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 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 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 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 8 559 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 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 whether it imposes unreasonable restriction on the freedom of speech and expression requires closer examination.
26. There is no straitjacket formula to determine reasonableness of restrictions. In Chintaman Rao v. State of Madhiya Pradesh (AIR 1951 SC 118) the Indian Supreme Court held that the legislative view of what constitutes reasonable restriction is not conclusive and the superior courts have the final word. A restriction in order to be reasonable should neither be arbitrary nor beyond what is required in the public interest. The State of Madras v.
Y.G. Row (AIR 1952 SC 196) ruled that every statute impugned has to be examined independently . In Harkchand Ratanchand Bantia v. Union of India (AIR 1970 SC 1445) the Supreme Court laid down that reasonableness should be determined on the basis of the following criteria: "The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby , the disproportion of the imposition, the prevailing conditions at the time." And, in Shreya Singhal v. Union of India, [2015 (5) SCC 1], the Court held that "a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary ." In Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57) the Hon'ble Supreme Court of Pakistan ruled that there is no general standard to test the reasonableness of restrictions. "It will depend upon a variety of circumstances including the interest and urgency of the action12 13 14 proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power ." In Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692) the apex Court held that "it is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However , factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that 'reasonable' implies intelligent care and deliberation, that is, the choice of reason dictates. For any action to be qualifie d as reasonable, it must also be just, right and fair , and should neither be arbitrary nor fanciful or oppressive."
27. PECA aims to check cybercrimes in Pakistan and provides mechanism for their investigation, prosecution, trial and international cooperation and for matters ancillary thereto. Section 20 thereof criminalizes any act which offends dignity of a natural person. It reads as under:
20. Offences against dignity of a natural person.- (l) Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both: Provided that nothing under this sub-section shall apply to anything aired by a broadcast media or distribution service licensed under the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002).
(2) Any aggrieved person or his guardian, where such person is a minor , may apply to the Authority for removal, destruction of or blocking access to such information referred to in sub-section (l) and the Authority on receipt of such application, shall forthwith pass such orders as deemed reasonable in the circumstances including an order for removal, destruction, preventing transmission of or blocking access to such information and the Authority may also direct any of its licensees to secure such information including traf fic data.
28. The concept of human dignity envisages that human beings possess a special value that is intrinsic to their humanity owing to which they are worthy of respect whatever may be their race, colour , creed, gender or personal qualities or abilities. The right to reputation, the right to possession of a good name, is acknowledg ed as an inherent personal right of every person and considered an integral part of his dignity . In Marion v. Davis, 217 Ala. 16 (Ala. 1927), the Supreme Court of Alabama held: "The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society . A good reputation is an element of personal security , and is protected by the Constitution, equally with the right to the enjoyment of life, liberty and property ."
29. In Reynolds v . Times Newspapers Ltd., [2001] 2 AC 127 at 201 , Lord Nicholls said: "Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper , a reputation can be damaged forever , especially if there is no opportunity to vindicate one's reputation.
When this happens, society as well as the individual is the loser . For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely . In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others."
30. Defamation is an injury to a man' s reputation. The freedom of speech or expression does not authorize one person to lower another in the esteem of his peers or to expose him to hatred, ridicule or contempt. The wrong of defamation, which includes both libel and slander , protects reputation while the defences to that wrong, viz., truth and privilege, protect the freedom of speech. No one has a right to injure reputation of others with malafide15 16 17 18 intention. In Taseko Mines Limited v. Western Cana da Wilderness Committee, 2017 BCCA 431 (CanLII), the Court of Appeal for British Columbia held that in order to determine whether the words are defamatory they should be given their natural, normal, ordinary , plain, usual, fair and obvious meaning and be construed in the sense understood by an ordinary and reasonable person, i.e. someone who is not naturally inclined to attribute the best or worst meaning to them.
31. The law in the United States allows criticism of the public functionaries, and even the candidates for public offices and public figures unless there is actual malice - meaning that the defendant either knew that the statement was false or recklessly failed to determine whether it was true. It is justified on the ground that it is in the public interest that people should have proper information about the country and the holders of public offices. In New York Times Co. v. Sullivan, (1964) 376 US 254, the U.S. Supreme Court held that public officials could not recover damages for defamatory falsehoods pertaining to their official conduct unless they prove that the statements were "actually" malicious. Speaking for the majority , Brennan J. wrote: "[W]e consider this case against the background of a profound national commitmen t to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials ... [The Court has recognized] that erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive.' Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error ."
