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.
However, some authorities hold that the bar is not absolute. Every case has its own facts and the High Court can intervene in exceptional circumstances. 3The 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.
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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. The freedom of speech is characterized as “the indispensable condition of nearly every other form of freedom” 6and is, therefore, regarded as a fundamental international human right.
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.” 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. 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 dignity 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).
Freedom of press.
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“The press in its historic connotation comprehends every sort of publication which affords a vehicle for information and opinion.” 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).” 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.”
Citizen journalism .
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“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.” 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, usergenerated content, open source journalism, networked journalism, community journalism and collaborative journalism. 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.” It helps provide independent, wide-ranging and relevant information that is crucial to democratic societies. “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.”
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.
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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.
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 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.
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.
The professional journalists are trained to be fair, accurate and balanced in whatever they publish and have a code of ethics which they are to follow. On the other hand, “user-generated content is inherently biased so the notion of objectivity is far-fetched.” However, both the mainstream and the citizen journalists are required to abide by law and be watchful of the limits within which the right to freedom of speech and expression is to be exercised. The law of defamation applies to both the classes. No one can be permitted to lower another person in the esteem of his peers or to expose him to hatred, ridicule or contempt.
Writ Petition No. 19711/2022
Usman Zulfiqar Khan Vs. The State etc.
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