ISLAMABAD: The Islamabad High Court on Tuesday sought an explanation from a magistrate for invoking sedition charges against those who were taken into custody during a protest against the arrest of Pashtun Tahaffuz Movement chief Manzoor Pashteen.

IHC Chief Justice Athar Minallah resumed the hearing of bail petitions filed by 23 protesters who were arrested by the Islamabad police last month while registering their protest against the arrest of Pashteen.

On Feb 2, the court was told that Section 124-A (related to sedition) had been deleted, but Section 7 of the Anti-Terrorism Act (ATA), 1997 had been inserted in the First Information Report (FIR) against the protesters.

Additional District and Sessions Judge Mohammad Sohail, while dismissing the post-arrest bail of 23 political workers, had observed: “I have no hesitation to hold that it is a case in which Section 7 of the Anti-Terrorism Act (ATA) is attracted by all force hence, this court lacks jurisdiction to entertain and decide the bail applications.”

Court says officials exercised powers in arbitrary and reckless manner

The IHC chief justice, however, described these observations as exceeding the jurisdiction.

“It is noted that every detention amounts to a tort unless the officials directing the arrest can show to the satisfaction of the court that intrusion of the constitutionally guaranteed rights such as liberty, inviolability of dignity and freedom of movement is justified under the law. In the facts and circumstances of the case in hand, the officials have not been able to give a satisfactory explanation for invoking the most serious offences i.e. ‘sedition’ and ‘terrorism’,” he observed.

The state counsel informed the court that Section 7 of the ATA had been deleted. “The narration of facts in the FIR did not support the said addition besides being in violation of the law laid down by the august Supreme Court,” he pointed out.

The court noted that initially a case of “sedition” was registered. On the last date of hearing, the Islamabad deputy commissioner had stated that the magistrate on duty had ordered registration of the case under the offence of “sedition”.

It is obvious from a plain reading of the FIR that the petitioners were not armed and they were exercising their right to assembly peacefully outside the press club in Islamabad, the court observed, adding that the liberty of the petitioners appears to have been breached in excess of jurisdiction vested in the magistrate who was on duty. While exercising judicial restraint, the administration of the Islamabad Capital Territory was afforded an opportunity to review the actions taken against the petitioners.

The court noted that the conduct of the officials, prima facie, established that powers were exercised in an arbitrary and reckless manner. A constitutional court cannot turn a blind eye to arbitrary actions of the officials in the capital of Pakistan having the effect of blatantly violating the fundamental rights of the citizens guaranteed under the Constitution.

Subsequently, the court directed the chief commissioner, the inspector general of police and the deputy commissioner, Islamabad Capital Territory, to submit affidavits explaining the actions taken against the petitioners. The magistrate on duty who had directed registration of the case under the heinous offence of “sedition” shall also submit an affidavit explaining why an order should not be passed to proceed against him for what, prima facie, appears to be misconduct on his part and why he should not be restrained from exercising judicial powers.

The officials shall also explain why the FIR may not be quashed.

The court also sought assistance from the attorney general and the advocate general for Islamabad in the matter.

Further hearing was adjourned to Feb 17.

Published in Dawn, February 12th, 2020