Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday asked if the government had utilised its resources to trace those behind recording and leaking audios of conversations.

He passed these remarks as a five-judge bench of the Supreme Court (SC) resumed hearing pleas challenging the formation of a judicial commission led by Justice Qazi Faez Isa to probe audio leaks.

The five-judge bench, led by CJP Bandial, also comprised Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

“How and where are the audio leaks emerging from? Who is behind this?” Justice Bandial asked as the apex court took up a set of four petitions challenging the constitution of the audio leaks commission.

The petitions were moved by Supreme Court Bar Association (SCBA) President Abid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif Rahi. All of the pleas have requested the court to declare the constitution of the audio commission illegal.

The federal coalition had formed the commission on May 20 under Section 3 of the Pakistan Commission of Inquiry Act 2017. Led by senior puisne judge Justice Isa, the commission also comprises Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.

On May 28, the top court restrained the panel from going ahead with its task. The verdict was issued by the five-member bench hearing the case.

Subsequently, the government-app­ointed commission decided to put its proceedings on hold until the SC decided the petitions.

Last week, both the commission and the government had objected to SC proceedings.

Justice Akhtar takes exception to Sanaullah’s presser on audio leak allegedly featuring top judge’s family

During today’s hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan read out the commission’s terms of reference (TORs).

“One of the audio leaks is related to the CJP’s mother-in-law,” he pointed out.

At that, Justice Akhtar asked if the case being heard at the moment concerned the veracity of the audio leaks.

Awan replied that the government had only formed a commission at this point and its purpose was to determine the authenticity of the leaks.

“Is the federal government not aware of whether the audio leaks are authentic or not?” Justice Akhtar asked.

“Senior cabinet members even held press conferences on the leaks […] is it not true that the interior minister held a press conference?

“Some audios were even played in the press conference,” the judge noted. “Is it lawful for someone, who doesn’t know about the truth of the audio leaks, to raise objections to the bench?”

Justice Akhtar further stated that he was inquiring about the maintainability of the AGP’s appeal seeking the reconstitution of the bench.

“Why did the interior minister hold the press conference? Can such carelessness be shown?” he went on to ask. “After such a statement, the minister should have been removed or resigned.”

For his part, Awan asked if a minister’s statement could be considered the government’s stance on the matter. “It is not in my knowledge if someone had held a press conference,” he said.

However, Justice Akhtar asserted that the federal cabinet should have shown “collective responsibility” on such an important issue.

“A minister talking about tea is different, but here a statement was given on an important issue,” he said.

At that, the AGP asked the court to see if the interior minister’s statement was issued before May 19 or after.

“Wow, what justice with the judiciary,” the CJP quipped. “First judges were ridiculed through the audios and then it is being said that these leaks will be investigated.”

Justice Akhtar also remarked, “This is an easy way to remove any judge from a bench […] construct an audio [which includes] their name.”

He then contended that there were legal reasons behind judges recusing themselves from benches. “This option is not available for anyone to come and say that this judge can’t hear this case.”

Who planted audio leaks, asks CJP Bandial

At one point during the hearing, CJP Bandial noted that the post of the chief justice was “constitutional”.

“No one can assume the charge of CJP on the basis of an assumption. In this case, the chief justice was available but wasn’t informed about the formation of the [audio leaks] commission,” the top judge remarked.

“Present your arguments on these points,” he said and directed Awan to understand the law before reading out previous judgments issued by the court.

Here, the AGP said he wanted to first present arguments on the constitution of the bench.

“Are you heading towards the point that three of us judges are controversial?” Justice Bandial asked. “If you go towards that, you will have to explain the basis on which you assumed that there is conflict among the three of us?”

“I want you to focus on the more important issue instead of others,” he remarked, noting that another pressing matter was the freedom of the judiciary.

The CJP also inquired about those responsible for the audio leaks. “The question is who planted the audio leaks? Has the government tried to find out who is behind this?” he asked.

He also said that the Twitter accounts involved in leaking the audios should be investigated.

Awan replied that the government was looking into these questions through the commission. “How the calls were recorded and all such queries will be reviewed by the commission,” he said.

Awan further maintained that the matter was in its initial stages currently, adding that as per the federal cabinet, the recordings were “alleged audios”.

“Only this statement should be looked at,” he said, highlighting that apart from the cabinet, statements of any ministers should be viewed in a personal capacity.

“If the defence minister gives a statement, should that not be seen as the government’s stance too?” Justice Akhtar asked.

“If a matter turns out to be relevant to all the judges of the Supreme Court, then this theory can be applied as the doctrine of necessity,” the AGP replied.

At one point during the hearing, Justice Akhtar recalled that no objections were raised to the bench hearing the Benazir Bhutto case.

“The phones of four out of seven judges hearing the case were tapped. Did the judges, whose calls were tapped, not take the right decision in that case?” he asked.

Awan responded, “The government’s case is not regarding bias but the conflict of interest.”

Meanwhile, Justice Bandial asked if the government’s objection was related only to the judiciary proceedings or also to the execution of the court’s administrative affairs.

The AGP argued that a person could not be a judge of their own cause, assuring the bench that the government did not have any ill-intention in the matter. “Changes in the bench will not affect the right of the petitioners who approached the court,” he added.

Awan subsequently requested the court to review the appeal regarding the re-constitution of the bench and concluded his arguments.