32. The House of Lords also acknowledges that it is in public interest to allow debate on the policies and acts of politicians but the person making the allegations must have a positive belief that they are true. In Horrocks v.
Lowe, (1974) 1 All ER 662, Lord Diplock explained that "indif ference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more." In Reynolds v. Times Newspapers Ltd., supra, the question arose as to whether the defence of "qualified privilege" should be extended to mass media with respect to publication of information, opinion and arguments concerning Government and political matters that affect the people of the U.K., regardless of the status and source of the material. The House ruled that "the established common law approach to misstatements of fact remains essentially sound. The common law should not develop 'political information' as a new 'subject-matter ' category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover , it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern.
The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today' s conditions, to the importance of freedom of expression by the media on all matters of public concern." This case established public interest defence in libel cases which came to be known as the Reynolds Defence . This ruling was affirmed in Jameel v. Wall Street Journal Europe, [2006] UKHL 44. The Defamation Act, 2013, has now created the statutory defence of "publication on a matter of public interest."
33. The law in India also permits bonafide and healthy criticism. In Dr. D.C. Saxena v. Hon'ble Chief Justice of India (AIR 1996 SC 2481) the Supreme Court held: "Critics are instruments of reforms but not those actuated by malice but those who are inspired by public weal. Bonafide criticism of any system or institution, including judiciary ,19 20 21 is aimed at inducing the administration of the system or institution to look inward and improve its public image ...
Healthy and constructive criticism are tools to augment its forensic tools for improving its functions ... Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preser ving democratic health of public institutions." The law in Pakistan has developed along the same lines.
34. Dignity of man is a cherished value under our Constitution and Article 14 thereof not only declares it as such but also enjoins that it is inviolable. In the light of the jurisprudence discussed above, it includes the right to reputation. Even otherwise, it is well settled that the fundamental rights enumerated in a written constitution are not mutually exclusive. The provisions conferring those rights have to be harmoniousl y and purposively interpreted in order to give full measure of the freedom s to the people to which they are entitled. In Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan (PLD 2015 SC 42) the august Supreme Court of Pakistan held: "Under the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, reputation of a person has received the highest protection in Article 4(2)(a). Further under Article 14 the dignity of man and, subject to law, the privacy of home, shall be inviolable right of each and every citizen. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, thus, not only is it the constit utional obligation of the State but all the citizens and persons living within the State of Pakistan to respect and show regard to dignity of every person and citizen of Pakistan otherwise if anyone commits an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law ."
35. A bare reading of section 20 of the PECA shows that it encompasses a wide range of objectionable/of fensive acts and "harm to reputation" - or to put it in another way, defamation - is only one of them. The Petitioners' contention that it stifles free speech is misconceived. As adumbrated, nobody can be given a licence to defame another or do anything that may impinge on his dignity . In my opinion, the phraseology of section 20 is broad enough to cover not only defamation but also the use of offensive and derisive language. It may very well admit application of the "fighting words doctr ine" articulated by the U.S. Supreme Court in Chaplinsky v. New Hampshire, (1942) 315 US 568. In that case, Walter Chaplinsky was distributing literature on a public sidewalk that supported his beliefs as a Jehovah' s Witness and attacked other religions. The town marshal gave him a warning and when he returned after sometime he shouted: "You are a God-damned racketeer" and "a damned Fascist".
Chaplinsky was charged and convicted under a New Hampshire law that forbids intentionally offensive speech directed against others in a public place. He appealed inter alia claiming that his conviction infringed upon his right to free speech. The Supreme Court upheld his conviction holding that certain "well-defined and narrowly limited categories of speech fall outside the bounds of constitutional protection. Thus, the lewd and obscene, the profane, the slanderous, and (in this case) insulting or 'fighting' words neither contributed to the expression of ideas nor possessed any 'social value' in the search for truth." (emphasis added)
36. Section 20 of the PECA sanctions attacks on the dignity of a natural person. Defamation is one of the things that violate it. In his treatise On Liberty John Stuart Mill formulated the Harm Principle which postulates that the State may interfere in the private life of individuals by way of sanction if harm is caused to others. In addition to what has been discussed above, the restrictions contemplated by section 20, ibid, are justified by the Harm Principle. Interestingly , Chapter XXI of the PPC criminalizes various acts constituting defamation and it has been there since the very inception. The Petitioners have not found any fault with it but argued against section 20 of the PECA.
