Govt moves SC against IHC verdict in audio leaks case

ISLAMABAD; The federal government has challenged in the Supreme Court, the order of Islamabad High Court (IHC) regarding the audio leaks of Bushra Bibi, spouse of Imran Khan and Najmul Saqib, son of former Chief Justice Saqib Nisar.

The federal government, through Additional Attorney General Anis Muhammad Shahzad, filed an appeal under Article 185(3) of the Constitution against the order dated June 25, 2024, passed by an IHC single bench.

It prayed to the apex court to grant leave to appeal against the impugned order dated 25-06-2024 by the IHC and set aside the said order.

The IHC while hearing the petition filed by Najum Saqib had directed the PM office to submit a report on the legal framework of the surveillance system within six weeks, seeking clarity on whether the surveillance was being carried out under the law and the constitution.

It is pertinent to mention here that the alleged audio leak case involves a call conversation between former prime minister Imran Khan’s spouse Bushra Bibi, and Najam Saqib, the son of ex-chief justice Saqib Nisar, on party ticket.

In its petition, the federal government has made Mian Najamul Saqib Advocate High Court and son of former Chief Justice Saqib Nisar as respondent besides making federation of Pakistan through Secretary, Ministry of Parliamentary Affairs Division, Speaker, National Assembly, Special Committee, appointed by Speaker, Assistant Director/Secretary Committee, at National Assembly Secretariat and others as Proforma respondents.

The federal government questioned as to whether, on facts and circumstances of the case, the IHC single bench of was legally correct and justified to pass the Impugned order dated 25-06-2024 in W.P. No. 1805/2023.

Whether the IHC single bench has not erred in law by exercising suo motu powers while passing Impugned order, which is beyond the pleadings of parties, the federal government further questioned.

The federal government submitted that an alleged audio conversation of the Respondent No.1 with his friends regarding managing party ticket for contesting the election of the provincial assembly seat against certain monetary consideration became viral on the social media along with the electronic media.

Upon becoming the alleged audio leaks viral and discussion thereon in the National Assembly, the NA speaker took notice of the same and constituted a special committee vide circulation dated 02-05-2023 to audit, inquire and investigate the petitioner’s alleged audio leaks, it submitted.

However, with this background, the titled case was filed by the petitioner with the following prayers: “In view of the above, it is most respectfully prayed that the present petition be allowed and the impugned actions of the Respondents: (i) constitution by the Respondent No. 2/Honourable Speaker of Special Committee to audit, inquire and investigate the Petitioner’s alleged audio leaks through the impugned circular, and (ii) purported cognizance/assumption of jurisdiction by the Respondent No. 3 into the said matter through the impugned notice, be declared illegal, without jurisdiction, non-est and of no legal effect.

Further, it may be declared that recording of private conversation of private persons, storing the same, using the same in any manner whatsoever is violative of the citizen’s inalienable and fundamental right to deal with in accordance with law, right to privacy, right to life, right to freedom of speech and right to dignity provided for and safeguarded by Articles 4,9,14 and 19 of the Constitution.

Further, during the pendency of the present petition, the operation of the impugned action, impugned circular dated 02-05-2023 and impugned notice dated 25-05-2023 be suspended and/or the Respondents be restrained from taking any coercive and adverse action against the petitioner”, the federal government contended.

It was further submitted that during the pendency of the titled petition, the National Assembly was dissolved on 09-08-2023, thereby the said Special Committee ceased to function/exist as envisaged under Rules 253 of the Rules of Procedure and Conduct of Business in National Assembly, 2007 which provides that “On the dissolution of Assembly, all pending business shall lapse”.

Thus, circular dated 02-05-2023 and notice dated 25-05-2023 issued by Secretary Committee, National Assembly become ineffective on the expiry of tenure of the National Assembly on August 9, 2023”, the federal government submitted adding that there is no live issue to be adjudicated upon by the IHC vis-à-vis the first prayer clause and thereby the petition to that extent became infructuous.

That regarding the second prayer clause for declaring the private conversation as violation of fundamental rights, it is submitted that while acknowledging the importance of right of privacy, recording of private conversation has already been declared as an offence under section 19 of Prevention of Electronic Crimes Act, 2016.

For ready reference, the section 19 of PECA, 2016 is reproduced as under:

Unauthorized Interception.- Whoever with dishonest intention commits unauthorized interception by technical means of- (a) any transmission that is not intended to be and is not open to the public, from or within an information system; or (b) electromagnetic emissions from an information system that are carrying data shall be punished with imprisonment of either description for a term which may extend to two years or with fine which may extend to five hundred thousand rupees or with both.

In view of the fact that unauthorised recording of private conservation has been made an offence, there was no occasion for the Hon’ble Islamabad Court to make such declaration when such an act has already been criminalised by the legislature.

Despite the fact, there is no live issue/grievance left to be adjudicated in the petition for the reason as narrated above, nonetheless, while exercising suo moto jurisdiction, proceedings are being carried out beyond the scope of titled petition.

The federal government contended that it is settled law that the High Courts do not have suo motu jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan. Reliance in this regard is placed on the judgments reported as 2018 SCMR 414, PLD 2000 21 SC 571 and PLD 2023 SC 236.

“It also has been observed by the apex court in celebrated judgments that a High Court cannot transgress its jurisdiction under Article 199 of the Constitution by passing an order which not only amounts to the exercise of suo motu jurisdiction but also an encroachment on the jurisdiction of the executive”, it submitted.