The Islamabad High Court on Monday declared a raid on media person Mohsin Jamil Baig's house a misuse of the authority to arrest and issued a show-cause notice to the Federal Investigation Agency's cyber crime wing director.
IHC Chief Justice Athar Minallah issued the orders, while conducting hearings of petitions submitted in the court by Baig's wife through a journalist defence committee to remove anti-terrorism charges against the media person. Another plea was also heard in the high court related to Section 21-D of Prevention of Electronic Crimes Act, 2016 in the first information report against Baig under which the agency conducted a raid on his home in Islamabad.
The court asked the FIA's cyber wing director Babar Bakht Qureshi to submit an affidavit in the court stating why the court proceedings would not be conducted against him for misusing the authority. The chief justice remarked that the court will release the investigation agency, if it satisfies the high court that no contempt of court has been done.
The high court also issued notice to Attorney General Khalid Javed Khan to appear before the court in the next hearing and defend Qureshi in the case. He also asked the AG to satisfy court to abolish Section 21-D of PECA.
The hearing till the extent of relevant section of PECA was adjourned till February 24, while the court disposed off the petition seeking the removal of terrorism charges against Baig and asked the complainant to contact the trial court concerned for the removal of the relevant sections from the first information report and present the arguments there.
At the onset of the hearing, Justice Minallah expressed ire over non-representation from the FIA and ordered the agency's cyber crime director to appear before the court.
In his remarks the chief justice noted the state must have a writ. The raid could be wrong but why the accused took law in his hands, he added.
A report related to torture on Baig in the police station was presented in the court by Attorney General Islamabad Niazullah Niazi.
According to the report, a record of Baig's arrest, his arrival in the police station and departure from there had been saved. A scuffle took place between the accused and two officials of the FIA at the media person's residence where the agency went to search his home on the complaint of a federal minister.
Baig resisted while the officials were taking him to the police station, read the report, adding another scuffle broke out when the officials arrived at the police station with the media person.
Advocate Sardar Latif Khosa, who is presenting Mohsin Baig in the IHC, told the court that four cases had been registered against the accused in Karachi, Lahore and Islamabad.
At this the AG Islamabad told the court that lawyer was given access to the police station.
Justice Minallah raised multiple questions at this point, inquiring if the complainant was in Islamabad then why a case had been registered against him in Lahore? Was the FIA working to save the reputation of public office holders? Which director of the agency did not believe on law and constitution?
He then remarked that this case was not related to a single person but the protection of rights of all citizens.
The hearing of case resumed after the FIA cyber crime wing director appeared before the court.
Justice Minallah told the agency's director that the court would take action against him as the court had told the FIA not to arrest any person in defamation cases and the investigation agency had also given SOPs in the court.
He then reminded Qureshi that his duty was to provide protection to citizens and not to protect reputation of an elite person, adding the court received complaints of misuse by the FIA's authority in all cases like this one. However, the court would not allow the agency to impact on basic rights of any citizen.
Justice Minallah asked Qureshi why the complainant filed the case in Lahore when the accused was in Islamabad? and added initially the investigation would be conducted under such cases.
He then went on asking about the initial inquiry and added that the incident happened in a talk show whether the accuse share the clip on social media?
On the inquiry of the chief justice, Qureshi told the court four participants were part of the panel and that the FIA had the law to initiate proceedings against a person.
Then at the orders of the court the FIA cyber wing's director read Mohsin Baig's words in the court which he had uttered in the talk show and then told the chief justice that a reference to Reham Khan's book was defamatory in it.
At this Justice Minallah expressed ire and remarked that the court had told the agency that cases related to defamation were included in the military law despite the undertaking being given in this court and the Supreme Court about the SOPs.
He remarked that the court would not allow the FIA to become a rogue agency as its objective was to serve people.
When asked about the place where the complaint was registered, the FIA told the court Federal MInisetr for Communication Murad Saeed registered a complaint in Lahore on February 15.
At this Justice Minallah asked multiple questions. Was the federal minister in Lahore on a visit? Did you issue any notice to Baig following the complaint?
The FIA cyber crime wing's director responded in negative about the notice issued to Baig prior to a raid on his home.
