FIA gets harsh dressing down in IHC

ISLAMABAD:

The Islamabad High Court (IHC) grilled Federal Investigation Agency (FIA) on Monday over exceeding authority during the raid on the residence of media personality Mohsin Baig, and warned that the court would not allow the FIA to become a rogue agency.

The court said that defamation was a private right and not a public right. It issued show-cause notice to the director of the FIA’s Cyber Crime Wing, with direction to file affidavit why action should not be taken against him over abuse of authority.

IHC Chief Justice Athar Minallah also issued notice to the attorney general for Pakistan (AGP) and directed him to defend the FIA director. He also directed the AGP to satisfy the court as to why the Section 21(d) of the Prevention of Electronic Crimes Act (PECA) should not be annulled.

The court directed the inspector general of police, Islamabad, to investigate the case registered under the Anti-Terrorism Act in accordance with the law, and disposed of a petition filed by Baig's wife through the Journalist Defence Committee.

Baig was arrested following a raid at his residence by the FIA Cyber Crime Wing last week. Baig along with his sons and employees, resisted the arrest during which two officers were taken hostage and one was injured after being hit with pistol butt as the FIA team came under fire.

The FIA said that the Cyber Crime Wing, Lahore, had filed a case against Baig at the request of Federal Minister Murad Saeed and raided his house in Islamabad after obtaining warrant from a court. The Margalla police station arrested Baig and booked him in a separate anti-terrorism case.

The arrest came days after a private TV channel programme in which Baig was the participant of a panel. In the programme, the panel had made unethical and disparaging remarks against the minister. The programme received heavy criticism from the government quarters.

During Monday’s hearing, Chief Justice Minallah expressed concerns that the FIA was constantly exceeding its authority in favour of public office-holders. He emphasised that such a role of any agency or the state could not be tolerated in a democratic country.

The chief justice remarked that defamation was a private right, and not the public right, adding that even if it was a general complaint, still no arrest would be required. He further remarked that FIA’s job was to serve the people, adding the court would not let FIA become a “rogue agency”.

The chief justice pointed out that Pakistan was the eighth most insecure country for journalists, and remarked that this was because of the misuse of power. He then addressed the FIA director, saying: “Do you want to take this society to the stone age?”

He asked the FIA official that the complaint was lodged in Lahore by a federal minister, so had the minister visited the city. He further asked the official whether the agency had issued any notice after receiving the complaint.

About the raid at Baig’s residence, the chief justice asked whether the raid was carried out without inquiry because the complaint was from the federal minister. He also asked the official when the talk show was aired on television then the PECA clause would not apply.

The FIA official replied that the law was passed by parliament. He also informed the court that he acted on the complaint, when the talk show content went viral on social media platforms. On that the chief justice asked did the FIA make any inquiry whether the accused made the clip [of the talk show] go viral.

The chief justice enquired as to how many people were in that programme, and added that if everyone in the programme said the same thing, why the other participants were not arrested. The FIA director read out Baig's insulting sentence in the programme, saying that it was a reference from a book.

Present in the court, the additional attorney general said that he had not read the book but added that “everyone knows what is written” in it. The chief justice told the additional attorney general that then he was talking on the basis of assumption.

The chief justice said no-one could protect its credibility by abusing authority. He added that People's trust in public office holders was their real credibility. He said that this court would not allow any abuse of power, saying it was a threat to freedom of expression and the court would not tolerate it.

The FIA director told the court that an FIA official was beaten during the raid. The chief justice remarked that what the accused did during the raid was a separate matter, which would be looked into by the competent court.

Lawyer for the petitioners Latif Khosa said that the advocate general of Islamabad had said that he was bringing references against the judge, who had declared the arrest as unlawful. The chief justice said that no judge could be intimidated.

Written order

In a written order later, the chief justice said that the FIA director, Babur Bakht Qureshi, was asked to justify registration of the first information report (FIR) against Baig and the hasty raid conducted at the residence of the petitioners. However, the director was not able to satisfy the court.

The order expressed alarm at the inclusion of the Section 21(d) of PECA in the FIR. “The Complainant is not an ordinary citizen but an elected public office holder and a plain reading of the FIR shows that he had not complained of any act constituting the offence under section 21(d) of the Act of 2016.

“The registration of the criminal case and the action regarding attempted arrest of Mohsin Jamil Baig was in obvious violation of the SOPs [standard operating procedures] submitted by FIA before this Court and the august Supreme Court,” the order said.

“It is noted that abuse of powers vested in the FIA under the Act of 2016 has been rampant, widespread and remains unabated despite repeated observations and directions by the Court in several pending matters,” the chief justice said in the order.

“The abuse is so persistent and grave that its effect regarding fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 …, particularly Articles 19 and 19A are likely to be profound,” he added.

“It is ironic that beneficiaries of such pervasive abuse are public office holders and powerful entities …,” he further said. “It has been consistently observed and emphasized by the Court that criminalizing defamation has profound consequences for democratic values and free speech,” he further said.

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“Many States across the globe have decriminalized defamation because of its chilling effect on free speech and democratic accountability,” the chief justice said, adding: “The consistent abuse of the Act of 2016 by the FIA has raised questions of paramount public importance,” he added.

“The threat of arrest can effectively discourage exposing wrongdoings and corruption of public office holders and public bodies… Criminalization of defamation and its abuse, prima facie, appears to be in violation of the Constitution and the fundamental rights guaranteed thereunder.”

According to the written order, the FIA was directed to explain why proceedings may not be initiated against him [the director] or other officials for violating the SOPs, while the IGP was directed to ensure that investigation in case of FIR No.87/2022, dated 16-02-2022, was conducted fairly.

Inquiry report

An inquiry report from the IG Islamabad stated that the FIA officers came to Margalla police station on February 16 at 9.30 am and Wasim Sikandar of the FIA informed the police about the raid at Baig's house. At 10:30 am, the suspects reportedly attacked the raiding team.

When the police reached the spot, they saw Baig along with his son attacking the FIA personnel, report said that the police brought FIA personnel and the accused to the police station. There was a scuffle at the police station on which Baig was sent to the lockup.

The report said that the allegations of not giving access to Baig's lawyer were baseless. It added that how could the FIA personnel in official vehicles be considered robbers. The report insisted that Baig and his employees knew very well that the FIA officials coming.

The report further said that Baig could not answer as to why he did not call the police on 15, when he suspected robbery. Furthermore, the report added that there was no evidence of forced entry into Baig's house.