37. In my opinion, section 20 of the PECA is not unconstitutional. It is rather in conformity with Article 14 of the Constitution and promotes the right to dignity enshrined therein.
Moot Point III
38. Article 4 of the Constitution ordains that it is the inalienable right of every citize n, wherever he may be, and of every other person for the time being in Pakistan, to enjoy the protection of law and to be treated in accordance with law. Article 25 recognizes that all citizens are equal before law and have a fundamental right to equal protection of law. The case of Waris Meah v. The State etc. [PLD 1957 SC (Pak) 157] laid down that if two statutes have the effect of constituting more than one authority to try an offence, each with a different power and procedure, without attempting or giving indication of any classification of the cases that may be tried by them, the legislation would be discriminatory and infringe the citizen' s aforementioned fundamental right. The Petitioners claim that this has happened in the criminal law relating to defamation as well. Section 20 of the PECA is discriminatory vis-a-vis sections 499 & 500 PPC so it is liable to be struck down.
39. The doctrine of judicial review postulates that the courts exercise judicial power of the State and are entitled to examine and decide: a) the constitutional validity of any law whether it is primary or subordinate legislation; and b) the constitutionality or lawfulness of a decision, action or inaction of a person or body exercising public functions.
40. The power to strike down a statute must be exercised with due care and caution. In Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739 ) the Hon'ble Supreme Court of Pakistan enumerated the followi ng principles that the courts are required to apply when an enactment is questioned:
(i) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;
(ii) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (iii)A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;
(iv) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;
(v) The Court will not decide a larger constitutional question than is necessary for the determination of the case;
(vi) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;
(vii) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;
(viii) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution;
(ix) Mala fides will not be attributed to the legislature.
41. PPC is the general penal code for Pakistan. Section 499 thereof defines "defamation". It enjoins 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 offende r should be punished with imprisonment for a term which may extend to two years or with fine or with both. However , 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.100,0 00/- 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. The offences under section 500 PPC as well as under section 20 of the PECA are non- cognizable, bailable and compoundable.
42. As noted earlier in this judgment, 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.22
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 20l3).
(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.
43. 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 section 28 is perspicuous but section 50 presents some difficulty because of the expression "not in derogation of". In fact, it generated a lot of debate during the hearing of this petition. The Oxford Advanced Learner 's Dictionary defines the word "derogation" to mean (i) an occasion when a rule or law is allowed to be ignored; (ii) words or actions which show that somebody or something is considered to have no worth. In State of Mysore v. P.K. Atre (AIR 1959 Kant 65) the Karnataka High Court judicially interp reted the phrase "and not in derogation of" and, relying on an English authority , held that it means the same thing as "in addition to".
44. In view of the above, the PECA has to be read in tandem with the laws mentioned in section 50(1) thereof. The learned Deputy Attorney General has rightly pointed out that sections 499 & 500 PPC apply to ordinary situations while section 20 of the PECA is invoked where defamation is committed in the cyberspace through the computers.
The cybercrimes are a category apart by their very nature as they may extend beyond the local and provincial boundaries and even national frontiers. They require special expertise for investigation which is generally not available with the local police. For all these reasons section 20 of the PECA and sections 499 & 500 PPC do not overlap. They stand the test of reasonable classification envisaged by Article 25 of the Constitution.
45. The Petitioners' contention that section 20 of the PECA is vague is also misconceived. So far as defamation is concerned, the Explanations and the Exceptions set out in section 499 PPC would be read into section 20 of the PECA by virtue of sections 28 and 50 of this Act.
46. In the result, I hold that section 20 of the PECA does not violate Articles 4 and 25 of the Constitution in any way .
Moot Point IV
47. Section 29(1) of the PECA stipulates that the Federal Government may establish or designate a law enforcement agency for investigation of the offences under the Act. Section 29(2) enjoins that "unless otherwise provided for under this Act, the investigation agency and the authorized officer shall in all matters follow the procedure laid down in the Code [of Criminal Procedure, 1898] to the extent that it is not inconsistent with the provisions of this Act."
