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Petitioner: Meera Shafi etc VS Respondent: Federation of Pakistan etc
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Meera Shafi etc vs Federation of Pakistan etc Case No.: Writ Petition No. 24397/2021 Date of Judgment:2021-12-24 Reported As: 2022 LHC 1786, PLD 2022 Lahore 773 Result: Petition Dismissed
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan , 1973 (the "Constitution"), lays challenge to the constitutionality of section 20 of the Prevention of Electronic Crimes Act, 2016 ("PECA"), and seeks quashing of FIR No. C-72/2020 dated 25.9.2020 registered under that provision at Police Station FIA Cyber Wing Circle, Lahore. Factual background 2. Petitioner No.1 (Meera Shafi aka Meesha Shafi) is a female artist. On 19.4.2018 she posted a tweet on the Twitter highlighting the vice of sexual harassment in the entertainment industry in Pakistan and accused Respondent No.5 (Ali Zafar) of making excesses against her on more than one occasion. She stated that she was sharing that fact on social media "because I believe that by speaking out about my experience of sexual harassment, I will break the culture of silence that permeates through our society . It is not easy to speak out ... but it is harder to stay silent. My conscience will not allow it anymore #MeT oo." Several other women came up after this statement and some of them alleged that Respondent No.5 had offended them as well. Petitioners No.2 to 6 extended support to them by tweeting in their favour . 3. On 30.4.2018 Petitioner No.1 filed a complaint against Respondent No.5 befor e the Provincial Ombudsperson under the Punjab Protection against Harassment of Women at the Workplace Act 2010. The chairperson dismissed her complaint for lack of jurisdiction and her decision was upheld by the Governor in appeal and subsequently by this Court in constitutional jurisdiction. Petitioner No.1 then filed a petition before the Hon'ble Supreme Court of Pakistan in which leave to appeal was granted to her vide order dated 1 1.1.2021. The said matter is still pending. 4. In the meanwhile, on 23.6.2018, Respondent No.5 instituted a civil suit against Petitioner No.1 under the Defamation Ordinance 2002 in the District Court, Lahore (the "Defamation Suit"). On 8.8.2018 he made a complaint to the Director , Federal Investigation Agency (FIA), Islamabad, requesting action against the social media accounts
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that were engaged in vilification campaign against him. The Petitioners claim that none of the accounts mentioned in that complaint belong to them. Anyway , FIA took cognizance and instituted Enquiry No.1607/2018 dated 14.11.2018. Subsequently , on 20.7.2019 , Respondent No.5 made two more complaints and in one of them (available at page 88 of the file) accused the Petitioners and some other ladies of posting defamatory material against him on social media and requested an action under the PECA. On 25.9.2020 FIR No. C-72/2020 was registered. Notice under Order XXVII-A CPC 5. Since the Petitioners have challenged the vires of section 20 of the PECA and even otherwise because this petition involves important questions that require interpretation of various provisions of the Constitution and statutory law , notice was issued to the Attorney General for Pakistan under Order XXVII-A CPC. Submissions 6. The learned counsel for the Petitioners contends that section 20 of the PECA is unconstitutional for two reasons: first, it is violative of Article 19 of the Constitution inasmuch as it gags free speech and fails the test of reasonableness. Secondly , section 20 of the PECA overlaps sections 499 & 500 of the Pakistan Penal Code, 1860 ("PPC"). There are no guidelines for categorization of the cases to be dealt with under each enactment. She maintains that where a citizen is exposed to prosecution under two distinct laws for the same offence, there must be some criteria on the basis of which the prosecuting authorities may prefer proceedings under one statute over the other . Absent such classification or criteria, the exercise of powers by them is arbitrary and unlawful and constitutes violation of Articles 4 and 25 of the Constitution. 7. In support of her prayer for quashing of FIR No. C-72/2020 Ms. Jillani contends that it has been registered in violation of section 155 of the Code of Criminal Procedure, 1898 ("Cr.P.C."), and Rule 7(5) of the Prevention of Electronic Crimes Investigation Rules, 2018 (the "Investigation Rules"). Therefore, not only the FIR but all the proceedings conducted after its registration are void ab initio. She further contends that FIR No.C-72/2020 is malafide . Respondent No.5 has lodged it to intimidate and silence her witnesses and weaken her defence in the Defamation Suit. She states that owing to these tactics one of the women who accused Respondent No.5 of sexual harassment has withdrawn her allegations. The learned counsel next contends that there is no incriminating evidence against the Petitioners so it would be an abuse of the process of law to continue the trial which has recently commenced. She has further argued that a party aggrieved of defam atory statement must choose between a civil and criminal remedy . He cannot pursue them simultaneously . Respondent No.5 has elected civil remedy by filing the Defamation Suit so he cannot be permitted to prosecute the Petitioners under the criminal law on the same facts. In the current situation the civil and criminal courts may give conflicting findings which must be forestalled. Lastly , it is settled law that where civil and criminal litigation in respect of the same subject-matter are very closely connected, the criminal