P L D 2026 Balochistan 64

 P L D 2026 Balochistan 64

Before Shaukat Ali Rakhshani and Muhammad Ayub Khan Tareen,

JJ

FAROOQ ANWAR ADVOCATE SUPREME COURT ---Petitioner

Versus

SUB INSPECTOR AYAZ KHAN SHO/INVESTIGATION OFFICER, FIA,

CYBER CRIME CIRCLE, QUETTA and 2 others ---Respondents

Constitutional Petition No. 373 of 2025, decided on 24th September,

2025.

Legal Practitioners and Bar Councils Rules, 1976---

----R. 134---Prevention of Electronic Crimes Act (XL of 2016), S.21---

Lawyers Welfare and Protection Act (XII of 2023), S. 9---Qanun-e-

Shahadat (10 of 1984), Arts. 9 & 12---Counsel and client relationship--

-Privileged communication, protection to---Petitioner was practicing

lawyer and authorities issued him notice to explain regarding

transmission of obscene material to his cell phone by his client---

Validity---Member of Bar, as per R.134 of Legal Practitioners and Bar

Councils Rules, 1976 is under bounden duty to maintain a high

standard of his profession in addition to his own dignity---If a

counsel opts to share anything with somebody which he came across

during the period of his engagement by a particular party, such

counsel would be lowering down the dignity of the profession and is

guilty of misconduct---Petitioner was bound to maintain

confidentiality about the facts which came into his knowledge as a

result of his engagement---Such shield is not absolute and privilege

does not extend to situations where lawyer himself indulges in

illegal purpose and becomes a vehicle for transmitting obscene or

unlawful material or conceals facts showing that a crime or fraud

had been committed---In such case protection is withdrawn as the

law does not shelter complicity under the guise of confidence---

Issuance of notice to petitioner merely for being recipient of

material sent by his client without any suggestion of active

involvement was an overreach---Investigating authorities did not

have the entire and total authority of running investigation

according to their whims---Investigating Officer acted beyond his

authority and jurisdiction by violating provision of law--- High Court

directed Director General of FIA to take disciplinary action against

the investigating officer---High Court quashed the notice issued to

petitioner---Constitutional petition was allowed in circumstances. Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC

51; Muhammad Maqsood Sabir Ansari v. District Returning Officer

Kasur PLD 2009 SC 28 and Muhammad Yaqoob Khan v. Adalat Khan

1983 CLC 976 ref.

Adnan Ejaz Sheikh along with Petitioner Farooq Anwar.

Baqir Bakhtiar, Assistant Attorney General assisted by Umer Saeed,

Assistant Director (Legal) and Ayaz Khan, S.I, F.I.A. for Official

Respondents.

Date of hearing: 17th September, 2025.

JUDGMENT

SHAUKAT ALI RAKHSHANI, J.---The instant constitutional petition

filed by the petitioner under Article 199 of the Constitution of Islamic

Republic of Pakistan, 1973 (Constitution"), carries the following relief;

"It is accordingly respectfully prayed that this Hon'ble Court may be

pleased to call the respondents Nos. 1 and 2 as to under that law

the petitioner name has been mentioned as accused and after

inquiry cancel the notice under section 160 Cr.P.C. served to the

petitioner with any other relief, in the interest of justice"

2. Condensed, but relevant facts essential for disposal of the case in

hand are that the petitioner is a practicing advocate, who is

representing his client Mubashir Naeem in three cases. Per petitioner,

during pendency of the said cases, respondent No.1 served him with a

notice under section 160 of the Criminal Propedure Code, 1898

("Cr.P.C.) to offer explanation, regarding transmission of the obscene

material to his cell number by his client.

3. Learned counsel for the petitioner inter alia contended that notice

issued the petitioner under section 160 of Cr.P.C. is contrary to law and

facts. Argued further that the petitioner being a practicing advocate

was engaged by his client and has every right to defend him before

any court of law and whatever was shared by his client with him was

just for the purpose of brief and evidence, which was professional and

confidential communication and the same is protected under the

advocate-client relationship, more particularly, when respondent No.1

has failed to establish that the alleged material was transmitted by him

to elsewhere with the purpose to publicly display. Maintained ahead

that the petitioner could not divulge any professional communication,

so taken place between him and his client, which is otherwise

guaranteed by the Constitution and Articles 9 and 12 of the Qanun-e-

Shahadat Order, 1984, ("Order of 1984"), Lastly prayed that the impugned notice needs to be quashed as the same has been issued by

respondent No.1 to cover his nefarious design only to intimidate,

defame the petitioner and become a witness against his client, which is

against the norms, ethics of advocacy and law.

