MEERA SHAFI vs FEDERATION OF PAKISTAN art — 2022 PLD 773 LAHORE-HIGH-COURT-LAHORE

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MEERA SHAFI VS FEDERATION OF PAKISTAN art. 199---Constitutional jurisdiction---Judicial review---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. Ss. 155 & 537---Prevention of Electronic Crimes Investigation Rules, 2018, R. 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Petitioners claimed that R. 7(5) of the Prevention of Electronic Crimes Investigation Rules, 2018, has not been followed---Validity---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 or the officers of investigating authority were dishonest or had malice against them---Any irregularity or defect in investigation stands cured under S. 537, Cr.P.C. art. 199---Criminal Procedure Code (V of 1898), S. 561-a---Constitutional jurisdiction---Civil and criminal litigation proceeding simultaneously---Scope---High Court has jurisdiction under art. 199 of the Constitution and S. 561-a, Cr.P.C. to stay criminal proceedings to meet the ends of justice where civil litigation is pending. art. 4---Right of individuals to be dealt in accordance with law---Scope---article 4 of the Constitution ordains that it is the inalienable right of every citizen, 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. Civil and criminal litigation proceeding simultaneously---Scope---Object of civil proceedings is to enforce civil rights of the people while the purpose of criminal proceedings is to punish the offender for committing an offence. art. 199---Criminal Procedure Code (V of 1898), S. 249-a---Constitutional jurisdiction---Power of Magistrate to acquit accused at any stage---Quashing of FIR---Vires of statute, challenge to---Maintainability---Scope---Where the accused persons while seeking quashing of FIR had assailed the vires of a statutory provision and had raised other questions involving interpretation of the Constitution and statutory law, High Court observed that such questions could not be decided by the Magistrate and that too in an order on the application under S. 249-a, Cr.P.C.---Constitutional petition was held to be competent and was disposed of accordingly. S. 20---Offence against dignity of a natural person---Defamation---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 sanctions attacks on the dignity of a natural person---Defamation is one of the things that violates it. art. 14---Prevention of Electronic Crimes act (XL of 2016), S. 20---Inviolability of dignity of man---Offences against dignity of a natural person---Scope---Section 20 of the Prevention of Electronic Crimes act, 2016, is not unconstitutional---act is rather in conformity with art. 14 of the Constitution and promotes the right to dignity enshrined therein. Part II, Chap. 1 [Arts. 8 to 28]---Fundamental rights---Interpretation of fundamental rights---Scope---Fundamental rights enumerated in a written constitution are not mutually exclusive---Provisions conferring those rights have to be harmoniously and purposively interpreted in order to give full measure of the freedoms to the people to which they are entitled. Words "by" and "under"---Scope---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---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. art. 199---Criminal Procedure Code (V of 1898), Ss. 561-a, 249-a & 265-K---Constitutional jurisdiction---Quashing of FIR---alternate remedy, availability of---Effect---Jurisdiction of the High Court under art. 199 of the Constitution is extraordinary and should be invoked only when there is no adequate and efficacious alternative remedy---Generally speaking, S. 249-a, Cr.P.C. and S. 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---High Court would not interfere in the normal course of the trial and quash the criminal proceedings while exercising powers under art. 199 of the Constitution or S. 561-a, Cr.P.C.---argument that some authorities hold that the bar is not absolute---Held, every case has its own facts and in exceptional circumstances the High Court can intervene. art. 19---Freedom of speech---Freedom of expression---Restrictions---Reasonableness of restrictions---Defamation---Qualified privilege. Ss. 155 & 154---Prevention of Electronic Crimes Investigation Rules, 2018, Rr. 6 & 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Rule 6(3) of Prevention of Electronic Crimes Investigation Rules, 2018, (PECIR) stipulates that a complainant may file his complaint in-person, via e-mail, fax, telephone or other available digital means to a Cybercrime Reporting Centre---Rule 7 retains the distinction between cognizable and non-cognizable offences---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 complaint received under R. 6(3) and nominate an investigation officer while R. 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, R. 7(5) ordains that non-cognizable offences are to be dealt with according to S. 155, Cr.P.C. and permission of the competent court is necessary for their investigation---Tension between different provisions of R. 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---First Information Report 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 R. 7(4) but in the case involving non-cognizable offence the Circle in-charge should seek permission of the competent court for investigation. Ss. 155 & 190---Information in cognizable cases---Cognizance of offences by the Magistrate---Scope---Police officers are not competent to investigate an offence which is non-cognizable and require 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 competent to try it in terms of S. 190(1)(a) & (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---No blanket exits for the acts committed dishonestly or malafidely by police officers who inherently are otherwise not empowered to submit reports for trial in non-cognizable offences and courts should not normally encourage the acts of police agencies without proper scrutiny---If a court otherwise competent in appropriate case 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. art. 25---Equality of citizens---Scope---article 25 recognizes that all citizens are equal before law and have a fundamental right to equal protection of law. Ss. 154, 156 & 157---Information in cognizable cases---Investigation into cognizable cases---Procedure where cognizable offence suspected---Scope---Receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation---Criminal prosecutions are undertaken as a result of information received and recorded but there is 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 matters 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 S. 