Athar Minallah, J.

- I have had the privilege of carefully reading

the order. With great respect, I have not been able to persuade myself

to endorse paragraphs 1 to 12 at this stage. The question whether the

Prime Minister can be called on the administrative or judicial side

and whether in the facts and circumstances of the case before us,

particularly the nature of the complaint, the constitution of the

commission by the executive branch of the State in exercise of its

powers conferred under the Pakistan Commissions of Inquiry Act,

2017 would have been in breach of the principle of independence of

judiciary are yet to be considered by the full Court. Moreover, larger

benches of this Court, while exercising the extraordinary jurisdiction

under Article 184 (3) of the Constitution of the Islamic Republic of

Pakistan ('Constitution'), have already exercised the power of

constituting commissions and, therefore, this question is also open to

be decided in this case on the judicial side by the full Court. All these

questions are likely to be considered by the full Court in the present

proceedings and, therefore, propriety requires that I restrain myself

from commenting on these issues. It was for this reason that I could

not persuade myself to endorse paragraphs 1 to 12 at this stage,

while I concur with the remaining order. In order to appreciate the

gravity and the extent of public importance involved in the matter

brought before us I deem it appropriate to briefly record some

preliminary observations.

2. Six judges of a constitutional court, the Islamabad High Court,

have brought to the attention of the Supreme Court grave and

serious interference in judicial proceedings and intimidation of judges

by the executive branch of the State and its organs. They have

recorded specific instances of such interference and intimidation.

They have stated that they were compelled to seek guidance because
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certain questions have been left open by this Court while deciding the

case of Justice Shaukat Siddiqui1. It is obvious from the letter that

they had raised the issue before all the relevant forums but, despite

the seriousness of matter, there was no institutional response. The

matter was also promptly brought to the attention of the former Chief

Justice of Pakistan, who at that time had the exclusive power to

invoke suo moto proceedings under Article 184 (3) of the

Constitution. The matter was serious and its implications in the

context of the independence of judiciary were so grave that there

could not have been any conceivable justification for the then pater

familias of the institution to ignore it and, instead, choose to look the

other way. The institutional insensitivity is manifest from the letter. It

also reflects a culture of accepting the practice of manipulation of

judicial proceedings by the executive branch of the State through

interference and intimidation. The institutional response relating to

the most serious and grave acts of interference in judicial

proceedings and intimidation of judges could have been justifiably

understood as an acceptance of practices, standards and norms

which have profound consequences for the independence of the

judiciary. The letter by the six judges, therefore, raises questions

regarding the institutional commitment to uphold the Constitution

and the independence of the judiciary. The interference and

intimidation, as reported in the letter, is in relation to certain

'politically consequential matters' and, in support, instances have

been described in the letter. The Attorney General has referred to the

political engineering in 2018 by organs of the executive branch to

manipulate and interfere with judicial proceedings in 'politically

consequential matters' then. This Court was also perceived to be

1
Shaukat Aziz Siddiqui v. Federation of Pakistan and others (Const.P.No.76 of 2018 decided on
22.3.2024)
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complicit, rather seen as a willing partner. Though not every judge

could be influenced or pressurised at that time and their judgments

speak for themselves but the culture of deviancy was accepted as a

norm because the institution was perceived to be complicit. The

phenomenon of interference with and manipulation of 'politically

consequential matters' has remained an acceptable norm which is

manifested from the unflattering role of the judicial branch for the

past seventy six years. This phenomenon has, prima facie, relegated

the principle of independence of judiciary to a mere platitude. This is

what has been highlighted by the six judges in their letter. The

normalisation of the culture of deviancy profoundly erodes and

undermines the independence of judiciary. The assiduous

entrenchment of such normalisation has made unacceptable

practices, standards and norms as acceptable within the institution.

The six judges have drawn the attention of this Court to a matter

which definitely is of paramount public importance, having profound

consequences in the context of safeguarding the fundamental rights

of the citizens.

3. The six judges of the Islamabad High Court have sworn oaths

under the Constitution and, therefore, a presumption of credibility

and truth is attached to what they have highlighted in the letter

unless it is rebutted. They have done what every judge is bound by

the oath to do; uphold the Constitution and the independence of the

judiciary. There is no conceivable justification to doubt their

intention in bringing on record a matter of the highest public

importance. It is noted that the letter was in the nature of an internal

institutional correspondence and it was not meant to be made public.