48. Legislature often refers to possibilities provided "by" or "under" the governing law. When a statute provides something in its main text, it can be said to be something prescribed "by" the law. However , if secondary legislation envisaged by the parent law prescribes something (e.g. through statutory rules) it is "under" the parent enactment.
The use of the word "under" in a parent law clearly suggests that the legislature left it open for something to be provided either through an amendment in the main statute or the rules framed thereunder . This gains support from the Hon'ble Supreme Court' s holding in Commandant, Frontier Constabulary , KPK, Peshawar v. Gul Raqib Khan (2018 SCMR 903) that expression "by or under" in Article 240(a) of the Constitution authorized the terms and conditions of a civil servant to be provided by statute or statutory rules. The Federal Government has framed the Investigation Rules of 2018 in exercise of the powers conferred on it under section 51 of the PECA. These Rules are clearly statutory being "under" the PECA within the meaning of sectio n 29, supra , and would have effect accordingly .
49. Rule 3 designates the FIA as the investigation agency for the purposes of the PECA which functions through the Cyber Crimes Wing under the supervision of the Director General. The Circle In-charge, who is the overall in- charge of each Cybercrimes Reporting Centre of a Cybercrime Wing, acts as the authorized officer for the purpose of registration of complaints and their investigation. The argument is that the FIA cannot initiate inquiry/investigation unless FIR is registered, if the offence is cognizable, and without the permission of the competent court if it is non- cognizable.23
50. The Investigation Rules (2018) conta in elaborate provisions for registration of the cybercrimes complaints and their investigation. Rule 6(3) stipulates that a complainant may file his compl aint in-person, via e-mail, fax, telephone or other available digital means to a Cybercrime Reporting Centre. Rule 7 talks about its further handling and is reproduced below for ready reference:
7. Investigation and case procedure.- (1) The circle in-charge may allow regis tration of a case on a complaint and nominate an investigation of ficer.
(2) The investigation officer shall conduct the investigation on a clearly chalked out investigation work plan which shall be approved by the circle in-charge as specified in Schedule IV .
(3) The investigation officer shall submit an investigation report within sixty days from the date of registration of a case as specified in Schedule IV .
(4) In case a cognizable offence has been committed under the Act, the circle in-charge, after seeking legal opinion, shall order the registration of such case subject to the prior approval of Additional Director in the zone.
(5) In case of a non-cognizable offence under the Act, the circle in-charge shall seek permission of the competent Court for investigation under section 155 of the Code.
(6) Notwithstanding the requirement to file an interim challan, the Additional Director in a zone shall authorize the submission of final challan under section 173 of the Code.
51. Rule 7 retains the distinction between cognizable and non cognizable offences as we have in the Cr.P.C.
However , it is not happily worded and appears to be incoherent. Rule 7(1) lays down that the Circle In-charge may allow registration of a case on the compl aint received under Rule 6(3) and nominate an investigation officer while Rule 7(4) enjoins that if the offence alleged in the complaint is cognizable, the Circle In-charge shall order registration of case after seeking legal opinion and approval of the Additional Director in the zone. On the other hand, Rule 7(5) ordains that non-cogniza ble offences are to be dealt with according to section 155 Cr.P.C. and permission of the competent court is necessary for their investigation.
52. It is by now well settled that registration of FIR is not a condition precedent for commencement of investigation.
In Emperor v . Khawaja Nazir Ahmad (AIR 1945 PC 18) the Privy Council held: "But, in any case, the receipt and record ing of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matte rs alleged. Section 157 Cr.P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of the alleged criminal activity , to record the circumstances before there is time for them to be forgotten or embellished."
The above Privy Council case has, inter alia, been relied upon by in Ghulam Abbas v. The State (PLD 1968 Lahore 101); Faiz Muhammad v. The State (PLD 1979 Karachi 513); and Adamjee Insurance Company Ltd. v.