court should stay its hands till the civil litigation is disposed of. 8. The learned Deputy Attorney General contends that section 20 of the PECA is a valid legislation and the Petitioners' objections thereagainst are misconceived. This fundamental right relating to freedom of speech granted by Article 19 is not absolute and reasonable restrictions can be imposed on it by law. It cannot be abused to defame others. The learned Law Officer further contends that the PECA is a special law for prevention of electronic crimes and its scope is distinct from sections 499 & 500 PPC which is a general law. The two enactments do not overlap and the Petitioners have been rightly charged under section 20 of the PECA. As regards the violation of section 155 Cr.P.C. and the Investigation Rules, he submits that nothing turns on it because the Petitioners have not been prejudiced. 9. The learned counsel for Respondent No.5 has adopted the arguments of the Deputy Attorney General regarding constitutionality of section 20 of the PECA and defended the challan submitted by the police against the Petitio ners and the other accused. Going further , he has raised an objection regarding maintainability of this petition on the premise that the Petitioners have an alternative remedy under section 249-A Cr.P.C. According to him, some of the accused have already invoked that provision and their applications are pending before the learned Magistrate. The learned counsel next contends that there is no bar on conducting civil and criminal cases simultaneously . Even
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otherwise, section 11 of the Defamation Ordinance clearly states that the said statute shall not prejudice any action for criminal libel or slander under any law for the time being in force. Moot points 10. This case involves the following moot points: I. Whether this constitutional petition is maintainable? II. Whether section 20 of the PECA is ultra vires and against the fundamental right relating to freedom of speech guaranteed by Article 19 of the Constitution? III. Whether section 20 of the PECA is discriminatory? If so, it' s effect. IV. Whether FIR No.C-72/2020 has been registered in violation of Rule 7(5) of the Investigation Rules of 2018 read with section 155 Cr .P.C.? V. Whether Respondent No.5 could lodge FIR No. C-72/2020 having elected civil remedy of filing the Defamation Suit on the same facts? VI. Whether the above-mentioned FIR is malafide and there is no incriminating material to support it? Determination Moot Point I 11. It is trite that the jurisdiction of the High Court under Article 199 of the Constitution is extraordinary and should be invoked only when there is no adequate and efficacious alternative remedy . Generally speaking, section 249-A Cr.P.C. (and section 265-K Cr.P.C. in the cases triable by the Sessions Court) is considered to provide such remedy as it empowers the court to acquit the accused at any stage of the trial if it thinks that the charge is groundless or there is no probability of his being convic ted of any offence. Therefore, the High Court should not interfere in the normal course of the trial and quash the criminal proceedings while exercising powers under Article 199 of the Constitution or section 561-A Cr.P.C. However , some authorities hold that the bar is not absolute. Every case has its own facts and in exceptional circumstances the High Court can intervene. In the present case, the learned counsel for Respondent No.5 has pointed out that some of the accused have already filed applications under section 249-A Cr.P.C. before the learned Magistrate which are pending. That, it is argued, is an additional reason why this petition should not be entertained. Admittedly , the Petitioners have not only assailed the vires of section 20 of the PECA but also raised other questions involving interpretation of the Constitution and statutory law which cannot be decided by the Magistrate and that too in an order on the application under section 249-A Cr.P.C. Therefore, I hold that this petition is competent. The objection of Respondent No.5 is overruled. Moot Point II 12. The concept of freedom of speech dates back to ancient Greece where it was cherished as a democratic ideal. The Greeks used the word "parrhesia" which meant 'free speech' or 'to speak candidly'. This term first appeared in the Greek literature around the end of the fifth century B.C. In today' s world freedom of speech is understood as a wider concept of 'freedom of expression' that also includes freedom of press, the right to petition government, and freedom of political association. 13. The freedom of speech is characterized as "the indispensable condition of nearly every other form of freedom" and is, therefore, regarded as a fundamental international human right. Article 19 of the Universal Declaration of Human Rights (1948) proclaims: "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers." Freedom of expression is also recognized by the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples' Rights (ACHPR), the American Convention on Human Rights (ACHR), the Arab Charter on Human Rights (Arab Charter), the European Convention on Human Rights (ECHR), and the ASEAN Human Rights Declaration. 14. Freedom of speech serves a number of objectives. In R v. Secretary of State, ex.p. Simms, (1999) 3 All ER 400, 408 , Lord Steyn stated: "Freedom of expression is, of course, intrinsically important; it is valued for its own sake. But it is well recognized that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society . Secondly , in the famous words of Holmes J. (echoing John Stuart Mill), the best test of1 2 3 4 5
