ISLAMABAD: An inquiry commission, set up to probe audio leaks, containing conversations allegedly of family members of superior courts’ judges and senior lawyers, questioned how without hearing it a five-judge bench of the Supreme Court passed an order to stay its proceeding.

A three-judge commission headed by Justice Qazi Faez Isa, senior puisne judge Supreme Court, and comprising Chief Justice High Court of Balochistan Naeem Akhtar Afghan and Chief Justice Islamabad High Court Aamer Farooq, on Saturday, assembled in Courtroom 7 of the Supreme Court to conduct hearing.

A five-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed, a day ago (Friday) had suspended the operation of the federal government’s notification to constitute the judicial commission to probe the audio leaks. The bench had also stayed the proceedings of the inquiry commission.

Justice Faez Isa adjourns proceedings of audio leaks commission

At the outset, Justice Faez said they heard that a stay had been granted against the commission’s proceeding.

He, while addressing Attorney General for Pakistan Mansoor Usman Awan, who was present in the courtroom, said: “We have not received a copy of the order.” Justice Faez then said an order could be passed against the commission without hearing it, adding that the Commission received no notice. He said that according to the Supreme Court Rules, the orders are passed after both parties, but the Court did not hear the commission before passing the order.

The AGP said he was told about the Supreme Court’s proceeding verbally. He then read the order. Justice Faez questioned on which petitions the order had been passed.

He replied that a five-member bench of SC passed the order on the petitions of Pakistan Tehreek-e-Insaf Chairman Imran Khan, President Supreme Court Bar Association Abid Shahid Zuberi, SCBA Secretary General Muqtedir Akhtar Shabbir, and advocate Riaz Hanif Rahi.

The commission after hearing the attorney general and journalist Abdul Qayyum Siddiqui, to whom notice was issued in light of his audio leak, wherein, he was talking to a senior advocate Khawaja Tariq Rahim regarding a case fixed before the Court, was adjourned for an indefinite period.

Justice Faez remarked; “If my call is recorded, wherein, I was told to decide a case in favour of so and so person, then may I claim privilege.”

The attorney general said that the order was passed on the basis of Article 14 of the Constitution. The bench noted that Article 14 talks about the dignity of man and the privacy of the home. Justice Faez said that on roads, airports, and hospitals, CCTV have been installed, and suppose someone is murdered on roads or airports then the CCTV footage would not be acceptable as evidence, as the recording was made without knowledge. He further said if my son is murdered and I call 15 and record the call just to prove it as evidence then would it not be acceptable?

Justice Faez questioned if a lawyer talks on phone for fixation of the case before a particular judge and if his call is recorded then how he could claim privilege? He then said that according to the SC five-judge order, the chief justice of Pakistan must be consulted for nomination of a judge in the commission. He questioned whether under Inquiry Commission Act, 2017, the federal government is not competent to form a commission? How is the federal government bound to consult the Supreme Court? If the law does allow then he might have excused to be the member of the commission.

The presiding judge then asked the attorney general to read the oath of judges. He said the oath says; “I (judge) shall perform my functions in accordance with the Constitution and law.”

Justice Faez questioned whether the Inquiry Commission Act was not a law. The judge stated under this law, he was nominated for a commission to probe the Quetta killings.

On August 8, 2016, in terrorist attacks, 75 people (a majority of whom were lawyers) were killed in Quetta. Justice Qazi was then assigned the task the probe those killings.

Justice Faez said they are not getting extra for conducting judicial commission proceedings. “In our life sometimes we have to perform functions, which we don’t like, but we do those things because we have taken oath under the constitution.”

Justice Faez questioned, in federalism, the Chief Justices of High Courts are also required to consult the Chief Justice of Pakistan. He said, in federalism, the provinces are independent, adding if the provinces are independent, then why not the chief justice of the High Courts of the provinces independent? How their functions could be regulated.

The attorney general said that he had argued this point, but it was not included in the five-judge bench’s order. The AGP was then asked to read Justice Syed Mansoor Ali Shah’s note which he wrote in Justice Qazi Faez case in 2020. Justice Faez questioned how the instant matter can equate with my case, as my wife had not denied that properties in England were not her. I had provided all the documents of the properties.

Justice Faez said the case before the commission is to dig out the truth. He questioned how SCBA President Abid Zuberi’s individual right could be a matter of public importance. Why did his counsel not issue notice to the Commission, which is one of the respondents in the petition, filed under Article 184(3) of constitution.

The lawyers’ code of conduct has been thrown out of the window. He inquired why Shoaib and Zuberi did not appear before the commission.

Justice Faez said how Shoaib Shaheen could say the commission’s proceedings overlap with the Supreme Judicial Council (SJC). He said in their order they have clarified that commission’s proceeding in no way affects the SJC. Justice Faez said that he is also a member of the Council, and clarified these objections.

Justice Faez said Khawaja Tariq Rahim, in reply to the Commission’s notice last night (Friday), through email, informed that he was unwell, therefore, his statement is also recorded in Lahore, when the Commission will visit the Punjab capital to record the statements of two ladies, whom the notices were also issued.

He said if they would investigate the audios then would come to know who had leaked them, adding he was not aware of hackers, might anyone from media knows them. He said Qayyum Siddiqui might have released his conversation with the lawyer on social media.

The head judge said in talk shows the commission is criticised by a lawyer, whose client’s case is pending before the commission. In talk shows we (the judges) are taught the constitution. The lawyers’ code of conduct has been thrown out of the window. He said in one TV talk show, Shoaib Shaheen discussed the case of his client. Under rules, how a lawyer can talk about his client’s case on TV channels.

Copyright Business Recorder, 2023