ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

Writ Petition No. 2758 of 2023

Bushra Imran Khan.

Versus
Federation of Pakistan through Secretary Ministry of Interior and
Secretary Ministry of Defence & others.
S. No. of Date of Order with signature of Judge and that of
order/ order/ parties or counsel where necessary.
proceedings Proceedings
(06) 07.12.2023 Sardar Muhammad Latif Khosa and Ms. Suzain
Jehan Khan, Advocates for the petitioner.

Diary No. 20826 of 2023

The office has raised two objections stating that there are two

prayers in the C.M and the respondents are not identified. The

office objections are over-ruled. The respondents in relation to

a C.M are the respondents in the main petition and need not be

identified independently in the C.M. Let the application be

numbered and fixed before the Court for today.

C.M No._3816 of 2023

The applicant/petitioner is aggrieved by the illegal

recording of her telephone conversation with her lawyer and the

release of the same on social media as well as on television

networks.

2. The learned counsel for the applicant/petitioner states that

there is no legal sanction for recording telephone conversations

of citizens. And such recording is in breach of the right to dignity

and privacy guaranteed by Article 14 of the Constitution. He

states that the Federal Government in the clubbed matter has

already filed responses stating that no authority or agency has

been authorized to undertake surveillance or record telephone

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conservations of citizens or surveil them. He states that the

recording of the conversation between a citizen and her lawyer is

also in breach of guarantees of Articles 9 and 10A of the

Constitution to meaningful life and liberty and fair trial and due

process. The act of recording and releasing private and

privileged conversation between a citizen and her counsel

undermines attorney-client confidentiality and a citizen’s right to

access justice. He states that the illegally recorded audios were

released subsequently and were aired by mainstream electronic

media in breach of the guidelines prescribed by PEMRA. The

transmission continued on T.V networks all day and PEMRA took

no action and prevent the same. Subsequently print media also

published stories reporting the conversation aired at harassing

and blackmailing the petitioner.

3. The Constitution guarantees the right to privacy and

dignity. It also guarantees the fundamental right to liberty.

These declarations in Chapter 1 of Part II of the Constitution are

not platitudes, but are actionable entitlements of citizens that

cannot be usurped by the State or servants of the State. The

Constitution is rooted in a scheme which provides for separation

of powers and checks and balances. The judiciary acts as the

machinery for enforcement of fundamental rights. Within our

constitutional jurisprudence, access to justice has been

recognized as a fundamental right guaranteed by Article 9. And

the right to a counsel and access to the counsel is a subset of

the right to access justice, which cannot be undermined by

intercepting and publishing privileged attorney-client

conversations.
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4. That the phone conversations of the petitioner continue to

be recorded and released while the matter is subjudice is most

disconcerting. The Federal Government has already been put to

notice with regard to the grave transgression of fundamental

rights to privacy and dignity attributed to the Federal

Government and its instrumentalities. The continuation of illegal

survailance in a manner that flouts attorney-client privilege is a

manifestation of the sense of impunity that perpetuates the

practice of illegal survailance. The repeat of actions that are

subjudice engenders an unfortunate perception that the Federal

Government and its instrumentalities are either incompetent and

thus incapable of discharging the obligation of the State to

protect the fundamental rights of citizens or complicit in making

illegal and unconstitutional practices all pervasive.

5. The breach of fundamental rights of citizens, if established,

is not without consequence. It has most recently been held by

the Supreme Court in Constitution Petition No. 32/2023

(Supreme Court Bar Association of Pakistan vs. Federation

of Pakistan) that Article 212(1)(b) of the Constitution promises

to indemnify citizens against the tortuous acts of the

Government or any person in the service of Pakistan. And till

such time that a special tribunal is constituted for such purpose,

the High Court may afford such remedy where the rights of

citizens are breached due to failure of the State and its servants

to discharge their constitutional or statutory obligation.

6. Let notices be issued to the respondents. Respondents

No.1-C, 2 and 3 shall file responses. Let respondent No.3 in its

report and response explain how a leaked private conversation

can be allowed to be transmitted on TV channels. Let respondent

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No.2 undertake an inquiry and forensic analysis of the data

available on social media including on YouTube, Twitter and

Facebook to determine the accounts through which the

information was first released and identify the IP addresses in

order to ascertain the identity of individuals who first released

such information. Let Chairman PTA also conduct an inquiry to

determine the identity of IP addresses and individuals who first

uploaded the leaked audio and to do so seek requisite

information and assistance from the social media companies,

while advising them that such assistance is required under the

law of Pakistan for compliance with a Court order. Let a copy of

the application also be sent to the Director General of Inter-

Services Intelligence (ISI), who heads the country’s premier

intelligence agency that functions under the control of the Prime

Minister’s Office. Let DG, ISI conduct an investigation using all

technological means and tools available with the ISI and

determine independently the identity of those who released the

audio on social media (i.e. YouTube, Twitter and Facebook etc.)

and file a report for the perusal of this Court. Let all reports and

responses be filed within a period of 10 days.

7. The DG Law PTA will appear in person on the next date of

hearing and explain the details of the report solicited and also

whether any instructions have been issued to PTA’s lincensees to

enable phone tapping. The Director Law for PEMRA will also

appear in person on the next date of hearing along with the

relevant code of conduct for electronic media that PEMRA

enforces and explain whether the audio leaks such as the one

has been released between the applicant and her lawyer could
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be telecast on National TV, and if not, what remedial and/or

regulatory action was taken by PEMRA in such regard.

8. Let the office transmit copies of this order along with

copies of the application and annexures to Chairman PEMRA, DG,

ISI, DG, FIA and Chairman PTA for information and compliance.

9. To be heard along with W.P No.1805 of 2023. Let these

clubbed matters be fixed for hearing on 20.12.2023 so that the

Court has the benefit of perusing the reports solicited through

this order.

(BABAR SATTAR)
JUDGE
Shakeel Afzal