Imaan Mazari, husband jailed in PECA case

ISLAMABAD:

A trial court in Islamabad on Saturday handed down a combined 17-year prison sentence to rights activist and lawyer Imaan Mazari and her husband, advocate Hadi Ali Chattha, convicting them on multiple charges linked to controversial social media posts that the prosecution argued amounted to an anti-state narrative under cybercrime laws.

In a detailed 22-page judgment authored by District and Sessions Judge Islamabad Afzal Majoka, the court found both accused guilty under several provisions of the Prevention of Electronic Crimes Act (PECA) 2016, while also acquitting them of one charge related to hate speech.

The ruling followed a case instituted in August last year over posts and reposts on X, formerly Twitter, that were described by investigators as undermining state institutions and aligning with proscribed organisations.

In a 22-page judgment, District and Sessions Judge Islamabad Afzal Majoka held that the prosecution had successfully established its case against Imaan Zainab Mazari Hazir and Hadi Ali Chattha under the Prevention of Electronic Crimes Act (PECA), 2016.

The court convicted both accused under Section 9 of PECA and sentenced them to five years of rigorous imprisonment each, along with a fine of Rs5 million each. In the event of defaulting on payment of the fine, they would be required to undergo one year of simple imprisonment.

Both were also convicted under Section 10 of PECA and awarded ten years of rigorous imprisonment each, with a fine of Rs30 million each. Failure to pay the fine would result in an additional two years of simple imprisonment.

Separately, the court convicted them under Section 26-A of PECA and sentenced them to two years of rigorous imprisonment each, coupled with a fine of Rs1 million each. In default of payment, they would have to undergo six months of simple imprisonment.

The judgment noted that the convicts were already in custody in another case and were present before the court through a video link. The court directed that they be kept in jail to serve their sentences and extended to them the benefit of Section 382-B of the Criminal Procedure Code, which allows for the adjustment of time already spent in custody.

Warrants of commitment were ordered to be issued, and copies of the judgment were directed to be provided free of cost to both convicts through the superintendent of Central Jail, Rawalpindi.

However, the judge acquitted the couple of the offence under section 11 of PECA, observing that none of the prosecution witnesses had claimed that the accused used hate speech to advance inter-faith, sectarian or racial hatred.

The case was registered by the National Cyber Crime Investigation Agency (NCCIA), which alleged that Imaan Mazari had propagated a narrative aligned with hostile terrorist groups and proscribed organisations and individuals. It was also alleged that she portrayed the armed forces as being behind terrorism and enforced disappearances.

The judgment noted that a review of the tweets, retweets and posts showed that the accused had described Pakistan as a terrorist state, termed detentions under section 11-EEE of the Anti-Terrorism Act as illegal, praised proscribed organisations and individuals, and portrayed the judiciary as biased.

It observed that such narratives typically rely on emotive language, selective presentation of facts, historical grievances or ideological framing aimed at eroding public confidence in core state institutions, including the judiciary, armed forces, legislature and law-enforcement agencies.

"Ordinarily, this form of narrative employs emotive language, selective presentation of facts, historical grievances, or ideological framing with the object of eroding public confidence in core state institutions, including the judiciary, the armed forces, the legislature, and law-enforcement agencies. In certain instances, it may extend to the glorification of resistance, rebellion, or the denial of the state's lawful authority."

"In constitutional and national security jurisprudence, courts have consistently drawn a distinction between protected democratic dissent and an anti-state narrative by examining the intent, content, context, and foreseeable impact of the expression in question. Particular weight is accorded to whether such expression incites violence, promotes secession, encourages terrorism, or creates a real, proximate, and tangible threat to public order and national security," it noted.

The court acknowledged that robust criticism of the state and its functionaries is a vital element of a democratic society and is protected under freedom of expression. However, it drew a distinction between permissible dissent and what it described as an anti-state narrative, which it judicially defined as speech or conduct that goes beyond lawful criticism and enters the realm of subversion, destabilisation or incitement against the state.

In such situations, the judgment said, the imposition of reasonable restrictions under constitutional and statutory law is considered justified. The court concluded that the accused had crossed the permissible legal boundaries through their tweets, retweets and online posts, thereby committing offences under Sections 9, 10 and 26-A of the PECA.

The court further observed that both accused had expressed views in favour of Mahrang Baloch, described in the judgment as a proscribed individual. The defence had argued that merely expressing views about a proscribed individual did not constitute an offence under section 9 of PECA.

"This court is not agreed with arguments of learned defence counsel because the glorification has been defined in PECA, which includes any form of praise or celebration. In these circumstances, the prosecution has been able to prove its case against the accused persons under section 9 of PECA"

The order added that under section 10 of PECA, any person who commits or threatens to commit an offence under section 9 with the intent to advance the objectives of proscribed organisations or individuals is liable to punishment.

"Now it is to be seen as to whether the accused persons by their tweets, re-tweets and posts promoted the agenda of proscribed individuals or organisations."

The court observed that the accused had described Pakistan as a "terrorist state" in their tweets, a designation that, according to the order, is officially applied only to four countries: Cuba, the Democratic Republic of Korea, Iran and Syria.

It noted that both accused are advocates by profession and therefore fully aware that Pakistan does not fall within this category. Despite this, the order said, they deliberately referred to Pakistan as a terrorist state in their social media posts, an assertion the court linked to what it described as the agenda of banned outfits such as the Balochistan Liberation Army (BLA) and Tehreek-e-Taliban Pakistan (TTP).

The court also noted that during the evidence stage, the accused maintained that their actions were protected under Article 19 of the Constitution. While acknowledging that Article 19 guarantees freedom of speech, the court held that such freedom remains subject to reasonable restrictions under the law.

The judgment further observed that there is a general international consensus that the right of an accused to be present at trial is not absolute and may be subject to limited exceptions.

"There are two general scenarios where an accused will be absent from his trial: i) where the accused is removed from court for disrupting proceedings and the prosecution or court decide to continue in his absence; and ii) where the accused does not show up at trial (or ceases to attend midway through) and the prosecution or court decide to continue in his absence."

In the first scenario, the judgment noted, a disruptive accused may be removed for abusing the right to be present.

"In a case against the United Kingdom, the European Commission on Human Rights held that the right contained in Article 14(3)(d) ICCPR (to be present), probably does not include the right to filibuster ones' own trial."

"The second scenario arises where the accused does not appear at trial. In this case, a decision to continue in the absence will only be lawful if the prosecution can demonstrate that the accused waived his right to be present. The question of what constitutes a legitimate waiver and what evidence the State must produce to demonstrate that waiver is the subject of most of the jurisprudence surrounding in absentia proceedings," the ruling noted.

'Assault on justice'

Commenting on the verdict, former additional attorney general Tariq Mahmood Khokhar said that Imaan and Hadi were convicted and sentenced for "the peaceful advocacy of human rights".

"This verdict is an assault on justice and the rule of law. Lawful expression has been criminalised. Constitutional rights under Articles 19 and 10-A have been ignored. PECA has been weaponised against dissent."

He further said that the state of Pakistan had failed to fulfil its obligations under international law, arguing that it had acted in violation of Articles 14 and 19 of the International Covenant on Civil and Political Rights (ICCPR).

According to Khokhar, United Nations principles on the role of lawyers and international jurisprudence protecting dissent were disregarded.

Calling it a new low for the judiciary, Khokhar said the country was witnessing "a transition from dark hour to a pitched black era".

He also maintained that independent observers, both within the country and abroad, viewed the "trial and judgment" as predetermined, prejudged and outsourced.