the brief submissions in response by Mr. 
Mansoor Usman Awan, the learned Attorney General for 
Pakistan. 
The 
petitioner’s 
challenge 
is 
to 
Notification 
No.SRO.596(I)/2023 dated 19.05.2023 (impugned notification) 
issued by the Federal Government for appointment of an Inquiry 
Commission (Commission) in exercise of its power under Section 
3 of the Pakistan Commissions of the Inquiry Act, 2017 
comprising Justice Qazi Faez Isa, Hon’ble Senior Puisne Judge 
Supreme Court of Pakistan, Mr. Justice Naeem Akhtar Afghan, 
Chief Justice High Court of Balochistan and Mr. Justice Aamer 
Farooq, Chief Justice Islamabad High Court. The terms of 
reference (TORs) of the Commission, inter alia, are to determine 
whether certain alleged audios leaked on 16.02.2023 and 
thereafter subsequently broadcast on the electronic media, 
involving alleged conversations between persons connected to or 
including Judges of the superior Courts, constitute material 
whereby public trust and confidence in the credibility, 
uprightness, impartiality and independence of the superior 
judiciary is eroded.  
Const.P.14 of 2023, etc.  
3
2. 
 
The essence of the submissions made by Mr. Shoaib 
Shaheen, ASC, learned counsel for the petitioners are as follows: 
i) 
The impugned notification violates fundamental 
rights by breaching the principle of separation of 
powers on the basis of which the constitutional 
framework of our country is established. The 
Executive cannot transgress into the area of the 
judicial function. While Article 209 of the 
Constitution of Islamic Republic of Pakistan, 
1973 (Constitution) enables the President of 
Pakistan (acting on advice i.e. the Executive 
branch) to present a Reference in respect of any 
alleged misconduct by a Judge of the superior 
Courts, the determination and all matters and 
aspects relating thereto whether directly or 
indirectly are exclusively vested in the judicial 
branch, as embodied in the constitutional body 
known as the Supreme Judicial Council (SJC). 
Thus, the constitutional principle of trichotomy of 
powers has placed these functions in mutually 
exclusive zones i.e. the two branches of the 
Executive and the 
Judiciary. 
However, in 
appointing 
senior 
sitting 
Judges 
as 
the 
Commission of Inquiry to investigate and enquire 
upon the matters which are the subject matter of 
the TORs of the Commission, prima facie, the 
principle of separation of powers has been 
breached. The Federal Government, in what 
tentatively appears to be a complete misdirection 
of law, has thus trenched upon a constitutional 
domain 
exclusive 
to 
the 
Judiciary 
and 
demarcated exclusively for the latter under Article 
209 ibid.        
 
Const.P.14 of 2023, etc.  
4
ii) 
The TORs for the Commission are specified in the 
impugned notification in sub-paras (iii) to (ix) of 
paragraph-6, being the questions upon which the 
Commission is to render its determination. These 
questions 
include 
in 
paragraph-6(v) 
the 
determination 
whether 
any 
disciplinary 
proceedings are attracted by virtue of the matters 
under inquiry. Keeping in view paragraph-6 (viii) 
which 
concerns 
the 
genuineness 
and 
the 
correctness of the alleged audios leaked, it 
appears, prima facie, that paragraph-6(v) is 
addressing judicial misconduct in veiled terms. 
This function is reserved by Article 209 of the 
Constitution to be performed solely by the 
Judiciary through the SJC. In this way, the TORs 
of 
the 
Commission 
appear 
to 
extend 
its 
jurisdiction into an area falling within the domain 
of the SJC at the instance of the Executive which 
is 
an 
arrangement 
that 
is, 
prima 
facie, 
unconstitutional and void.  
 
iii) 
A perusal of paragraph-6(i) and (ii) of the TORs of 
the Commission setting out the subject matter of 
enquiry by the Commission, prima facie, overlaps 
or at the very least appears to fall within the 
penumbra of the constitutional jurisdiction 
vesting in the SJC under Article 209 of the 
Constitution. This jurisdiction is an integral 
component of the independence of the Judiciary 
enunciated, inter alia, in Article 175(3) of the 
Constitution which is not only a fundamental 
right 
but 
also 
a 
Salient 
Feature 
of 
the 
Constitution.    
 
Const.P.14 of 2023, etc.  
5
3. 
 
Learned counsel for the petitioner also emphasised on 
the apparent violation of Article 14 of the Constitution relating to 
dignity of man and the rights of privacy that are inherent therein. 
Learned counsel submitted that such rights extended not just to 
the person but also to the communications made by him. Illegal 
and unlawful surveillance of such communication or the 
targeting of any person in this regard was clear cut violation of 
the said fundamental rights. In this regard reference was made 
to certain laws, including principally, the Investigation for Fair 
Trial Act, 2013 (Act) to show that it is the only law which permits 
surveillance under strictly limited circumstances in terms of the 
elaborate regime set out in the Act and only in relation to the 
offences appearing in the Schedule thereof which relate to 
terrorism and such like offences. Learned counsel read out 
various sections of the said Act and in particular drew attention 
to Section 10(2)(b) where even if surveillance for such limited 
purposes could be lawfully carried out, rights of privacy and 
property were always to be respected. It was submitted that the 
subject matter of the present proposed inquiry could not 
conceivably fall within the ambit of the said Act. Learned counsel 
also placed reliance on the judgment of Justice Syed Mansoor Ali 
Shah (concurring in part) and reported as Justice Qazi Faez Isa 
and others vs. The President of Pakistan (PLD 2021 SC 1). 
Various paragraphs in relation to the concept of privacy were read 
out from this judgment and in particular reliance was strongly 
placed on the following passage from para-48: 
“48. … While the fundamental right to personal liberty 
and privacy guaranteed by Articles 9 and 14 of the 
Constitution are subject to law, there is no law in our 
country 
that 
authorizes 
any 
law enforcement 
or 
intelligence agency to pry into the privacy of any person 
through surveillance and interception, except the IFTA. 
The scope of the IFTA, as discussed above, is also 
restricted to the surveillance and interception of a person 
who is suspected to be involved in any terrorist or anti-
state activity. Besides this limited scope under  the IFTA, 
no other law regulates the fundamental right of privacy of 
citizens and allows probe into their lives through 
surveillance and interception. Thus, in the remaining 
Const.P.14 of 2023, etc.  
6
sphere the right to privacy is absolute, until law is enacted 
to regulate it. The violation of this sphere of the absolute 
privacy right makes the inadmissibility of evidence 
collected in violation thereof also absolute. Absolute right 
entails absolute prohibition on its violation. …” 
 
