Unless govt files complaint in court: Grave charges against Nawaz, 40 others, cannot be tried

ISLAMABAD: No court is allowed to try former Prime Minister Nawaz Sharif and more than 40 other senior leaders of the Pakistan Muslim League-Nawaz (PML-N) on a series of charges -- including criminal conspiracy, sedition, waging or attempting or abetting to wage war against Pakistan, condemnation of the creation of the State and advocacy of abolition of its sovereignty -- unless a complaint is filed with it by the federal or Punjab government.

Constitutional experts refer to Sections 196, 196-A and 196-B of the Criminal Procedure Code (CrPC) to back up this argument and cite a number of superior court judgments to the effect. They say the mere registration of a case under multiple provisions of the Pakistan Penal Code (PPC) will not be sufficient grounds for the trial of the accused.

The whole chapter (VI) of PPC covering sections 121-130 [except section 127 about receiving property taken by war or depredation] under which Nawaz Sharif and others face grave charges is excluded from the cognizance of any court in the absence of a complaint from the federal or concerned provincial government. “If the government decides to submit the requisite complaint in the relevant court for trial of the accused on the charges listed in the FIR, it will have to take the approval of the cabinet,” lawyer Omar Sajjad told The News.

Prominent advocate Kashif Malik quoted four judgments of the superior courts in which such proceedings were dismissed or the FIRs quashed. An Islamabad High Court (IHC) verdict authored by Justice Mohsin Akhtar Kayani laid the principles necessary for the cognizance of offences like sedition, criminal conspiracy and statement conducing public mischief. These included the following: a complaint must be initiated by the federal or provincial government and by an authorized person under the law after considering the relevant factors of the alleged incident with reasons; private persons cannot agitate the matter regarding a sedition charge, rather it should be initiated, inquired and investigated by the government or at least on its direction; criminal conspiracy can only be considered if the other principal offence comes on record on the basis of allegations referred in the complaint in each case; the offence must contain the promotion of a feeling of enmity, hatred or ill-will between different religious or racial or linguistic or regional groups or castes; words, deeds or writing could disturb the tranquillity of the State or subvert the government; incite the people to incursion and rebellion; and an authorized officer shall state reason before issuing any sanction in terms of Sections 196 and 196-A with a speaking order.

On July 14, 2016, Islamabad police had registered an FIR under PPC Sections 120-B/124-A/505(ii)/34 against Ali Raza and another person, who had displayed banners near Kashmir Chowk, Murree Road, with photographs of the then Chief of Army Staff General Raheel Sharif which stated: Education, Health, Peace; Move on Pakistan.

The judgment said although the letters of sanction of prosecution are available on record but the same have been issued in mechanical manner without any reason or logic and even the person authorized – the Chief Commissioner, Islamabad Capital Territory -- is not aware of the very concept of sanction. Hence the available letters do not fall under the valid sanction on behalf of the federal government to prosecute the petitioner. The ruling said that it can safely be concluded that no sanction was obtained for the offence and the FIR has also been registered without the approval of the competent authority as referred to in section 196-A. Moreover, no such authority or valid permission was available with the respondents at the time of registration of FIR. Lastly, the phrase does not fall under any type of sedition, incitement or conspiracy in any manner, although placing these banners/posters on a public thoroughfare without permission of e municipal corporation Islamabad is chargeable under local government laws in the federal capital.

The second judgment handed down by the Lahore High Court in 2010 related to politician Makhdoom Javed Hashmi. It held that Section 124-A was not only non-cognizable, there was no concept of registration of a case under it by police. Cognizance under Section 124-A could only be taken on a complaint instituted by the federal government, which was lacking in this case. The federal government had neither specifically examined the case nor taken a decision to file a complaint regarding the commission of the alleged offence. Despite all this, the police had taken cognizance of the offence, investigated the case and filed the challan against the accused in which, ultimately, he had been convicted and sentenced. The entire proceedings -- starting from the registration of the case, investigation, submission of challan in the court, proceedings before the court and culminating in the impugned conviction -- were not sustainable in the eyes of the law, the verdict said.

In the Salman Taseer versus special court judge case, the Supreme Court held in 1993 that cognizance under Section 124-A “could only be taken on a complaint instituted by the provincial government, but as it had specifically not examined the case or taken any decision to file the complaint regarding the occurrence in question, legally there was no complaint. By virtue of Article 138, 268(3) and (6) of the Constitution, unless the provincial assembly on the recommendation of the government had by law conferred functions on officers or authorities subordinate to it, Section 196 of the CrPC could not authorise it to empower any officer on its behalf to make a complaint, that even assuming that the Punjab Home Department's notification of March 18, 1989 was treated as having been validly issued, it could not be general in nature but had to be specific and therefore should be struck down and that since the police took cognizance of the case, investigated it and filed the challan before a sanction was received and conveyed to the court, these proceedings must be treated as void.”

In a 2001 judgment -- Tehmina Daultana and others versus The State –the court stated that “while coming to a conclusion as to whether the speeches are seditious or not, the intention of the speakers has to be inferred from reading them a whole and the true import of the words used has to be gathered from the context and the effect they are intended or likely to produce on the audience although the truthfulness or falsity of the allegations levelled by the speakers is not relevant and similarly whether the speeches excited disorder or not is also not relevant for determining the guilt of accused under Section 124-A.” It has also been held repeatedly by the superior courts that the Supreme Court has to consider such speeches in a fair, free and liberal spirit and not in a narrow-minded or sectarian way. Nor are we to pick out isolated words or sentences. Mere criticism of actions and policies of the government, even though harsh in nature, does not attract the definition of sedition.

Whether there was a refusal to recognize the government established by law or a call to rebel against such a government or to resort to unconstitutional methods by use of force so as to disturb public peace or to disrupt the maintenance of essential supplies, is yet to be determined through evidence by the trial court. The complainant has not levelled any such allegations against the petitioners in the FIR.