Assistant Director , Economic Enquiry W ing (1989 PCr .LJ 1921).## TE##
53. Cybercrimes constitute a special class and generally some preliminary inquiry is required to ascertain the nature of offence and determine whether sufficient incriminating evidence is availa ble to justify prosecution of the accused. It is for this reason that Rule 7(4) of the Investigation Rules talks of legal opinion and prior approval of the Additional Director . It needs to be appreciated that these cannot be rendered unless the authority has some material before it. Keeping this aspect in view and considering the principle expounded in Khawaja Nazir Ahmad' s case, supra , the tension between different provisions of Rule 7 can be resolved by holding that when a complaint is received at the Cybercrime Reporting Centre the Circle In-charge may allow it to be registered for further processing and nominate an officer therefor . FIR is to be lodged only if it is found that a cognizable offence has been committed under the PECA and that too after completing the requirements of Rule 7(4) but in the case involving non-cognizable offence the Circle In-charge should seek permission of the competent court for investigation. This interpretation is in consonance with Standing Order No. 05/2020 issued by the Director General, FIA, to regulate the Agency' s working. Every complaint is registered as an inquiry in the first instance and further steps are taken in the light of its result.
54. The offence under section 20 of the PECA is non cognizable and compoundable in terms of section 43 of the Act. Hence, in the present case the FIA should not have registered FIR No. C-72/2020. Instead, it should have made an entry in the relevant register that the offence was non-cognizable and then applied to the competent court for permission to investigate it. Incidentall y, the documents submitted by Responde nt No.5 with his para-wise reply to this constitutional petition show that on 8.8.2018 he lodged a complaint with the FIA against the user of Tweeter Account 'nehasaigal1' whereupon Enquir y No.1607/18 dated 4.11.2018 was registered. The Investigation Officer sought permission from the court to investigate it which was granted vide order dated 24.9.2020 (i.e. before the registration of the FIR). Under section 155(3) Cr.P.C. read with Rule 25.11(2) of the Police Rules, 1934, when the court allows investigation in a non-cogniza ble offence the police must investigate the case in the same manner as if the offence were cognizable except that they cannot make an arrest without a warrant. In the present case, after obtaining permission from the court as mentioned above, the Investigation Officer recorded statements of witnesses under section 161 Cr.P.C. and found that the Petitioners and their co-accused had committed an offence under section 20 of the PECA. Report under section 173 Cr.P.C. was submitted accordingly . The court has taken cognizance and the trial is in progress.
55. The Petitioners contend that Rule 7(5) of the Investigation Rules has not been followed while Respondent No.5 argues otherwise and both of them have produced case-law regarding the effect of its non-compliance. Even if it is assumed that the Petitioners' stance is correct, they cannot get any benefit because there is nothing on the record which may suggest that they have been prejudiced. There is also no evidence that the FIA authorities were dishonest or had malice against them. In the circumstances, any irregularity or defect in investigation stands cured under section 537 Cr.P.C. In Altaf Hussain v. Abdul Samad and 3 others (2000 SCMR 1945 ) the Hon'ble Supreme Court held: "A resume of the aforesaid facts and case-law leads to the conclusion that generally speaking police officers are not competent to investigate an offence which is non-cognizable and requires permission from a competent Magistrate before the commencement of investigation. However , if through bona fide error or misconception of facts and law a police officer has undertaken investigation of a crime in which he is not authorized to arrest an accused without a warrant from a Magistrate and a case is taken to a Court comp etent to try it in terms of section 190(1) (a) and (b), Cr.P.C. cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice."
The apex Court, however , added: "It may be fully understood that there is no blanket for the acts committed dishonestly or mala fide by police officers who inherently are otherwise not empow ered to submit reports for trial in non-cognizable offences and courts should not normally encourage the acts of police agencies without proper scrutiny . Yet in appropriate cases, if a court otherwise competent has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused. Indeed, on the one hand police officers are duty bound to ensure the rule of law whereas on the other hand courts can exercise jurisdiction only subject to law and the assumption of jurisdiction which otherwise is barred can hardly be justified on the plea of bona fide cognizance of a case or lack of prejudice to the accused."
Moot Point V
56. More often than not people in our country have recourse to the civil and criminal law contemporaneously to settle their disputes. Hence, there is always a question as to whether criminal and civil litigation can continue side by side. Starting from Muhammad Akbar v. The State and another (PLD 1968 SC 281) we have a number of cases in which the Hon'ble Supreme Court considered this issue. The following principles may be deduced from them:24 25
(i) The object of civil proceedings is to enforce civil rights of the people while the purpose of criminal proceedings is to punish the of fender for committing an of fence.