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---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. Ss. 20, 28 & 50---Penal Code (XLV of 1860), Ss. 499 & 500---Constitution of Pakistan, Art. 25---Offences against dignity of a natural person---Defamation---Relation of Prevention of Electronic Crimes Act (XL of 2016) with other laws---Scope---Petitioners' claim was that S. 20 of PECA was discriminatory vis-a-vis Ss. 499 & 500 of P.P.C., so it is liable to be struck down---Validity---Pakistan Penal Code is the general Penal Code for Pakistan---Section 499, P.P.C. defines "defamation"---Section 500, P.P.C. criminalizes defamation---In contrast, S. 20 of PECA relates to offences against dignity of a natural person and defamation is one of the acts that it criminalizes---Prevention of Electronic Crimes Act 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---Prevention of Electronic Crimes Act does not override P.P.C.---Section 28 of PECA rather says that the provisions of the P.P.C. shall apply to the offences provided in the PECA unless they are inconsistent with it---Language of S. 28 is perspicuous but S. 50 presents some difficulty because of the expression "not in derogation of"---Prevention of Electronic Crimes Act has to be read in tandem with the laws mentioned in S. 50(1) thereof---Sections 499 & 500, P.P.C. apply to ordinary situations while S. 20 of the PECA is invoked where defamation is committed in the cyberspace through the computers---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 S.20 of the PECA and Ss. 499 & 500, P.P.C., do not overlap but stand the test of reasonable classification envisaged by Art. 25 of the Constitution. S. 20---Penal Code (XLV of 1860), S. 499---Offences against dignity of a natural person---Defamation---Scope---Explanations and the exceptions set out in S. 499, P.P.C. would be read into S. 20 of the PECA by virtue of Ss. 28 & 50 of PECA. S. 154---Information in cognizable cases---Scope---Registration of FIR is not a condition precedent for commencement of investigation. Civil and criminal litigation proceeding simultaneously---Scope---Decision to stay criminal proceedings is purely a matter of discretion---However, the guiding principle is whether the accused is likely to be prejudiced if the proceedings continued---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 grave injustice if there is a conflict of decisions, criminal proceedings must be held in abeyance. art. 199---Constitutional jurisdiction---Vires of statute, challenge to---Principles to be applied by court while examining the statute stated. "Derogation"---Meaning. art. 14---Inviolability of dignity of man---Right to reputation explained. art.199---Constitutional jurisdiction---Factual controversy---Scope---Question as to whether a particular act is mala fide requires factual inquiry which cannot be undertaken by the High Court in constitutional jurisdiction. Civil and criminal litigation proceeding simultaneously---Scope---No universal principle exists to the effect 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. art. 19---Prevention of Electronic Crimes act (XL of 2016), S. 20---Freedom of speech---Offences against dignity of a natural person---Scope---Petitioners attacked the constitutionality of S. 20 of Prevention of Electronic Crimes act, 2016, (PECa) on the ground that defamation is not among the restrictions imposed by the legislature in art. 19 of the Constitution and does not have even a proximate connection with any of them---Petitioner also pointed out that the original art. 19 (as it stood in the 1973 Constitution) included defamation in the list but it was omitted later on---Validity---Fundamental rights essentially afford protection against contraventions by the State and its instrumentalities---Wrong of defamation is not a public but a private wrong---Legislature is competent to make a law relating to defamation even under the amended art. 19---Section 20 of Prevention of Electronic Crimes act, 2016, may also be justified on the ground that defamation and libel may endanger public order and incite an offence-the interests expressly protected under art. 19 of the Constitution---Parliament was competent to enact S. 20 of Prevention of Electronic Crimes act, 2016. Phrase "and not in derogation of"---Meaning---"And not in derogation of" means the same thing as "in addition to". Ipse dixit of police--- Scope--- 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. S. 20---Offence against dignity of a natural person---Use of offensive and derisive language---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 shows that it encompasses a wide range of objectionable/offensive acts and "harm to reputation" or to put it in another way, defamation - is only one of them---Petitioners' contention that it stifles free speech is misconceived---Nobody can be given a license to defame another or do anything that may impinge on his dignity---Phraseology of S. 20 is broad enough to cover not only defamation but also the use of offensive and derisive language.

MEERA SHAFI vs FEDERATION OF PAKISTAN art — 2022 PLD 773 LAHORE-HIGH-COURT-LAHORE

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