Misuse Of Authority By State Can Create Animosity Against State Institutions: SC

Three-judge bench rules that complaint under Section 196 can only be made by order of or under authority from, the federal govt or the empowered officer, which was not the case here

Misuse Of Authority By State Can Create Animosity Against State Institutions: SC

The Supreme Court on Tuesday quashed an FIR lodged against ARY New’s Director News Ammad Yousaf, as it observed that the state must exercise its power and authority in accordance with the Constitution because the misuse of authority creates a sense of fear and insecurity in the society, which consequently results in creating hatred against the State’s institutions.

"Every citizen has a right of political and social justice, freedom of speech and thought, subject to a reasonable restriction imposed by law," observed a three-judge bench of the of the Supreme Court (SC) headed by Justice Ijazul Ahsan and comprising Justice Jamal Mandokhail and Justice Shahid Waheed. The observations were contained in the verdict of the bench which was authored by Justice Mandokhail. The three judge bench had heard Yousaf's appeal, seeking the quashment of the FIR against him in September but had reserved its judgement, which was issued on Tuesday.

It further observed that the print and electronic media are the means of receiving and providing such information to and from the people.

"The manner in which the petitioner (Ammad Yousaf) was proceeded against, amounts to inciting fear not only amongst the entire administration of the broadcaster, but will also have an impact upon rest of the print and electronic media, which will certainly obstruct their constitutional right,” the top court held.

Justice Jamal Khan Mandokhail, in the 11-page judgment, observed that politically motivated FIRs are being registered for offences mentioned in Section 196 of the Criminal Procedure Code (CrPC), which is mostly used against politicians, political workers, media persons, and human rights activists, and in some cases against their family members as well. 

"It is hard to believe that the chosen representatives of the people, political activists, right activists and media persons can indulge themselves in anti-state activities. The act of indulging its citizens in malicious and frivolous prosecution by the government without any substance on the plea that the thoughts are anti-State, amounts to undermining the constitutional command and as such, depriving citizens from their fundamental rights of freedom of movement, assembly, speech, and right to information," the judgment stated. 

On August 8, 2022, ARY News had broadcast telecasted a live television programme, wherein Pakistan Tehreek-e-Insaf (PTI) leader Shahbaz Gill expressed his views about certain state institutions in response to a question. 

An Islamabad Magistrate considered that the alleged views aired on national television against the armed forces constituted serious and cognizable offences. 

The next day, an FIR under Sections 120-B, 121-A, 124, 131, 153, 153-A, 505, 506, 201, and 109/34 of the Pakistan Penal Code (PPC) was lodged at the Kohsar Police Station in Islamabad which nominated Gill as the main accused, and other unidentified people. 

These sections relate to waging of war against Pakistan; assaulting the President, Governor etc; promoting enmity between different groups; and abetting mutiny within the armed forces.

Yousaf was not nominated in the initial FIR, but his name was included during the investigation by the investigation officer assigned to the case through a supplementary statement which accused him of conspiring along with Shahbaz Gill.

After concluding the investigation, a report under Section 173 of the CrPC was submitted before an Additional Sessions Judge in Islamabad. 

Before the trial court could frame charges, Yousaf filed an application under Section 265-D of the CrPC, claiming that the trial court could not take cognizance of the matter nor was there any material to frame charges against him. 

Yousaf sought his acquittal in the case through his application. 

However, on December 12 of 2022, the trial court dismissed the application following which Yousaf preferred a Criminal Revision which was also dismissed by the Islamabad High Court (IHC) on February 14 this year.

"When citizens are put in fear, they cannot perform their functions freely, which amounts to preventing them from contributing towards society in accordance with the Constitution, law and as per their conscience," the top court said.

"In such a hostile atmosphere, the media cannot also perform its functions freely, rather it will undermine the freedom of speech, expression, and access to information of the citizens, as guaranteed by the Constitution, resulting into mistrust in the institutions."

The top court further observed that a democratic government is considered to be by the people, of the people and for the people, adding, "it must, therefore, develop an atmosphere of tolerance, to promote political and social justice; to create a habit of listening to healthy criticism, which is the beauty of democracy."

"Thus, the government must accept the will of the people, instead of considering its critics and political opponents as enemy of the state, to avert hatred and mistrust of citizens upon the institutions, by refraining itself from misusing the power and authority and to avoid malicious, baseless and frivolous prosecution against its citizens."

The top court further noted that the special procedure adopted in accordance with the Section 196 of the CrPC for registering an FIR under the abovementioned sections was not followed.  

According to Section 196, no court shall take cognisance of any offence punishable under Chapter VI or IX-A of the PPC unless upon complaint made by order of or under authority from, the federal government or officer empowered. 

The top court observed that the intent of the legislature is to limit a government to prosecute a person for offences mentioned in Section 196 of the Code, only upon a complaint in court, instead of registering an FIR, to ensure transparency and impartiality. 

"A complaint is filed before a judicial magistrate, who being a judicial officer, is free from the government’s influence. He is supposed to perform his functions fairly, efficiently, without any pressure and interference.” 

"On the other hand, the police officials, who are part of executive, are admittedly in subordination to the government(s) concerned, therefore, an independent investigation cannot be expected." 

However, the top court held that prosecution in offences other than those mentioned in section 196 of the code can be initiated through an FIR, as provided by Section 154 of the CrPC.

"It is a well settled principle of law that when a law stipulates that something has to be done in a prescribed manner, it must be done in that manner and should not be done otherwise.” 

"The object and purpose of giving power only to the government concerned or an officer empowered in this behalf for filing a complaint is to prevent unauthorised persons from initiating judicial proceedings in respect of state prosecution regarding the stated offences."

This, the court explained, was to ensure prevention of human rights violations and to ensure prevention of purposeless, malicious, and frivolous prosecutions.

"To prosecute a person for offences mentioned in Section 196, firstly, there must be a complaint only by an order of the federal government or the concerned provincial government or by an officer empowered in this behalf by either of the two governments.” 

After receiving such a complaint and before assumption of the jurisdiction, a judicial magistrate must cross the threshold by applying his mind and analysing the evidence, in order to determine its jurisdiction and to ascertain that on the basis of the available material, charges can be framed. 

"The exercise of inherent powers assigned to the Courts to preserve and protect the rights of the citizens is a mandate of the Constitution, whereas, non-exercise of such powers is a violation of the Constitution and law, hence, is an illegality.”

"The courts, instead of becoming an apparatus for malicious and purposeless judicial prosecution by entertaining baseless and frivolous complaints, must exercise their powers in accordance with law, without fear and favour," the top court observed. 

"If the courts overlook such constitutional mandate and fail to exercise their inherent powers, it will harm the integrity, impartiality, and independence of our criminal justice system. It will undermine and erode the public trust and confidence in our Courts."

The top court noted that the record reflected the federal government had empowered the Interior Secretary to file complaints against those accused of violating Section 196. 

"Admittedly, the Secretary did not file any complaint against the petitioner, rather, the FIR was registered against the main accused under the said sections by the magistrate after getting permission from the Secretary, through a letter dated August 9, 2022," the top court noted. 

The top court said that the secretary has no jurisdiction to redelegate the authority to anyone else. The top court further noted that in the instant case the provisions of Section 196 of CrPC were not considered. 

"Neither an FIR can be registered nor can a permission from the Secretary justify the act of the magistrate."

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain