Prosecuting citizens for ‘anti-state thoughts’ without substance undermines constitution: judge

A sessions court has acquitted four rights activists in a case pertaining to abetting mutiny.

Nasir Aziz, Mohammad Saeed Baloch, Abdul Wahab Baloch, and Ellahi Bux Bikak, along with over 200 unnamed persons, had been booked under sections 131 (abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty) and 153-A (promoting enmity between different groups, etc.) of the Pakistan Penal Code.

The case was lodged after they held a rally outside the Karachi Press Club to express solidarity with Baloch people who were protesting in Islamabad against missing persons’ cases last year in December.

Additional Sessions Judge (South) Ihsan Ali Malik observed that none of the prosecution witnesses had stated a single word that the accused had abetted mutiny or attempted to seduce a soldier, sailor or airman from his duty.

“There is nothing on record that the slogans were attributed to uniform persons of Army, Navy or Air Force. The only evidence against the accused is that there was video recording of the incident which was analyzed by the forensic laboratory, but quite surprisingly before sending it to the FSL Lahore it was not sealed,” he said, adding that it didn’t have any allegation of slogans against armed forces.

The judge noted that Section 153-A related to promoting enmity between different groups was part of the offences of PPC mentioned in Section 196 (prosecution for offences against the state). According to Section 196, no person or authority other than the federal government or the provincial government or any officer empowered by either of the two was empowered to file a complaint.

“The object and purpose of giving power only to the government concerned or an officer empowered in this behalf for filing a complaint is to prevent unauthorized persons from initiating judicial proceedings in respect of state prosecution regarding the state offences. This is to ensure prevention of human rights violations and to ensure prevention of purposeless, malicious and frivolous prosecutions,” the judge said.

He said that the authorities concerned must conduct a preliminary inquiry before filing such a complaint in order to avoid frivolous, malicious and purposeless prosecution, adding that similarly, the magistrate upon receiving a complaint must apply his mind and analyze evidence in order to determine the jurisdiction and to ascertain that on the basis of the available material, charge can be framed.

If he reaches the conclusion that the complaint or supplementary complaint had been filed by an unauthorized person or that suffers from lack of mandatory requirements of Section 196, he should refrain from initiating judicial proceedings.

In his detailed judgement, the judge wrote: “The exercise of inherent powers assigned to the courts to preserve and protect the rights of the citizens is a mandate of the Constitution, whereas non exercise of such powers is a violation of the Constitution and law, hence, is an

illegality.”

“The courts instead of becoming an apparatus for malicious and purposeless judicial prosecution by entertaining baseless and frivolous complaint must exercise their powers in accordance with law, without fear and favour.”

The judge said that it was hard to believe that political activists and human rights can indulge themselves in anti-state activities. “The act of indulging its citizens in malicious and frivolous prosecution by the government without any substance on the plea that thoughts are anti-state amounts to undermining the constitutional command and as such, depriving citizens from their fundamental rights of freedom of movement, assembly, speech, and right to information,” he observed.

“Such misuse of authority creates a sense of fear and insecurity in the society which result into hatred against the state’s institutions. When citizens are put in fear, they cannot perform their functions freely, which amounts to preventing them from contributing towards the society in accordance with the Constitution.”

The judge said that a democratic government must develop an atmosphere of tolerance to promote political and social justice to create a habit of listening to healthy criticism, which is the beauty of democracy, adding that it must accept the will of the people, instead of considering its critics and political opponents as enemy of the state to avert hatred and mistrust of citizens upon the institutions by refraining itself from misusing power and authority and to avoid malicious, baseless and frivolous prosecution against its citizens.