Justice Minallah expressed ire at this and said it was written in the FIA law that inquiry would be conducted first. The FIA did not initiate the inquiry whether the accused made the clip viral on social media because the complainant was the federal minister.
He added that the PECA section included in the FIR could not be applied if the talk show was aired on the television.
At this Qureshi told the court that the agency initiated the proceedings when the clip went viral on facebook, twitter and other social media platforms
The chief justice then inquired when the other three people in the show talked about the same stuff then why they were not arrested.
Qureshi, then, told the court that other participants of the show did not say the comments which Baig uttered.
When the CJ asked the FIA cyber crime director to read Baig's words and tell him which sentence was related to defamation, he said the reference of book was defamatory.
Justice Minallah then asked the director whether Baig mentioned the page number of the book, where the author wrote the name of the federal minister, in the programme. Qureshi said no.
At this the CJ said the court was issuing a show cause notice for contempt of court to him
The FIA director said, "we are also your children" and that the FIA officials were being tortured.
The CJ remarked "neither you are my kids nor I am your father".
When Justice Minallah inquired about the number of pending complaints in the FIA, Qureshi told that they were at least 14,000 across the country.
The chief justice asked had you arrested all the accused in the complaints registered in the FIA? and expressed ire over inclusion of Peca's Section 21 D in the FIR against Baig.
He also inquired whether the marshal law has imposed in the country?
When the issue of contents of Prime Minister Imran Khan's ex-wife Reham Khan's book was mentioned, additional attorney general said every one knew what was written in the book.
Justice Minallah remarked that the AAG would know it and asked what did everyone know about it?
He then said this was an intimidation that there was no freedom of expression despite continuous warning by the court to be careful in such cases. The court will not tolerate it.
The chief justice then noted if this was an ordinary complaint, even then no arrest could be made under the law. But which kind of message was being conveyed that this was a complaint by a public office holder and the arrest was being made, he added.
The court also raised concerns over the investigation agency's continuous misuse of authority in favour of public office holders.
In his remarks, he noted that cases related to defamation had been removed from military laws in African countries and added Pakistan stood at eighth number in the list of countries which were unsafe for journalists and this happened due to wrongful use of authority by the institutions.
He remarked do you want to bring back the society in stone age? The chief justice added this case was a classic example of misuse of the authority by the FIA.
Justice Minallah asked what is obscene in referring something in a book by someone? He then asked the additional attorney general was it the only page in the Reham Khan's book where complainant name was mentioned.
At this the AAG said he had not read the book.
The chief justice expressed ire at this and said the AAG was talking on the basis of assumptions and noted no one's reputation could be saved by wrongful use of authority. People's trust on public office holder was basically their reputation, he added.
He then noted that the court concerned would see the matter related to the accused which he had done during the raid and added the FIA had registered a case which portrayed the whole law to be null and void.
The FIA had left every other duty and tried to save respects of public office holders, the judge remarked.
At this Advocate Khosa said prime minister called a meeting over the complaint of a federal minister and quoted the advocate general saying that the government would bring a reference against the additional and session judge for declaring the raid on Baig's house illegal.
Justice Minallah remarked no one could intimidate any judge
Then, Advocate Khosa read an inquiry report conducted by Islamabad inspector general and magistrate which stated that Baig had few injuries.
It was written that no independent witness was present to prove torture on Baig, read the lawyer, adding how could I provide a witness to it.
Advocate Khosa told the court if the illegal raid was not conducted then no incident had been happened following the raid.
In his arguments, he asked the court, if people in plain clothes enter my home, then being a citizen will I have no right to defend myself? Justice Minallah remarked if someone comes at my home and introduces himself as an FIA official and asks me to go with them, then I will go with them.
An officer is responsible for all his actions and it was his duty not to listen to anyone, remarked the chief justice, adding the prime minister was not being briefed about the facts of the case.
Expressing ire, he noted the role, which was displayed by the FIA in this case, of any agency or state was not tolerable in a democratic country, adding criminal defamation was a private right and not a public one.
Advocate Khosa also told the court that no additional FIR was registered against Baig till the Islamabad's additional session judge declared the raid on the media person's home was illegal.
At this Justice Minallah remarked an FIR was registered in which some accusations were levelled against Baig.
Later, hearing of the case to the extent of Peca was adjourned till February 24.