 
 
 
 
 
(emphasis supplied) 
4.  
 
It was submitted that since there was, and could not 
possibly be, any law that allows for surveillance or hacking of any 
communication of Judges or their family members, the bar, as 
noted in the extract above, was absolute and that therefore, at a 
very fundamental level there could hardly be any point in light of 
the forgoing observations to the inquiry envisaged by the 
impugned notification being held. In addition, it was also 
submitted that in respect of the petitioner in Const. P. 14 of 2023, 
who is an Advocate, the alleged audio (the veracity of which was 
directly challenged) would amount to illegal disclosure of 
privileged communication which could not form the subject 
matter of any inquiry. Reliance was also placed in this regard on 
Ishtiaq Ahmed Mirza vs. Federation of Pakistan (PLD 2019 SC 
675), which lays down detailed parameters as to admissibility of 
any audio or video material. Given that the alleged audios in the 
present case were all leaks made by a so called “black hat hacker” 
operating under the twitter handle “indibell”, the first and 
primary question was the very veracity, credibility and legality of, 
and authorization for the alleged audios and so also the identity 
of the person or “hacker” engaged in or abetting such acts.  
5. 
 
On any view of the matter, therefore, learned counsel 
submitted, further proceedings by the Commission in terms of 
the impugned notification would amount to a continued serious 
breach of fundamental constitutional principles and rights.  
6. 
 
At the outset, learned Attorney General for Pakistan 
had sought permission to make a preliminary submission which 
was to the effect that one of us (Umar Ata Bandial, CJ) ought to 
consider recusing himself from the Bench. Reason given in this 
regard was that the constitution of the Commission and in 
Const.P.14 of 2023, etc.  
7
particular the appointment of its Chairman could not have been 
done by the Hon’ble Chief Justice, in view of the stated subject 
matter of the reference. The contention was repelled, inter alia, 
for the reason that it was an accepted and settled constitutional 
principle, acted upon several times in the constitution of 
Commissions whenever a sitting Judge was intended to be made 
a member thereof, that the permission of the Hon’ble Chief 
Justice of Pakistan had first to be sought.  Since this power was 
peculiar to the said office, the incumbent for the time being of the 
same could neither divest himself nor be divested by the Federal 
Government from discharging the constitutional duty. Inasmuch 
as the Federal Government appeared to have acted unilaterally 
in this matter, a constitutional principle of the highest 
importance had been, prima facie, breached. We may note in this 
regard that even though the other two members of the 
Commission are Chief Justices of respective High Courts as noted 
above, the subject matter of the reference transcends any 
particular High Court and involves at the very least a sitting 
Judge of the Supreme Court and a Chief Justice of a third High 
Court. Therefore, keeping in mind the settled principles of 
federalism, prima facie, the aforementioned constitutional 
principle would apply even in regard to the other two members of 
the Commission and therefore, the permission of the Hon’ble 
Chief Justice of Pakistan was required for their appointment. 
Prima facie, therefore, the very constitution of the Commission is 
cast in doubt. In this regard reliance is placed on: 
a) 
Federation of Pakistan vs. Muhammad 
Akram Sheikh [PLD 1989 SC 689 @ para-28(ii) 
to (iv)] 
b) 
Gen.(R) Parvez Musharraf  vs. Nadeem 
Ahmed (Advocate) & another (PLD 2014 
SC 585 @ para-26) 
 
c) 
The President  vs. Justice Shaukat Ali 
(PLD 1971 SC 585 @ page 605) 
 
d) 
Malik Asad Ali  vs. Federation of Pakistan 
(PLD 1998 SC 161 @ para 66) 
 
Const.P.14 of 2023, etc.  
8
7.         In view of the above, let notice be issued to the respondents 
in all petitions. Notice be also issued to the learned Attorney 
General for Pakistan in terms of Order XXVIIA of the Civil 
Procedure Code.   
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. 
 
 
To come up on 31.05.2023.   
 
      
   
 
 
  
 
 
 
 
Sd/- 
Chief Justice  
 
Sd/- 
Judge 
 
 
 
 
 
 
 
 
Sd/- 
Judge 
 
 
Sd/- 
Judge 
 
 
 
 
 
 
Islamabad 
26.05.2023 
 
 
Sd/- 
Judge 
 
 
APPROVED FOR REPORTING. 
 
 