Conspiracies hatched to divide judiciary, says SCBA lawyer

Presenting his arguments, SCBA lawyer Shoaib Shaheen said, “The audio leaks were considered to be authentic and it was said that the freedom of the judiciary had been affected.”

He argued that the TORs of the commission did not mention those involved in tapping phone calls. “All the audios emerged after the suo motu of the Punjab elections,” the lawyer claimed.

“Who recorded the audios? All the audios were brought forth through one hacker.”

Shaheen further stated that the federal government was a respondent in the Punjab elections case and questioned how it could then form the audio leaks commission. “It would have been fair if the TORs mentioned anything about the recorder.”

The lawyer highlighted that the court had a constitutional matter in front of it. “Here the question is about the executives interfering in matters of the judiciary,” he said, adding that the bench hearing the case had to come up with an interpretation and not give a verdict in favour of or against anyone.

Shaheen further asked, “Should we accept the audios without any investigation? This will be a very easy way of blackmailing and fake audios will be made by anyone.”

This court, he continued, had only issued an order to hold elections. “Immediately after it, audios started surfacing and what not was said on talk shows,” the lawyer said.

“Where was Pemra (Pakistan Electronic Media Regulatory Authority) amid this? Conspiracies were hatched to divide the judiciary.

“The judiciary’s freedom is very important … people are looking towards the courts,” he said.

Without taking any names, Shaheen contended that an 82-year-old was “picked up” on the pretext of people’s political views. “Can the executive interfere in the judiciary this way?”

As the SCBA lawyer concluded his arguments, AGP Awan came to the rostrum and said that the government’s plea regarding the reconstitution of the bench was not related to bias but the conflict of interest. He requested the court to overlook Shaheen’s arguments in this regard.

“We will think about it,” the CJP replied. He appreciated the arguments presented by Awan and Shaheen, saying that the court’s order restraining the audio leaks panel from going ahead with its task was still in place.

Subsequently, the hearing was adjourned indefinitely with Justice Bandial saying that the court would ponder upon its decision regarding the government’s plea.

Objections to the bench

Last week, the government had filed an appeal in the apex court seeking the reconstitution of the bench hearing the case. The government asked CJP Bandial, Justice Ahsan, and Justice Akhtar to distance themselves from the bench since “rules of natural justice” demanded that the “adjudicator should be impartial”.

At the last hearing, the commission had also had objected to the proceedings, saying that they did not conform with the requirements of a newly-passed law, the Supreme Court (Practice & Procedure) Act 2023, the implementation of which was stayed by the top court.

The commission, in its reply moved through the secretary, highlighted that the Supreme Court (Practice and Procedure) Act 2023 required that every appeal or case before the top court should be heard by a bench formed by the committee of judges comprising the chief justice and two most-senior judges of the apex court.

Since the petitions challenging the audio leaks commission were not fixed before such a bench, these petitions couldn’t be heard until the committee determined which bench should hear them, it said.

In a 12-page statement, the commission assured the top court that it had no interest other than undertaking the assignment given to it and to do so strictly according to the Constitution and the law.

It also highlighted that the oath taken by the country’s chief justice and other judges of the superior courts required them to act as per the Constitution and to abide by the code of conduct issued by the Supreme Judicial Council (SJC), which required not allowing personal interest to influence official conduct or decisions.

The statement went on to highlight that one of the audio recordings allegedly pertained to CJP’s mother-in-law; besides, Justice Akhtar might also have been mentioned in the same recording. Another audio recording referred to fixing a case before a particular bench headed by Justice Ahsan.

Additional documents filed

Meanwhile, the SCBA president on Monday furnished a number of orders of different high courts with a request that these documents be considered for “proper adjudication” of the present case.

In the fresh application, Zuberi through his counsel Shoaib Shaheen furnished an order by the Islamabad High Court (IHC) issued on Dec 22, 2021, in which the court had held that no news channel has the right to air or broadcast any audio or video clip which has not been directly recorded by the channel or journalist themselves without prior permission of the subject of the audio or video clip and that “spy information” should not be treated as news item, especially when it affects right to privacy.

Likewise, another document contained a Supreme Court judgement passed on April 5, 2022, to bring it on record that the apex court had refused to entertain an appeal against the aforementioned IHC order.

Similarly, the petitioner also furnished another IHC order passed on May 31, 2023, in which the court had suspended the summons issued by a special committee constituted by the National Assembly speaker to audit, inquire and investigate audio leaks allegedly involving Najam Saqib, son of ex-CJP Saqib Nisar.

In the order, Justice Babar Sattar had appointed Barrister Aitzaz Ahsan, Makhdoom Ali Khan, Mian Raza Rabbani, and Mohsin Shahnawaz Ranjha as amici to assist the court. The high court had also wondered about any legal framework for recording the telephonic conversations between citizens. The court had also highlighted the need of identifying the legal mechanism for the grant of permission authorising the recording of telephone conversations between citizens and the safeguards adopted to ensure that to the extent that any phone calls were permitted by law to be recorded their confidentiality was preserved and any such recording was not leaked or used for extraneous purposes.

One of the documents furnished by the petitioner before the Supreme Court was a Lahore High Court ruling passed on June 2, 2023, wherein the court held that any audio or video in the absence of its source cannot be taken as a piece of evidence.