The judges had reasonable grounds to seek guidance and that is

what they had explicitly sought. They had blown a whistle internally
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and as whistle blowers they were required to be dealt with carefully

because the whistle blowing was in public interest. This Court in the

present proceedings also has to consider evolving jurisprudence

which does not deter internal whistle blowing because of the public

importance associated with it. No one within the institution must fear

that blowing whistle internally could lead to unimaginable

consequences having the effect of being thrown to the wolves. Such

an approach would profoundly undermine the internal independence

of judiciary. It was, in my opinion, premature for the executive to

constitute a commission and, prima facie, in breach of the

independence of judiciary. The matter is now subjudice before the full

Court. The full Court will consider whether an inquiry is required

and, if so, the nature of the inquiry is also likely to be determined on

the judicial side having regard to safeguarding the independence of

judiciary. It is noted that in Air Marshal Asghar Khan's case2 the

factual aspects were determined by this Court on the basis of

affidavits while in Dharna case3 credible print media reports and

other material placed on record were relied upon. This crucial aspect

has yet to be considered by the full Court in these proceedings. The

judges are not complainants but they had solicited advice and

guidance. Nonetheless, they have referred to instances of intimidation

and interference. The onus is on the State and the executive to

demonstrably satisfy the full Court that there has been no

interference nor attempt to manipulate judicial proceedings in

specific 'politically consequential matters'. What has been highlighted

in the letter as a phenomena appears to be a continuation of the

unacceptable practices and norms that have been made acceptable in

the past seventy six years. The judges have highlighted the

2
M.Asghar Khan v. Mirza Aslam Baig (PLD 2013 SC 1)
3
Suo Motu action regarding Islamabad-Rawalpindi Sit in/Dharna (PLD 2019 SC 318)
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institutional insensitivity. The Attorney General has referred to

political engineering in specific politically consequential matters in

the past while it appears from the letter of the six judges that it

continues unabated even today. The impunity against intimidation of

the judges and interference in judicial proceedings in politically

consequential matters cannot be denied, rather it has been affirmed

by this Court repeatedly. The recent opinion by a larger Bench in

Reference No.1, relating to the trial and appeal proceedings which

had sent an illegally deposed Prime Minister, Zulfiqar Ali Bhutto, to

the gallows is an acknowledgment of the worst form of manipulation

of judicial proceedings. It is a blemish on the institution which

cannot be removed. Air Marshal Asghar Khan’s case is enough to

demonstrate the extent of interference. What could have been a more

atrocious form of interference than the reference proceedings against

the present Chief Justice of Pakistan which was declared as

unconstitutional and based on malafide by a larger bench of this

Court in Justice Qazi Faez Isa case. The recent judgment of this

Court in the Dharna case has also unequivocally affirmed

interference by the executive and its organs. This Court has observed

as follows:-

“Pursuant to the judgment in Air Marshal Asghar

Khan’s case the involvement of ISI and of the member
of the Armed Forces in politics, media and other
“unlawful activities” should have stopped. Instead
when TLP’s dharna participants received cash
handouts from men in uniform, the perception of their
involvement gained traction. The Director General of
the Inter-Services Public Relations (“ISPR”) has also
taken to commenting on political matters: “history will
prove the 2018 general elections were transparent”. The
Armed Forces, and all agencies manned by the
personnel of the Armed Forces, including ISI, Military
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Intelligence (“MI”) and ISPR serve Pakistan, and thus

all its citizens. They must never be perceived to support
a particular political party, faction or politician. If any
personnel of the Armed Forces indulges in any form of
politicking or tries to manipulate the media he
undermines the integrity and professionalism of the
Armed Forces. The duties of the Armed Forces are
clearly spelt out in the Constitution, they, “shall under
the direction of the Federal Government defend Pakistan
against external aggression or threat of war, and,
subject to law, act in aid of civil power when called upon
to do so”. We must not allow the honour and esteem
due to those who lay down their lives for others to be
undermined by the illegal actions of a few.”

4. The letter of six judges confirms that the cases of Asghar khan

and the Dharna could not stop interference in judicial proceedings

and that the judgments are being brazenly violated. The letter

manifests the phenomena of normalisation of deviancy culture within

the institution and outside which has profound consequences for the

independence of the judiciary. No one has ever been held

accountable, which has created impunity for the worst form of

mutilation of independence of judiciary. The public trust in the

judicial system is eroded when the courts are perceived to be

compromised. The flagrant violations of fundamental rights of the

citizens and perceived failure of the courts to safeguard individual

freedoms and rights severely undermines public confidence in the

institution. The citizens would, therefore, be justified in raising

questions regarding the independence of judiciary. As judges of the

highest constitutional court we cannot turn a blind eye and ignore

the grave abuse of powers by the executive which have consequences

for individual freedoms and rights. We all know the reality but

pretend to be ignorant. The six judges have raised the crucial

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question of 'whether there exists a continuing policy on part of the

executive branch of the State, implemented by intelligence operatives

who report to the executive branch, to intimidate judges, under

threat of coercion or blackmail, to engineer judicial outcome in

politically consequential matters'. The other crucial question that has

arisen from the letter, as already discussed, is regarding

normalisation of the culture of deviancy. Both these critical questions

erode and undermine the independence of judiciary. The onus is on

the Federal Government to establish before this Court that it is not so

and to assist in resolving the questions raised in the order.

(Justice Athar Minallah)

APPROVED FOR REPORTING