Conversely, learned Asst. Attorney General along with Assistant

Director (Legal) FIA unanimously opposed the contentions so put forth

by the learned counsel for the petitioner and urged that notice under

section 160 of Cr.P.C. was rightly issued against the petitioner as the

obscene pictures and videos were transmitted by the accused to the

petitioner's cell number, thus it was mandatory to inquire from the

petitioner, regarding the said act, henceforth requested for dismissal

of the petition.

4. Heard. Record perused in view of the valuable arguments of

learned counsel for the adversarial parties.

5. It is case of the petitioner that he is a practicing Advocate and was

counsel for his client namely Mubashir Naeem, who filed a suit for

conjugal rights against Mehwish (wife of his client), whereas in

rebuttal, said Mehwish also filed a suit for dissolution of marriage

against his client, which are pending adjudication before learned

Family Judge-IV, Quetta. However, during pendency of the suits, an FIR

bearing No.07 of 2025 was registered with Federal Investigation

Agency Cyber Crime Reporting Center, Quetta by said Mehwish against

his client Mubashir Naeem under sections 21 (b) (c) (d) and 24 (a) (d) of

Prevention of Electronic Crimes Act, 2016 ("PECA Act, 2016"), alleging

therein that her husband is in possession of her obscene (Nude) videos

and pictures. According to the petitioner, he represented his client

Mubashir Naeem in all three above mentioned cases, but with utmost

surprise, respondent No.1, on 14.03.2025 served him with a notice

under section 160 of Cr.P.C., stating therein to appear before the

inquiry officer on 24.03.2025 to offer explanation, regarding

transmission of the said obscene pictures and videos.

6. In the quiet chambers of this case, a question echoes the loudest;

whether a practicing Advocate, representing his client could be served

with notice for not divulging the information of his client, which is

otherwise confidential ?

7. To untangle the complexities of the matter in hand, it would be

advantageous to reproduce Articles 9 and 12 of the Qanun-e-Shahadat

Order, 1984 ("Order of 1984"), which reads as under;

"9. Professional communications. No advocate shall at any time he

permitted, unless with his client's express consent, to disclose

any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of

his client, or to state the contents or condition of any document

with which he has become acquainted in the course and for the

purpose of his professional employment, or to disclose any

advice given by him to his client in the course and for the

purpose of such employment:

Provided that nothing in this Article shall protect from discosure---

(1) any such communication made in furtherance of any illegal

purpose; or

(2) any fact observed by any advocate, in the course of his

employment as such, showing that any crime or fraud has been

committed since the commencement of his employment,

whether the attention of such advocate was or was not directed

to such fact by or on behalf of his client.

12. Confidential communications with legal advisers. No one shall

be compelled to disclose to the Court, tribunal or other authority

exercising judicial or quasi-judicial powers or jurisdiction any

confidential communication which has taken place between him

and his legal professional adviser, unless he offers himself as a

witness, in which case he may be compelled to disclose any such

communications as may appear to the Court necessary to be

known in order to explain any evidence which he has given, but

no others.

8. Bare perusal of articles ibid manifests that it is a privilege of an

advocate to maintain the secrecy, which is a foundational principle to

the advocate-client relationship and is recognized in nearly all legal

systems. A lawyer cannot be pressurized or compelled to disclose

confidential client information, except under strict legal exceptions.

This protection exists to preserve client trust, due process, and the rule

of law as the same is protected by advocate-client privilege and the

duty of confidentiality, which are fundamental legal principles

designed to uphold the integrity of the legal justice system.

9. To protect the legal practitioners, while discharging their duties

and for their welfare, the Government of Pakistan introduced the

Lawyers Welfare and Protection Act, 2023 ("Act of 2023"), which aims

to shield advocates from violence, threats, intimidation, assaults,

harassment, or other external pressures that could prevent them from

doing their professional work freely. For ease of convenience, section 9

of the Act of 2023 is facsimile hereunder,

"9. Privileged communication of advocate. Notwithstanding

anything contained in any other law for the time being in force

(a) no person, public servant or any authority shall have the power

to arrest, detain, investigate any advocate under any law for the time being in force to obtain any document, material or any

information from such advocate pertaining to his professional

duties; and

(b) the violation of the clause (a) shall be deemed as act of violence

within the meaning of section 2."