(ii) The High Court has jurisdiction under Article 199 of the Constitution and Section 561-A Cr.P.C. to stay criminal proceedings to meet the ends of justice where civil litigation is pending.
(iii) There is no universal principle that whenever the subject-matter of a civil suit and a criminal case is the same or similar the proceedings before the criminal court must necessarily be stayed.
(iv) The decision to stay the criminal proceedings is purely a matter of discretion. However , the guiding principle is whether the accused is likely to be prejud iced if the said proceedings continue. If his criminal liability is dependent on the result of civil litigation or is so intimately connected with it that there is a danger of grace injustice if there is a conflict of decisions, criminal proceedings must be held in abeyance.
57. Let's now examine the present case in the light of the above principles. The standard for appreciation of evidence for granting damages in civil litigation is altogether different from the one employed in criminal cases. In People of the State of California v. Orenthal James Simpson (O.J. Simpson) the accused was tried for the murders of his ex-wife Nichole Brown Simpson and her friend Ronald Goldman but was acquitted as the prosecution could not prove his guilt beyond shadow of doubt. Subsequently , the families of the deceased filed a suit for damages against him regarding the same murders. The Civil Jury found that he was liable and ordered him to pay damages to the tune of 33.5 million dollars. In the present case, if the Defamation Suit of Respondent No.5 is decreed against Petitioner No.1, it would not have bearing on the criminal trial and, vice versa , if the Defamation Suit is dismissed, the Petitioners would not be exonerated from the criminal charge. Hence, there is no probability of any prejudice being caused to the Petitioners or any of them.
58. The discussion does not end here. It is observed that Respondent No.5 has filed the Defamation Suit against Petitioner No.1 (Meera Shafi) only. No civil litigation is pending qua Petitioners No.2 to 6. More importantly , the Defamation Ordinance, 2002, itself allows criminal action. Section 1 1 thereof provides:
11. Ordinance not to prejudice action for criminal defamation.- Nothing in this Ordinance shall prejudice any action for criminal libel or slander under any law for time being in force.
59. It is pertinent to point out that at one stage Petitioner No.1 moved an application before the Additional District Judge for stay of proceedings in the Defamation Suit which was dismissed vide order dated 19.10.2020. Petitioner No.1 filed Civil Revision No.54217/2020 against that order before this Court which was dismissed in limine on 2.11.2020. She did not assail that order before the apex Court and it has attained finality .
Moot Point VI
60. Admittedly , during investigation FIA checked the Petitioners' social media accounts on Facebook and Twitter over the internet and also recorded statements of a number of people in terms of section 161 Cr.P.C. from both the sides. It has submitted report under section 173 Cr.P.C. after thorough investigation. Therefore, it cannot be said that their finding regarding guilt of the Petitioner is based on no evidence. It is trite that the opinion of the police is not binding on the court and it has to decide the case on the basis of evidence produced before it - evidence that is admissible and reliable. I would refrain from making any more comments at this stage as it may prejudice either party .
61. The Petitioners allege that FIR No. C-72/2020 is malafide as Respondent No.5 wants to pressurize the witnesses who are to testify for them in the Defamation Suit. The question as to whether a particular act is malafide requires factual inquiry which cannot be undertaken by this Court in constitutional jurisdiction. The Petitioners would, however , be at liberty to raise this issue before the trial court.
Disposition
62. This petition is dismissed with costs. Ghulam Muhammad v. Muzammal Khan and 3 others (PLD 1967 SC 317); Allied Bank of Pakistan Ltd. v.
Khalid Farooq (1991 SCMR 599); A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353); and Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276).26 1 Miraj Khan v. Gul Ahmed and 3 others (2000 SCMR 122); Mst. Parveen Akhtar v. Muhammad Yousaf Zahid and another (2002 PCr.LJ 1593); Mst. Shamim v. District Police Officer, District Khanewal and 2 others (2004 PCr.LJ 606); Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others (2012 PCr .LJ 638); and Mumtaz Hussain v . The State and 2 others ( PLD 2017 Lahore 889 ). Freedom of Speech, https://www .history .com/amp/topics/united-states-constitution/freedom-of-speech. Freedom of Speech: challenges and the role of public, private and civil society sectors in upholding rights (December , 2021). Available at: https://lordslibrary .parliament.uk/freedom-ofspeech-challenges-and-the- role-of- public-private-and-civil-society-sectors-in-upholding-rights/ Palko v . Connecticut, (1937) 302 US 319, 327. Cited in the Fourth Report of Session 2017-19 (Re: Freedom of Speech in Univers ities) of the British Parliament' s Joint Committee on Human Rights. van Mill, David, "Freedom of Speech", The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N.