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truth is the power of the thought to get itself accepted in the competition of the market. Thirdly , freedom of speech is the life-blood of democracy . The free flow of information and ideas informs political debate. It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the government and administration of justice of the country ." 15. Peter Tatchell has emphasized the importance of free speech as follows: "Given that free speech is a very precious human right that, in past centuries, peop le gave their lives and liberty to defend, my own view is that there have to be really compelling reasons to restrict it. [ ... ] Otherwise, I agree [ ... ] that the best way to challenge bad ideas is with good ideas. If you simply ban someone, the ideas do not go away , and their supporters are not disabused of those ideas. However , if you challenge them in open debate, and give the evidence and counter-arguments that will discredit them, you can lower their public estimation and standing. You may also persuade some of their followers that they were wrong to adhere to those ideas. That is the most likely way in which to change opinion and to defeat such bigoted views." 16. In his book On Liberty , John Stuart Mill writes: "All that makes existence valuable to anyone depends on the enforcement of restraints upon the action s of other people. Some rules of conduct, therefore, must be imposed - by law in the first place, and by opinion on many things which are not fit subjects for the operation of law." Albeit freedom of speech and expression is fundamental, it cannot be unfettered. There is a general consensus that some limits must be placed on what can be said because unlimited speech can cause immense harm and offence. The right to freedom of speech and expression must be balanced with other societal interests. "We need to decide how much value we place on speech in relatio n to other important ideals such as priva cy, security , democratic equality and the prevention of harm. Speech is a part of a package deal of social goods and there is nothing inherent to speech which may suggest that it must always win out in competition with other values." 17. Notwithstanding the fact that the human rights instruments give high place to the right to free speech, they do allow some restrictions on it. Article 19 of the ICCPR says: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally , in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals. 18. In the United States the freedom of speech is protected by the First and the Fourteenth Amendments to the U.S. Constitution but the courts have consistently held that it is not absolute at all times and under all circumstances. In Chaplinsky v . New Hampshire, (1942) 315 US 568 , the Supreme Court held: "Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words - those which by their very utterance inflict injury or tend to incite an immed iate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality ." 19. Further reference may be made to Brown v. Entertainment Merchants Association, (2011) 131 S.Ct. 2729 , in which Scalia J . observed: "From 1791 to the present ... the First Amendment has permitted restriction upon the content of speech in a few limited areas and has never included a freedom to disregard these traditional limitations. [US v. Stevens (2010)6 7 8
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559 US 460]. These limited areas such as obscenity , Ruth v. US, (1957) 354 US 476, incitement, Brandenburg v. Ohio, (1969) 395 US 444, and fighting words, Chaplinsky v. New Hampshire, (1942) 315 US 568, represent well- defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem." 20. In England, there has been no equivalent of the First and the Fourteenth Amendments to the U.S. Constitution. However , it is sometimes suggested that the common law did recognize freedom of speech and the Bill of Rights of 1689 established it as a "constitutional right" in the Parliament when the parliamentary privilege was accorded. Now, as a result of the Human Rights Act, 1998, freedom of expression guaranteed by Article 10 of the ECHR is protected by law in the United Kingdom. In R v. Shayler , [2002] UKHL 11, Lord Bingham stated that although common law recognized this right for some time, it is now "underpinned by statute". 21. Article 10(1) of the ECHR provides that everyone has the right to freedom of expression but Article 10(2) subjects it to "such formalities, conditions , restrictions or penalties as are prescribed by law and are necessary in a democratic society" on the ground that the exercise of this freedom carries with it duties and responsibilities. Those restrictions may be "in the interest of national security , territorial integrity or public safety , for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority or impartiality of the judiciary ." While interpreting Article 10 of the ECHR the British Parliament' s Joint Committee on Human Rights has inter alia formulated the following principles for its application to the U.K. "Everyone has the right to free speech within the law. Unless it is unlawful, speech should usually be allowed. Free speech within the law should mean just that. This can include the right to say things which, though lawful, others may find disturbing or upsetting. "The right extends further than just the right to make speeches. It extends to all forms of expression. Together , freedom of expression and freedom of association cover the right to form societies with lawful aims, even where those aims are not shared with the majority , and the right to peaceful protest. "Free speech is not an absolute right: it is right that there are limitations to ensure that it is not exercised in a way which causes harm to others. We note the law prohibits speech which, for example, incites murder , violence or terrorism; stirs up racial hatred, or hatred to other groups; causes fear of violence, alarm or distress, constitutes harassment or is defamatory or malicious. It does not prohibit speech which others may find upsetting or of fensive. "This right to free speech is a foundation for democracy ." 