ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

Writ Petition No. 1805/2023

Mian Najam-us-Saqib
Versus
Federation of Pakistan through Secretary Ministry of Parliament Affairs
Division & others

S. No. of Date of Order with signature of Judge and that of

order/ order/ parties or counsel where necessary.
proceedings Proceedings
(07) 20.12.2023 Sardar Latif Khan Khosa and Ms. Suzain Jehan
Khan, Advocates for the petitioner.
Mr. Mansoor Usman Awan, Attorney General
for Pakistan, Barrister Munawar Iqbal Duggal,
Additional Attorney General and Mr. Aqeel
Akhtar Raja, Assistant Attorney General.
Malik Abdur Rehman, State Counsel.
Ch. Aitzaz Ahsan, Advocate, Amicus Curie.
Barrister Ehsaan Ali Qazi and Mr. Sarmad
Sajjad Ali Khan, Advocates for PEMRA
alongwith Mr. Tahir Farooq Tarar, Head of
Legal Department and Ch. Sajjad Hussain,
Law Officer, PEMRA.
Lt. Col. Kafeel Khan, Director, Ministry of
Defence.
Mr. Muhammad Khurram Siddiqui, Director
General (Law & Regulation), Mr. Taimur
Arshad, Director, Mr. Adil Javed, Assistant
Director (Litigation), and Syeda Itrat Batool,
Law Officer, Pakistan Telecommunication
Authority.
Mr. Ayaz Khan, Additional Director, and
Mr. Imran Haider, Assistant Director, FIA.
Mr. Sherdil Khan, Legal Executive, Ministry of
Information Technology and Telecom,
Islamabad.
Mr. Umer, Sub-Inspector, Police Station
Kohsar, Islamabad.

The learned Attorney General has stated that no law

enforcement or intelligence agency has been authorized by the

Federal Government under the Pakistan Telecommunication

(Reorganization) Act, 1996, or any other law for the time

being in force to intercept or record telephone calls. He states

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that the right to privacy of all citizens must be upheld and

their private phone conversations ought not be recorded, and

such conversations are protected by attorney-client privilege.

The learned Attorney General stated that the Federal

Investigation Agency (FIA) has written to various social media

platforms to seek information with regard to the release of the

voice calls that form the subject-matter of these petitions in

order to determine the source or sources that first released

the illegally recorded calls. He seeks some time on behalf of

FIA to procure such information in order to file a report in

compliance with the order of this Court. Let FIA file such

report within a period of three weeks, and include within such

report details of social media handles that shared the illegally

recorded audio conversation in view of the timing of such

sharing. Let Director General FIA also appear in person on the

next date of hearing and brief the Court as to how such

surveillance and recording of phone calls can take place in

Pakistan.

2. The learned Attorney General further stated that the

Inter-Services Intelligence (ISI) has filed a report through the

Ministry of Defence. A perusal of the said report reflects that it

is ISI’s position that it has no technological capacity to

ascertain the source of release of information on social media

platforms. Let the Intelligence Bureau (IB) also conduct an

inquiry and analysis to identify the social media accounts used

to release and circulate the illegally recorded voice call and the

social media accounts that shared such voice call in view of

time stamps of sharing. Let Director General IB have such

report filed in three weeks and also appear in person on the

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next date of hearing to brief the Court as to who can surveil

citizens of Pakistan, how such surveillance is affected and

whether the State of Pakistan has the ability to counter illegal

surveillance.

3. The Director General (Law & Regulation), Pakistan

Telecommunication Authority (PTA), has appeared and states

that nobody has been authorized to undertake Lawful

Intercepts (“LI”). When asked the Court as to what legal and

regulatory framework exists to require compliance with LI,

given that the licenses of all telecom providers include

provisions requiring facilitation of LI, no satisfactory answer

has been provided to the Court.

4. Given that PTA has not been forthcoming, the Court

deems it essential to implead all the mobile service providers

as well as the six largest fixed-line service providers as

necessary parties, who will file reports explaining the manner

in which LI requirements included in the licenses work in

practice. PTA will provide a list of all mobile operators in

Pakistan as well as the top six fixed-line operators to the

office. The said PTA licensees have been impleaded as parties

in exercise of powers under Order I Rule 10 of the Code of

Civil Procedure, 1908. Let notices be issued to such telecom

service providers, who will file reports providing details of the

license provisions that relate to LI, as well as any and all

correspondence with PTA or any intelligence or law

enforcement agency with regard to LI, and explain how and

under what authority the LI regime works and how information

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is shared with any state authority in relation to voice calls and

other data related to consumers of telecom operators.

