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Petitioner: Usman Zulfiqar Khan VS Respondent: The State etc.
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Usman Zulfiqar Khan vs The State etc. Case No.: Writ Petition No. 19711/2022 Date of Judgment:2022-06-27 Reported As: 2022 LHC 6401 Result: Petition Accepted
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. "If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter." - George Washington Introduction The Petitioner alleges that on 20.11.2019 at 03:37 p.m. he purchased Ragu Sauce from the Superstore1 vide Receipt No. D30510281821. He took it home and his family used it. Subsequently, they discovered from its label that it was not Halal as pork was one of its active ingredients. According to the Petitioner, import and sale of non-Halal goods is strictly prohibited in Pakistan and he could not even imagine that the Superstore would openly sell such product. On 23.04.2020 he uploaded a video on the Facebook at URL https://www.facebook.com/usman.z.khan.3 about the said incident and accused the Superstore of being involved in illicit trade of pork products in the country. The Superstore (through Respondent No.2, its Public Relations Officer) lodged a complaint with the Federal Investigation Agency (the "FIA") under the Prevention of Electronic Crimes Act, 2016 ("PECA"), accusing the Petitioner of defamation. The FIA initiated an inquiry and on its conclusion registered FIR No.97/2020 dated 23.10.2020 at Police Station FIA Cyber Wing, CCRC, Lahore, for offences under sections 20 & 24 of PECA read with section 500 PPC. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks quashing of the said FIR. The submissions
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2. The counsel for the Petitioner, Mr. Adnan Tariq, Advocate, contends that FIR No.97/2020 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. On merits he contends that the Petitioner has not committed any defamation for which he may be prosecuted. He purchased Ragu sauce from the Superstore which contained pork that is forbidden in Islam. As a Muslim it was his duty to inform his countrymen to avoid it which he did through the impugned video. According to him, the said video contained a true statement of facts so none of the sections under which he has been charged are attracted. He adds that FIR No.97/2020 is mala fide. The Superstore has lodged it to intimidate and silence the Petitioner. 3. Mr. Nasar Ahmad, Additional Attorney General, submits that freedom of speech and expression is, subject to certain conditions, the fundamental right of every citizen under Article 19 of the Constitution. Citizen journalism is an emerging new form of journalism which is being increasingly recognized all over the world. Therefore, every citizen has a right to upload a video on the social media provided that it does not violate any law for the time being in force in the country. As regards the impugned video, he submits that there is nothing in the FIR which may suggest that the Petitioner did not purchase Ragu sauce from the Superstore and Receipt No. D30510281821 in his hand is fake. Even the Investigating Officer has not recorded any adverse finding against him in this regard. The learned Additional Attorney General has also conceded that section 155 Cr.P.C and the Investigation Rules have been violated. He concludes that it is not possible to defend the FIR. 4. The counsel for the Superstore/Respondent No.2, Mr. G.A. Khan Tariq, Advocate, contends that this constitutional petition is not maintainable because challan has been submitted before the competent Magistrate and the Petitioner has an alternative remedy under section 249-A Cr.P.C. He further contends that the Petitioner is a blackmailer. On 11.12.2019 he issued a legal notice to the Superstore demanding Rs.1,000,000/- as damages for the mental anguish caused to him and his family owing to the alleged incident and when that was refused he uploaded the impugned video on the Facebook. According to Mr. Khan, the Petitioner's plea of religious service is a farce. His real object is to take revenge from the Superstore because it rejected his claim. In the circumstances, he adds, he is liable to be prosecuted under sections 20 & 24 of PECA and section 500 PPC and no exception can be taken to FIR No.97/2020. As regards the violation of section 155 Cr.P.C. and the Investigation Rules, Mr. Khan submits that nothing turns on it because the Petitioner has not been prejudiced. Discussion 5. Respondent No.2 has also raised an objection relating to maintainability of this constitutional petition. In Shajar Islam v. Muhammad Siddique and others (PLD 2007 SC 45) and Government of Sindh (through the Secretary Education and Literacy Department) and others v. Nizakat Ali and others (2011 SCMR 592) the Hon'ble Supreme Court of Pakistan held that the question of jurisdiction has to be determined at the outset to the exclusion of all other issues. I proceed accordingly. Maintainability 6. 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 convicted 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.2 However, some authorities hold that the bar is not absolute. Every case has its own facts and the High Court can intervene in exceptional
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circumstances.3 The present case involves interpretation of Article 19 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. Besides, the Petitioner has challenged the very registration of FIR No.97/2020 and the jurisdiction of the FIA to investigate it, file report under section 173 Cr.P.C. and the competence of the Magistrate to take cognizance of the alleged offences. There is also the question as to whether there is abuse of the process of law against which the Petitioner is to be protected. Therefore, I hold that this petition is maintainable. The objection of the Superstore/Respondent No.2 is overruled. The right to freedom of speech and expression 7. 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.4 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.5 The freedom of speech is characterized as "the indispensable condition of nearly every other form of freedom"6 and is, therefore, regarded as a fundamental international human right.7 8. Justice Brandeis highlighted the importance of the freedom of speech in Whitney v. California, 274 U.S. 357 (1927). He wrote that freedom to think and speak are indispensable for discovery and spread of political truth and protection against arbitrariness. It is hazardous to discourage thought, hope and imagination because it begets repression which breeds hate that menaces stable government. He maintained that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. In R v. Secretary of State, ex.p. Simms, (1999) 3 All ER 400, 408, Lord Steyn said that the freedom of speech serves a number of objectives. He 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 of 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." 