Similarly, section 2 of the Act of 2023 provides the definitions,

wherein it has been provided as under,

"2. Definitions; (1) In this Act, unless the context otherwise

requires:-

(a) "act of violence" means any act committed by any person against

an advocate with the intent to prejudice, affect or derail the

process of impartial, fair and fearless conduct of cases before

any court, tribunal or authority by which such advocate is

engaged and shall include the following:

(i) harassment, coercion, assault, criminal force or threat impacting

the living or working conditions of such advocate and

preventing him from discharging his duties;

(ii) harm, injury, hurt either grievous or simple, or danger to the life

of such advocate, either within the premises of the courts or

otherwise:

(iii) coercion by whatsoever means, by any person or authority to

reveal or part with privileged communication or material which

an advocate is bound to hold in confidence under the law;

(iv) coercion by whatsoever means of an advocate not to represent

or to withdraw his Vakalatnama or appearance to act, plead or

appear on behalf of a client before any court, tribunal or

authority:

(v) loss or damage to any property or documents or material which

such advocate is bound to hold under the law, or

(vi) usage of derogatory language during the course of the judicial

and quasi-judicial proceedings.

(b) "advocate shall have the same meaning as assigned thereto in

the Legal Practitioners and Bar Councils Act, 1973 (XXXV of

1973):

(c) "Bar Council" shall have the same meaning as assigned thereto in

the Legal Practitioners and Bar Councils Act, 1973 (XXXV of

1973):

(d) "Code" means the Code of Criminal Procedure, 1898 (Act No. V of

1898);

(e) "Court" means the court notified under section 5 or established

under any other law; (t) "Government" means the Federal Government or the Provincial

Government, as the case may be and

(g) "offence" denotes any act made punishable under this Act or

under any other law for the time being in force, and

(h) "privileged communication" shall have the same meaning as

given in the Oamun-e-Shahadat, 1984 (P.O. No. 10 of 1984), (2)

Any expression or words used in this Act but not specifically

defined shall have the same meaning as assigned thereto in the

Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)

and the Pakistan Penal Code, (Act XLV of 1860)."

[Underline is ours]

10. Section 9 of the Act of 2023, clearly demonstrates that an

advocate, who is engaged as counsel for his client is protected by

advocate-client privilege and by the duty of confidentiality, thus

whatever the communication is shared among them is protected by

the law for the time being and an authority cannot force him for

obtaining any document, material or any information from such

advocate, pertaining to his professional duties and its non-adherence

would be treated as a act of violence as contemplated under section

2(a) of the Act of 2023, which may result into initiation of criminal

proceedings against the violator.

11. Be that as it may, the communication between a client and his

counsel is cloaked in privilege and lies at the heart of the

administration of justice. This protection is not a matter of

convenience, but a matter of principle, rooted in the sanctity of the

advocate-client relationship. Moreso, the element of confidence is

absolute and the counsel cannot be compelled in any investigation

process, including proceedings initiated by the authorities to reveal

the contents, documents, or videos entrusted to him by his client.

Thus, where an accused transmits material, however, sensitive, to

his advocate for legal purposes that squarely falls within the privilege

communication, and the lawyer cannot lawfully be served with the

notice calling upon to disclose a fact, which is the sanctity and

confidence that the law guards with the special care, ensuring that the

advocate remains the custodian to his client's trust.

12. The Supreme Court of Pakistan, in a well celebrated judgment

titled as Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf" (PLD

1963 SC 51), made reference to the then sections 126 and 129 of the

Evidence Act, 1872 (now Article 9 of the Order of 1984) that

communication made by a client with his legal adviser in confidence

for the purpose of legal advice are absolutely protected and the

counsel cannot be compelled to disclose nor may he do so of his own

accord. If the client consents to disclosure, whether expressly or by

voluntarily placing the material on record, the protection is

considered waived, and the court may treat the communication like

any other piece of admissible evidence, but until such waiver is given, neither an investigating agency nor the court can force to open the veil

of confidence that shields the advocate-client relationship.