Zaita (ed.), URL=https://plato.stanford.edu/archives/spr2021/entrties/freedomspeech/ In Gitlow v. New York (1925) the U.S. Supreme Court stated that the due process clause of the Fourteenth Amendment protected the First Amendment rights of freedom of speech from infringement by the state as well as the Federal Government. Fourth Report of Session 2017-19 (Re: Freedom of Speech in Universities). Substituted by the Constitution (Fourth Amendment) Act, 1975, section 4 for "defamation" (w.e.f. November 21, 1975). Fazal Karim, Judicial Review of Public Actions, Second Edition, V ol.2, p.1 188. ibid, p. 1237. His Lordship was nominated as the Referee Judge in terms of section 98 CPC as there was a difference of opinion between the learned Judges of the Division Bench who originally heard the appeal. Fazal Karim, Judicial Review of Public Actions , Second Edition, V ol. 2, p. 1238. This view was endorsed in Miss Benazir Bhutto v . Federation of Pakistan and another ( PLD 1988 SC 416 ). Human Dignity . Available at: https://cbhd.org/category/issues/human-dignity #:~:text=Human% 20dignity%20is%20the%20recognition, because%20they%20are%human% beings Ratanlal & Dhirajlal, The Law of T orts, 28th Edition, p. 269 Durga Das Basu, Commentary on the Constitution of India, 9th Edition, p. 3859. Ratanlal & Dhirajlal, The Law of Torts, 28th Edition, p. 269. Durga Das Basu, Commentary on the Constitution of India, 9th Edition, p. 3860. Lord Nicholls, speaking for the majority , gave the following non-exhaustive list of the criteria against which the defence of qualified privilege should be adjudged: i) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. ii) The nature of the information, and the extent to which the subject-matter is a matter of public concern. iii) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. iv) The steps taken to verify the information. v) The status of the information. The allegation may have already been the subject of an investigation which commands respect. vi) The urgency of the matter . News is often a perishable commodity . vii) Whether comment was sought from the plaintif f. He may have information others do not possess or have not disclosed. An approach to the plaintif f will not always be necessary . viii) Whether the article contained the gist of the plaintif f's side of the story . ix) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. x) The circumstances of the publication, including the timing.2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Fazal Karim, Judicial Review of Public Actions , Second Edition, V olume 2, pp.7-8. 8th Edition, p. 409. This opinion does not consider the vires of this Standing Order as this question was neither raised nor argued. Abdul Majid v. Nawab Din (1973 SCMR 373); Muhammad Tufail v. The State and another (1979 SCMR 437); Abdul Haleem v. The State and others (1982 SCMR 988); Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95); A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353); Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883 ); Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others (2000 SCMR 991); Maqbool Rehman v. The State and another (2002 SCMR 1076 ); M. Aslam Zaheer v. Ch. Shah Muhammad and another (2003 SCMR 1691 ); State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594); Sheraz Ahmad and others Fayyaz-ud-Din and others (2005 SCMR 1599 ); Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771); Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192); Seema Fareed and others v. The State and another (2008 SCMR 839); Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512); Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others (2009 SCMR 141); Zafar and others v. Umar Hayat and others (2010 SCMR 1816 ); Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others (2010 SCMR 1835 ); National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others (2011 SCMR 446); Sameen Jan (Naib Tehsildar and others v. The State and others (PLD 2011 SC 509); Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642); and Muhammad Aslam v.
The State and others ( 2017 SCMR 390 ). Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others (1979 SCMR 484); Umar Hayat Khan v. Inayatullah Butt and others (1994 SCMR 572); Mst. Kaniz Fatima through legal heirs v. Muhammad Salim (2001 SCMR 1493 ); Secretary to Government of the Punjab, Forest Department, Punjab, Lahore, through Division Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415); Wazir Ali Soomro v. Water and Power Development Authority and others (2005 SCMR 37); Col. Shah Sadiq v. Muhammad Ashiq and others ( 2006 SCMR 276 ).