9. In Romesh Thappar v. The State of Madras, [1950] SCR 594, the Supreme Court of India stated that the freedom of speech is the bedrock of all democratic organizations. In Sakal Papers (P) Ltd., and others v. The Union of India, [1962] 3 SCR 842, it ruled that the freedom of speech and expression of opinion is of paramount importance under a democratic dispensation. In Bennett Coleman & Co. & others v. Union of India & others, [1973] 2 SCR 757, the Supreme Court said that the freedom of speech and of the press is the "Ark of the Covenant of Democracy" because public criticism is essential for the working of its institutions. In Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others (AIR 1986 SC 515) the Court held that the freedom of expression serves four broad social purposes: "(i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision making, and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change." In S. Khushboo v. Kanniammal and others [(2010) 5 SCC 600] the Indian Supreme Court underscored the need to tolerate unpopular views in the socio-cultural space and added that "free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a
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precondition for meaningful governance in the political sense, a culture of open dialogue must also be promoted when it comes to societal attitudes." In Messrs Leo Communication (Pvt.) Ltd. and others v. Federation of Pakistan and others (PLD 2017 Lahore 709) this Court held: "Freedom of speech (and expression) is the lifeblood of democracy. The nature and extent of this freedom and fundamental right determines the quality and maturity of democracy in a country." 10. Albeit the right to freedom of speech and expression is fundamental, there is a general consensus that it cannot be unfettered. Some limits must be placed on it because unlimited speech can cause immense harm. The said right must be balanced with other societal interests. Therefore, all international human rights instruments allow some restrictions on it and the courts in all jurisdictions have consistently held that it is not absolute at all times and under all circumstances. 11. The people of Pakistan declared in the Preamble of the Constitution of 1973 (and Article 2A which makes the Objectives Resolution a substantive part of the Constitution) 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]8 or incitement to an offence. 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'."9 12. It is important to note that Article 19 expressly allows imposition of reasonable 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 original Article 19 (as it stood in the 1973 Constitution) included defamation in the list of protected interests 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 defamation is not a public but a private wrong."10 He also posits that the legislature is competent to make a law relating to defamation even under the amended Article 19 because defamation and libel may endanger public order and incite an offence - the interests expressly protected thereunder.11 I may respectfully add that it is one of the fundamental canons of interpretation of Constitution that all its provisions should be harmoniously interpreted. The right to dignity is guaranteed by Article 14(1) of the Constitution and is inviolable. Reputation forms an important part of a person's dignity12 so he has the right to protect his reputation. Article 19 should be construed in a manner that balances the two competing rights. Article 19 cannot trump Article 14(1). 13. The aforementioned amendment in Article 19 came up for consideration before the Hon'ble Supreme Court in Sheikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief, The Nation and Nawa-e-Waqat, Lahore and another (PLD 2002 SC 514). It held that the said amendment enlarges the scope of freedom of press. However, it does not increase it to publish any material which may harm or damage the reputation, honour and prestige of any person. 14. Article 19 stipulates that even where the restrictions are imposed for the purposes specified therein, they should be "reasonable". Generally, this would mean restrictions that are in the public interest and not arbitrary. The following excerpt from the Indian Supreme Court's decision in S. Rangarajan etc. v. P. Jagjivan Ram [(1989) 2 SCC 574] is quite instructive:
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"Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a powder keg.' " In S. Khushboo v. Kanniammal and others [(2010 5 SCC 600] the Indian Supreme Court further said that the law should not be used in a manner that has chilling effect on the freedom of speech and expression. Freedom of press 15. "The press in its historic connotation comprehends every sort of publication which affords a vehicle for information and opinion."13 In today's world it means "news industry of the mass media that focus on delivering news to the general public through print media (newspapers, newsmagazines), broadcast news (radio and television) and the internet (online newspapers)."14 Press is important because it "provides the platform for a multiplicity of voices to be heard. At national, regional and local level, it is the public's watchdog, activist and guardian as well as educator, entertainer and contemporary chronicles."15 16. A free press is fundamental to a democratic society. In Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others (AIR 1986 SC 515) the Supreme Court of India observed: "The freedom of press ... is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported to have said: 'The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government' ... Even where there are no written constitutions, there are well established constitutional conventions or judicial pronouncements securing the said freedom for the people." In All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2012 SC 1) the Hon'ble Supreme Court of Pakistan approvingly quoted an Indian decision16 which held that freedom of press is the heart of social and political intercourse and has also assumed the role of public educator because it has made formal and non-formal education possible at a large scale. In Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692) the apex Court held that "the concept of freedom of media is based on the premise that the widest possible dissemination of information from diverse and antagonistic sources is sine qua non to the welfare of the people. Such freedom is the foundation of a free government of a free people." 