ISLAMABAD: The Supreme Court (SC) on Wednesday dropped hints of determining the constitutionality of two distinct decisions made by different high courts about Section 20 of the Prevention of Electronic Crimes (Amended) Ordinance (PECA) that criminalised defamation.

Headed by Justice Qazi Faez Isa, a two-judge Supreme Court (SC) bench, also stayed until the next hearing a defamation trial against singer Meera Shafi, popularly known as Meesha Shafi, who is embroiled in a dispute with another celebrity, Ali Zafar.

On March 9, the Lahore High Court (LHC) had held that Section 20 of PECA was a valid piece of legislation and did not contravene Article 19 of the Constitution which ensured freedom of speech and expression.

However, on April 8, the Islamabad High Court (IHC) declared the law unconstitutional and ordered its scrapping.

Bench stays defamation trial against Meesha Shafi until next hearing

The Supreme Court on Wednesday issued notices to Attorney General for Pakistan Ashtar Ausaf and the advocate general Punjab to assist it in this regard and granted leave to appeal against the March 9 LHC rejection of a plea seeking to quash the FIR lodged by the Federal Investigation Agency (FIA) on Sept 25, 2020 against Meesha Shafi under Section 20 of PECA.

Meesha Shafi is accused of defaming Ali Zafar on social media, particularly Twitter.

During the hearing, Justice Isa wondered whether Section 20 was contrary to Article 19 of the Constitution and if an individual could be convicted for hurling allegations of a theft against someone, which we hear every now and then.

Justice Isa also wondered why freedom of expression was being criminalised, adding that “we hear the allegations of robbers and plunderers beings leveled on all television channels; even judges are not spared”.

Representing Ali Zafar, senior counsel Sibtain Fazli argued that such allegations fell within the category of defamation, reminding that cases were registered throughout the world against allegations and people were convicted.

Justice Isa was also bitter with the FIA – the prime investigation agency – saying that it turned a blind eye when proscribed organisations issued statements which were also telecast on television channels.

The FIA registers a case on a tweet but ignores statements of such organisations, the judge said.

Moved through advocates Mohammad Saqib Jillani and Khawaja Ahmed Hosain, the petition pleaded that the high court had ignored the fact that the FIR registered against Meesha Shafi was patently mala fide and was lodged only to intimidate and silence the witnesses of the petitioner and weaken her defence in the defamation suit filed by Ali Zafar.

The petition argued that on April 19, 2018, Meesha Shafi had taken to twitter to raise the issue of sexual harassment in the entertainment industry and the obstacles faced by her as a female performer.

“She stated that it was important for her to speak up so that other women around her could do the same,” the petition contended.

It further said Section 20 of PECA 2016 violated Article 19 of the Constitution, adding that guarantee of free speech included the ability of citizens to be able to communicate and articulate ideas without fear or threat of retaliation.

The petition argued that the FIR registered against the petitioner did not disclose the commission of an offence under Section 20.

As such there is no possibility of conviction of the petitioner, therefore the continuation of criminal proceedings before the trial court was an exercise in futility being carried to allegedly humiliate and intimidate the victims, it added.

The Supreme Court, the petition contended, had the inherent power under Section 561A of the Criminal Procedure Code (CrPC) to quash all such proceedings which were an abuse of the process of law even before waiting for the trial court to adjudicate upon the same under Section 249A or 265K of the CrPC.

The Supreme Court had held that the power of the apex court was co-extensive with that of the trial court and could quash any proceeding before the trial if it deemed fit.

Published in Dawn, June 9th, 2022