5. Chairman PTA will also file a report, alongwith affidavits

signed by him and other members of the PTA certifying such

report to be true, stating under what legal authority LI related

provisions have been included in licenses of telecom service

providers, whether LI compliance is enforced as a requirement

by PTA for issuance of commencement certificates, the

organogram of the department, if any, established to enforce

the LI regime, and any correspondence with telecom service

providers with respect to the LI capacity, compliance and

facilitation. Chairman PTA will also appear in person on the

next date of hearing and brief the Court as to the steps that

can be taken by the telecom regulator to ensure that voice

calls and other data of consumers of telecom system

operational in Pakistan cannot be illegally surveilled or leaked.

6. The learned counsel for the Pakistan Electronic Media

Regulatory Authority (PEMRA) states that the Council of

Complaints is not in place and in view of the observations of

the Supreme Court in Pakistan Electronic Media

Regulatory Authority (PEMRA) through Chairman and

another vs. Messrs ARY Communications Private Limited

(ARY Digital) through Chief Executive Officer and

another (PLD 2023 SC 431), PEMRA cannot take

enforcement action while the Council of Complaints is

dysfunctional. He states that PEMRA has limited authority

under Section 27 of the PEMRA Ordinance, 2002, to issue

prohibition orders and one such order has been issued to the
 -5- W.P. No. 1805/2023

electronic media prohibiting it from broadcasting illegally

recorded private phone conversations, which constitutes

content the broadcast of which is prohibited under the Code of

Conduct applicable to electronic media. He states that no prior

restraints can be applied in relation to speech and it is only

after the broadcast of certain material, even if it is illegal, that

regulatory action can be taken, which in the instant case could

not be taken due to non-existence of the Council of

Complaints. To determine the liability and responsibility of the

media for broadcast and publication of illegally recorded

private conversations of citizen that breach the constitutionally

guaranteed right of citizens to privacy and/or attorney-client

privilege, let the Pakistan Broadcasters Association (PBA) and

All Pakistan Newspaper Society (APNS) be impleaded as

necessary parties, as the illegally recorded voice call was

broadcast across electronic media and reported in the print

media. Let PBA and APNS be issued notices by the office, who

will file a brief on behalf of the media industry stating whether

illegally recorded private conversation can be broadcast and/or

published under the Constitution and the laws of Pakistan, and

if not, the framework available to enforce such prohibition.

7. The Court also deems it essential to seek the assistance

of journalists with regard to the role of the electronic media

and the print media in relation to publishing private

conversations and videos that may have been acquired

through illegal means and how the right of citizens to freedom

of speech and freedom of information and free press is to be

balanced against the right of an individual to dignity. For such

purpose the Court would like to appoint Mr. Mazhar Abbas, Mr.
 -6- W.P. No. 1805/2023

Javed Jabbar and one journalist nominated by Pakistan Federal

Union of Journalists (PFUJ) to assist the Court re the aforesaid

question. The Court would also like to issue notice to the

Pakistan Bar Council, through its Vice Chairman to assist the

Court with regard to how attorney-client relationship ought to

be protected against the threat of illegal surveillance and

voice-tapping. It may file a report if it so wishes.

8. Let the office provide copies of the reports filed by the

respondents to the learned amici and any other counsel for

any of the parties interested in procuring such copies.

9. The Federal Government’s position thus far has been

that no authority or agency in Pakistan is authorized to

undertake electronic surveillance of citizens and record their

phone conversations etc. that none of the law enforcement

and intelligence agencies have the technological capacity to

undertake such surveillance, and none of Pakistan’s law

enforcement and intelligence agencies have the capacity or

ability to determine who might be undertaking such illegal

surveillance of citizens. Given that leaked audios released in

the recent past include audios of two successive Prime

Ministers, the position of the Federal Government that that the

State of Pakistan has no ability or capacity to determine how

such recordings take place and who record them is truly

shocking. The matter at hand involves the ability of the State,

as defined by Article 7 of the Constitution, to protect the

fundamental rights of citizens guaranteed under Chapter 1 of

the Constitution, including the rights to liberty, privacy, dignity

and access to justice, this Court, in discharge of its

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constitutional duties, has no option but to undertake strict and

searching scrutiny of the matter to uphold the fundamental

rights at stake.

10. Let the matter be fixed for 19.02.2024. Meanwhile, the

injunctive order will continue till the next date of hearing.

(BABAR SATTAR)
JUDGE
A. Rahman Abbasi