SC restrains IHC from hearing audio leaks case

ISLAMABAD: The Supreme Court (SC) Monday restrained the Islamabad High Court (IHC) from further proceeding with the matter of audio leaks of Bushra Bibi, spouse of former prime minister Imran Khan, as well as Najmus Saqib, son of former chief justice of Pakistan Mian Saqib Nisar.

A two-member SC bench, comprising Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, admitted for regular hearing appeals of the federal government as well as the Telecommunication Authority (PTA) after suspending the IHC order passed on June 25, besides restraining it from further proceeding with the matter.

IHC Justice Babar Sattar had issued a 29-page order for the June 25 hearing on the request of Bushra Bibi in the audio leaks, besides issuing a contempt of court notice to the chairman and members of the Pakistan Telecommunication Authority for “misrepresenting” themselves to the court, ordering them to file their responses to the notices within six weeks and appear in person on the next date of hearing.

The court declared that there was no need to suspend the high court’s May 29 order as the order restraining the agencies concerned from further investigation was pending and the high court did not extend it.

Justice Aminuddin remarked that the IHC also issued orders that were not requested. Similarly, Justice Naeem Afghan observed that unfortunately nobody in this country was ready to grasp the truth or reach for it. “Even a commission, set up by the government for investigating the issue of audio leaks, was not allowed to work by moving an application at the initial stage,” the judge remarked, adding that the same happened with the parliamentary committee. Therefore, neither the parliament nor the court was allowed to function on the issue.

Justice Afghan questioned as to how the truth would be reached out if there was no investigation into a matter. Additional Attorney General (AAG) Chaudhry Aamir Rehman submitted that the high court ignored the original case and initiated suo moto proceedings, and issued orders without hearing to anyone. He submitted that orders were also issued against those institutions which were neither part of the case nor were they heard as parties. The AAG contended that the parliamentary committee, which was constituted for probing the matter, was disbanded after dissolution of the National Assembly. Therefore, the matter became anfractuous, but the high court, while exceeding its jurisdiction, initiated suo moto proceedings.

The law officer submitted that illegal phone tapping is a crime under the Telegraph Act, Fair Trial Act and four laws, including the PICA Act [Prevention of Electronic Crimes Act, 2016], but the high court ignored the legal aspect of the matter and went into another direction, restraining the authorities concerned from tapping phones.

The AAG contended that due to the high court order, the intelligence agencies were not able to carry out counter-intelligence, and even terrorists were not being caught anymore. He further submitted that the ISI, IB were also stopped from phone tapping and getting CDR [Call Detail Record].

Justice Aminuddin Khan observed that a permission was given later on. The AAG, however, replied that only CDR limit was allowed. The AAG, while giving details, informed the court that the owner of a company had filed an FIR [first information report] with the Kohsar police station for collecting fake receipts for the sale of watches in the Tosha Khana case. He submitted that when Bushra Bibi was interrogated, she declared the audio fake. She was issued a notice to record an audio so that a forensic audit could be done to ascertain if the audio was fake. He submitted that Bushra Bibi then challenged the notice in the high court.

Justice Aminuddin Khan asked the AAG as to whether the high court had ascertained who was recording the audio. The AAG replied in negative. The SC judge observed that those who were being talked about might have leaked the audio, and questioned whether the aspect was looked into, adding that nowadays every mobile-phone has a recording system.

The AAG replied that the aspect was also not investigated, adding that instead of finding out the truth of the audio, the high court initiated suo moto proceedings after formulating five questions, and issued orders, though it has no authority of initiating suo moto proceedings. The AAG also cited two SC judgments in this regard.

The court, after admitting the appeals of the federal government and the PTA, issued notices to the parties concerned – Bushra Bibi and Najmus Saqib -- after suspending the June 25 order of the IHC, restraining it from further proceeding with the matter.

The court, in its order, noted that the AAG stated that whether the audio leak was genuine or fake, the high court had not ascertained the fact, and exceeded its jurisdiction under Article 199, as it was a settled rule in the Supreme Court judgments that the high court could not take suo moto notice.

The order said the court was told that the matter was regarding investigation, and the high court could not inquire into any such matter, adding that the five questions, set by the high court in its May 31 hearing, were not the case of the petitioners.

The court noted down in its order that the AAG requested to suspend the IHC order issued on May 29, 2024 and took a stand that no intelligence agency could investigate or do counter-intelligence in the presence of the order.

It was further noted by the court that the AAG took the position that in view of the fear of contempt of court, there was a request to suspend the order. The court held that the IHC order of May 29 was not extended to the next court proceedings, so there was no need to suspend the order. Later, the court adjourned the hearing for date-in-office (indefinite period of time).