22. The people of Pakistan declared in the Preamble of the Constitution of 1973 (and Article 2A which makes the Objectives Resolution a part of the substantive provisions) that freedom of thought and expression shall be secured to all the citizens subject to law and public morality . This resolve is reflected in Article 19 of the Constitution which reads as follows: 19. Freedom of speech etc.- Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity , security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order , decency or morality , or in relation to contempt of court, [commission of] or incitement to an of fence. According to Justice Fazal Karim, "Article 19 guarantees not only freedom of speech but also of expression and " 'expression' seems to be wide enough to embrace 'expressive conduct'." 23. It is important to note that Article 19 expressly allows imposition of restrictions to protect certain interests, viz., the glory of Islam, the security of Pakistan, friendly relations with other countries, public order , decency , morality , and in relation to contempt of court, commission of or incitement to an offence. The Petitioners' first challenge to the constitutionality of section 20 of the PECA is that defamation is not among the above-mentioned interests and does not have even a proximate connection with any of them. They also point out that the original Article 19 (as it stood in the 1973 Constitution) included defamation in the list but the Constitution (Fourth Amendment) Act, 1975 (LXXI of 1975) omitted it. Commenting on this amendment Justice Fazal Karim writes that "the reasons for this significant omission are not known, but if one may venture to surmise, one reason could be the thinking that the right guaranteed by Article 19 is directed against the State and the wrong of defam ation is not a public but a private9 10 11
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wrong." This view must be supported because it is based on the principle that the fundamental rights essentially afford protection against contraventions by the State and its instrumentalities. In Ramesh Lawrence Maharaj v. The Attorney General of Trinidad and Tobago, (1978) 2 All ER 670, Lord Diplock said: "The chapter [conferring fundamental rights] is concerned with public law, not private law. One man' s freedom is another man' s restriction; and as regards infringement by one private individual of rights of another private individual ... the existing law of torts provided a suf ficient accommodation between their conflicting rights and freedoms ..." 24. The aforementioned amendment in Article 19 came up for consideration before this Court in Majid Nazami and another v. Sheikh Muhammad Rashid (PLD 1996 Lahore 410) in which the plaintif f, a prominent politician, instituted a suit for recovery of damages against the printers and publishers of dailies "The Nation" and "Nawa-i- Waqt" for publishing defamatory statements issued by one Naveed Malik. Sh. Ijaz Nisar , J. held that the amendment in Article 19 widened the scope of freedom of press but cautioned that it was not a licence to defame any one. He wrote: "The word 'defamation' appearing in Article 19 was substituted with the words 'commission of'. This alteration obviously had a significance. It seems that the provisions after the said change widened the scope of freedom of press so that it could serve its purpose without a Sword of Damocles permanently hanging on its head ... The omission of the word 'defamation' thus implied that the press had a qualified freedom to publish any material which came to its notice, though it may be considered by someone to be defamatory for him, particularly regarding public figure against whom people have right to know and form opinion about their conduct, present or past." The Hon'ble Supreme Court of Pakistan upheld this view in appeal in Sheikh Muhammad Rashid v. Majid Nizami (PLD 2002 SC 514 ) and ruled: "In the original Article [19 of the Constitution] the word 'defamation' was available which was substituted by the word 'commission of' vide section 4 of the Constitution (Fourth Amendment) Act, 1975 (LXXI of 1975). Although the scope of freedom of press has been enlarged after the omission of the word 'defamation' from Article 19 yet it does not licentiate the press to publish such material which may harm or cause damage to the reputation, honour and prestige of a person. The Article provides for the freedom of press subject to any reasonable restrictions which may be imposed by law in the public interest and glory of Islam, therefore, the press is not free to publish anything they desire. The press is bound to take full care and caution before publishing any material in press and to keep themselves within the bounds and ambit of the provisions of the Article." 25. It follows that the legislature is compe tent to make a law relating to defamation even under the amended Article 19. Justice Fazal Karim opines that such legislation may also be justified on the ground that defamation and libel may endanger public order and incite an offence - the interests expressly protected under Article 19. I respectfully agree with him and hold that the Parliament was competent to enact section 20 of the PECA. The question as to…
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