Likewise, the apex court in the case of "Muhammad Maqsood Sabir

Ansari v. District Returning Officer Kasur" (PLD 2009 SC 28), while

referring to the case of Muhammad Yaqoob Khan v. Adalat Khan (1983

CLC 976) held that obligation laid down in section 9 of the Order of

1984 continues even after the employment is ceased. It would thus

appear that there was a legal impediment for a counsel to divulge any

communication or information, which he happened to have had

received from his client, during his employment. Moreso, furthermore

if, a counsel shares the knowledge acquired by him during his

engagement as an advocate is not only unethical, but in patent

violation of Article 9 of the Order of 1984 as the provision in question

expressly prohibits an advocate from disclosing any communication

made to him in his capacity as an advocate for the party.

13. So be it, the affairs of the members of the legal fraternity are

governed under the Legal Practitioners and Bar Councils Act, 1973 as

well as Pakistan Legal Practitioners and Bar Councils Rules, 1976

("Rules of 1976"). Chapter XII of the said rules deals with the cannons

of Professional conduct and Etiquette of Advocates, whereas part B of

the said Chapter provides guidelines for advocate-client relationship.

As per rule 134 of the Rules of 1976, a member of Bar is under

bounden duty to maintain a high standard of his profession in

addition to his own dignity. If a counsel opts to share anything with the

somebody about which he came cross during the period of his

engagement by a particular party, perhaps on the one hand he would

be lowering down the dignity of the profession and on the other would

be guilty of misconduct, thus an advocate is bound to maintain

confidentiality about the facts, which came into his knowledge as a

result of his engagement.

14. Still and all, the shield is not absolute. Privilege does not extend

to situations, where the lawyer himself indulges in illegal purposes

and becomes a vehicle for transmitting obscene or unlawful material

or conceals facts showing that a crime or fraud has been committed,

thus in such case, the protection will be withdrawn, for the law will

not shelter complicity under the guise of confidence.

15. In the instant case, admittedly, the petitioner was counsel for his

client in two suits and in a criminal trial of PECA Act, 2016, which fact

was admittedly known to the officials of FIA. Similarly, the FIA officials

have also failed to establish that the obscene pictures and videos were

further transmitted from the mobile of the petitioner to somewhere

else with the purpose to publicly exhibit and transmit the said

material. In this context, learned counsel for the petitioner stressed

that the petitioner had time and again informed respondent No.1 that he has nothing to do with the obscene material and whatever his client

had transmitted him was for the purpose of evidence, but yet

respondent No.1 kept asking him to come to his office and lastly sent

him notice under section 160 of Cr.P.C., wherein he has been labeled as

proposed perpetrator.

The issuance of notice to a counsel merely for being the recipient of

material sent by his client, without any suggestion of active

involvement is an overreach, thus the investigating authorities does

not have the entire and total authority of running investigation

according to their whims. Even otherwise, not to speak only for the

protection afforded to an advocate under the rule of privilege, even an

ordinary recipient of obscene or indecent content cannot be fastened

with liability under section 21 of the PECA, 2016 as the provision

penalizes those, who intentionally exhibit, display, transmit,

intimidate or entice through sexually explicit material, but it nowhere

criminalizes the passive receipt of such content. Mere receipt, without

any act of transmission or public exhibition, does not fall within the

mischief of the section ibid.

Thus, when the legislature itself has refrained from treating a

recipient as culpable, there can be no basis to compel an advocate,

who is in any case doubly shielded by the sanctity of professional

privilege to disclose or answer for material confided in him by his

client, thus mere recipient, who does nothing, but receives, is not

covered in the language.

16. That apart, the United Nations General Assembly in its various

resolutions has set the global standards and principles in align with

acts, more specifically at the Eighth United Nations Congress on the

Prevention of Crime and the Treatment of Offenders, held in Havana,

Cuba, in September 1990, while adopting the "Basic Principles on the

Role of Lawyers' and solicited the governments to ensure that lawyers

can carry out their professional duties without intimidation,

harassment, or improper interference, and whenever the lawyers face

threats due to their professional activities, the authorities are

obligated to provide them with adequate protection.

17. For what has been discussed hereinabove, we are of the mindful

view that respondent No.1 has acted beyond his authority and

jurisdiction by violating the provisions of the rules and acts discussed

in hereinabove, thus, we, deem it appropriate to direct the Director

General, FIA to take disciplinary action against Ayaz Khan Sub-

Inspector FIA Cyber Crime Circle, Quetta (respondent No.1) and submit

report thereof to the Registrar of this Court for our perusal in

chambers.

18. For the foregoing reasons, the petition is allowed and

consequently notice issued to the petitioner under section 160 of

Cr.P.C. is declared null and void, having no legal effect.

MH/129/Bal. Petition allowed.