17. Article 19 of our Constitution expressly guarantees freedom of press but it is subject to the same limitations as have been discussed above. A journalist is required to be as responsible as any other citizen claiming right under the said Article. In Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823) the apex Court ruled: "The freedom of press is only a specific instance of general right of freedom of speech; persons engaged in newspaper business, cannot claim any other or greater right than that possessed by the persons not in that business." The Supreme Court further said: "The freedom of press is not absolute, unlimited and unfettered. The protective cover of press freedom must not be thrown open for wrongdoings. The press is expected to recognize its duties and responsibilities towards the society and in discharging their functions/duties they should not compromise on public order, decency and morality: If they exceed the reasonable limit or limit of
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fair criticism they become liable to be prosecuted for contempt. An irresponsible conduct and, attitude on the part of an editor, reporter, columnist and publisher cannot be said to have been adopted in good faith." 18. However, in Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad, and 2 others (1993 SCMR 1533) the Hon'ble Supreme Court held that any measure which directly or indirectly puts restraints on a newspaper or increases the cost of production or curtails its circulation would be an infraction of that right. Citizen journalism 19. "The digitalization of the 21st Century", says Locksley, "has changed the mass media from a one- way, top-down phenomenon in terms of content production and distribution to a two-way, bottom-up and lateral content distribution and production with new devices."17 This digitalization has ushered in a new form of journalism called "citizen journalism". Nareshchandra Rai states that citizen journalism exhibits the characteristic of several different models of media practices so the academics and researchers have employed a range of terms to describe it. These inter alia include: alternative media, participatory journalism, underground press, user-generated content, open source journalism, networked journalism, community journalism and collaborative journalism.18 Citizen journalism is conducted by people who are not professional journalists but they disseminate information through blogs, forums and uploading photographs or videos to the internet. "The idea behind citizen journalism is that people without professional or formal training in journalism have an opportunity to use the tools of modern technology and the almost limitless reach of the Internet in order to create content that would otherwise not be revealed, as this kind of journalism goes far beyond the reach of professional journalism."19 It helps provide independent, wide-ranging and relevant information that is crucial to democratic societies.20 20. "Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living constitution in a democracy."21 The citizen journalists are entitled to the freedom of speech and expression under Article 19 of the Constitution as other mainstream media people. The State is obligated to create a conducive environment for them. However, it goes without saying that the citizen journalists are accountable for the information they disseminate. Defamation laws in Pakistan 21. In Pakistan, defamation is a tort as well as crime. Defamation Ordinance, 2002, provides for civil remedy against the delinquent while the Pakistan Penal Code 1898 ("PPC") and the PECA make provision for his criminal prosecution. A citizen journalist has no immunity if he defames another. For our present purpose PPC and PECA are relevant. 22. PPC is the general penal code for Pakistan. Section 499 thereof defines "defamation". It stipulates that whoever by written or spoken words or otherwise by signs or visible representations imputes anything to a person intending to harm, or knowing or having reason to believe that such imputation would harm, the reputation of that person is said to defame him. This section has four Explanations and 10 Exceptions. Section 500 PPC criminalizes defamation and provides that the offender shall be punished with imprisonment for a term which may extend to two years or with fine or with both. Enhanced punishment has been prescribed for the initiator of the imputation and he is liable to imprisonment of either description for a term which may extend to five years or with fine which shall not be less than Rs.100,000/- or with both. In contrast, section 20 of the PECA relates to offences against dignity of a natural person and defamation is one of the acts that it criminalizes. The offence under the said provision is punishable with imprisonment for a term which
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may extend to three years or with fine upto Rs.1,000,000/- or with both. It is pertinent to point out that injury to reputation is the basic ingredient of the offence. A thing may be immensely offensive and annoy or cause inconvenience to somebody without affecting his reputation. 23. The PECA is lex specialis which aims to check cybercrimes and provide a legal framework for their investigation, prosecution and trial and for international cooperation to that end. Sections 28 & 50 of the PECA define its relation with other laws. They read: 28. Pakistan Penal Code, 1860 (Act XLV of 1860) to apply.- The provisions of the Pakistan Penal Code, 1860 (Act XLV of 1860), to the extent not inconsistent with anything provided in this Act shall apply to the offences provided in this Act. 50. Relation of the Act with other laws.- (l) The provisions of this Act shall have effect not in derogation of the Pakistan Penal Code, 1860 (Act XLV of 1860) the Code of Criminal Procedure, 1898 (Act V of 1898), the Qanoon-e-Shahadat, 1984 (P.O. No. X of 1984), the Protection of Pakistan Act, 2014 (X of 2014) and the Investigation for Fair Trial Act, 2013 (I of 2013). (2) Subject to sub-section (l), the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law on the subject for the time being in force. 24. PECA does not override PPC. Section 28 thereof rather says that the provisions of the PPC shall apply to the offences provided in the PECA unless they are inconsistent with it. The language of…
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