Every citizen has a right of political and social justice, freedom of speech and thought. Print and electronic media are the means of receiving and providing such information to and from the people. Upon exercise of right of freedom of speech and expression, politically motivated FIRs are being registered for offences under sections 121-A, 124, 153-A, 505 of the PPC, without following the procedure, as provided in section 196 of the Cr.P.C., which is an illegality. The Government must tolerate the criticism of its political opponents being the chosen representatives of the people, instead of considering them as enemy of State.
The offences under sections 121-A, 124, 153-A, 505 of the PPC, mentioned in the FIR, relate to waging of war against Pakistan; assaulting President, Governor etc; promoting enmity between different groups; and abetting mutiny, etc. These offences are part of the offences of the PPC mentioned in section 196 of the Code.
The legislature was mindful of the heinousness, gravity, and sensitivity of the offences, therefore, the above mechanism has been provided. According to the said section, cognizance can only be taken by a Court upon a complaint made by the Federal Government, the Provincial Government concerned or some officer empowered in this behalf in respect of the offences mentioned therein. As per Articles 90 and 129 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), “Federal Government” consists of the Prime Minister and the Federal Ministers, whereas the “Provincial Government” consists of the Chief Minister and the Provincial Ministers, respectively. The principle of Delegatus Non-Potest Delegare is a Latin legal maxim that generally applied to the delegation of power or authority by one person or entity to another. According to this Maxim, if a person or entity to whom a power or authority is delegated, cannot himself further delegate that power or authority to someone else. However, such power can be delegated in circumstances where the law expressly permits to do so, or in the absence of a law, where the original delegation explicitly authorizes it. In such view of the matter, section 196 of the Code mandates that no person or authority other than the Federal Government or the Provincial Government or any officer empowered by the respective Governments in this behalf is competent to file a complaint in respect of the offences mentioned in section 196. Chapter XVI of the Code provides a forum and procedure for filing of a complaint and authorizes the Court to conduct a preliminary inquiry and, if need be, to investigate the matter in order to ascertain its veracity. If the Court finds that no case is to be made out from the material available on the record, it has to dismiss the complaint by exercising powers under section 203 of the Code. Where the Court is of the opinion that there are sufficient grounds to take cognizance of the matter upon the complaint, only then the judicial proceedings can be commenced by adopting a method as provided under Chapter XVII of the Code.
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 registration of 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, 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 Code.
It is a well settled principle of law that when a law stipulates that some thing 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 unauthorized persons from initiating judicial proceedings in respect of State prosecution regarding the stated offences. This is to ensure prevention of human rights violations and to ensure prevention of purposeless, malicious, and frivolous prosecutions. Thus, in order 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. Secondly, the complaint must contain the name of a person(s), against whom proceedings are required to be initiated and all the details in respect of the alleged offence(s). Moreover,after filing a complaint, if subsequently, it surfaces that some person(s) other than the one(s) named in the complaint is/are also connected in commission of the offences, the Federal Government, the Provincial Government or an officer empowered by either of the two Governments, as the case may be, may pass an order for filing of a supplementary complaint against them with all the stated details. In any case, before submitting a complaint, the authorities concerned must conduct a preliminary inquiry in order to avoid frivolous, malicious and purposeless prosecution. Similarly, the Magistrate upon receiving a complaint and before assumption of the jurisdiction, 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, charge can be framed. The Magistrate, if satisfied, that prima facie case against the nominated person is made out, he can then initiate judicial proceedings against the person nominated in the complaint. If he reaches a conclusion that the complaint or the supplementary complaint has been filed by an unauthorized person or that the same suffers from mandatory requirements of section 196 or he lacks jurisdiction, he should not issue process in a mechanical manner, rather, should refrain himself from initiating judicial proceedings. 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. 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.
Our Constitution is a sacred document and a social contract. The Constitution makers incorporated in it the principle of freedom, equality and justice.
The above portion of the preamble enshrines that the State shall exercise its powers and authority through the chosen representatives of the people, who represent them in parliament and the assemblies. Every citizen has a right of political and social justice, freedom of speech and thought, subject to a reasonable restriction imposed by law. In order to protect and promote such rights, the State must exercise its power and authority in accordance with the Constitution. Print and electronic media are the means of receiving and providing such information to and from the people. We have observed that upon exercise of such right, politically motivated FIRs are being registered for offences mentioned in section 196 of the Code, mostly 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. Such misuse of authority creates a sense of fear and insecurity in the society, which result into hatred against the State’s institutions. When citizens are put in fear, they cannot perform their functions freely, which amounts to preventing them from contributing towards the society in accordance with the Constitution, law and as per their conscience. 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. A democratic Government is considered to be by the people, of the people and for the people. 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 aga
inst its citizens.
Crl.P.225/2023
Ammad Yousaf v. The State through Advocate General, Islamabad and another
Mr. Justice Jamal Khan Mandokhail
14-09-2023
17-10-2023
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