‘Mutiny’ unlimited

Published December 21, 2022
The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

THE offence of mutiny was often used by colonial powers to quell freedom struggles. Post-colonialism, countries use it to suppress armed struggle or counter attempts at creating division within the armed forces. But of late, an outlandish and perilous mix of the two has surfaced in Pakistan: the offence of mutiny is being recklessly used to curb criticism.

No sooner does, someone publicly criticise a member of the armed forces than multiple cases alleging mutiny are registered in almost every nook and corner of the country.

Three legal anomalies arise from this situation: First, Section 131 of the Pakistan Penal Code criminalises direct abetment of mutiny while Section 505 criminalises any statement made with the intent of inciting mutiny.

LEAs in Pakistan have misapplied Section 131; for an act to become an offence under it, there must be something on record to establish that the accused contacted or attempted to contact armed forces’ members. Otherwise, applying it would be legally misconceived.

Moreover, Section 505 is only applicable when a statement is circulated with the intent of inciting mutiny or is likely to incite mutiny. Thus, treating criticism directed towards a member of the military as mutiny would, irrationally, widen the ambit of Section 505.

Publicly pointing out shortcomings and illegalities is not mutiny. It is, at best, a case of defamation, if the statements are false. Justice Babar Sattar, while quashing an FIR under Section 505, held that a tweet cannot incite mutiny within the armed forces. Granting bail to the PTI’s Shahbaz Gill, Justice Athar Minallah held that the “the discipline of the armed forces is indeed not frail … to be affected or influenced by reckless … statements”.

The trend of multiple FIRs must be ended.

It is not the law’s purpose to punish individuals for expressing unpopular views. The Constitution recognises the importance of safeguarding the right to free speech. Free speech can only be restricted in a reasonable manner through the law, particularly when the public interest is endangered.

Second, by virtue of Section 196 of the Criminal Procedure Code, an FIR under Section 505 cannot be registered without government authorisation. In the Capt Safdar case, while interpreting Section 196, the Peshawar High Court held that the complaint was not competent without such authorisation.

The Lahore High Court, in the Javed Hashmi case, held that non-compliance with Section 196 vitiated the proceedings. Recently, almost all FIRs under Section 505 have been registered on complaints of either private or unauthorised persons.

Third, the most significant legal anomaly is registering multiple and simultaneous FIRs at rocket speed across Pakistan on the complaints of random individuals. Alleging that the journalist incited mutiny, 16 FIRs were registered against the late Arshad Sharif. The most recent victim is Azam Swati who faces some three dozen such FIRs.

The law with respect to the registration of multiple FIRs was settled in the Sughra Bibi case by the Supreme Court which held that there is to be only one FIR in respect of an occurrence wherein a cognisable offence has been committed. This view was taken by the court in a case involving two FIRs at the same police station. So, how can the law allow the registration of dozens of FIRs for the same offence, and that too, all over Pakistan?

Further, multiple FIRs violate Articles 9 (life/liberty) and 14 (human dignity) of the Constitution. The initiation of a criminal trial is a cumbersome process, carrying with it a degree of coercion. It should not be triggered by frivolous complaints, which amount to harassment, since it leads to the accused being entangled in numerous unwarranted criminal proceedings.

As such, the accused is forced to continually surrender his liberty and time before the police and courts. Such an absurd interpretation of CrPC provisions cannot stand the test of constitutional scrutiny.

India’s supreme court has adopted an interventionist approach in cases involving multiple FIRs. For instance, in the actress Khushboo case (2010), the journalist Amish Devgan case (2020) and the editor Republic Bharat Channel case (2020), pending complaints were either transferred to one court or the case was quashed after the first FIR. The court held that trial should be conducted in the city where the accused resided.

Ideally, we need a mechanism like the Judicial Panel on Multidistrict Litigation in the US, a special body with the authority to transfer similar claims in multiple districts to a single district. There is no mechanism to address multiple FIRs in Pakistan.

The criminal law machinery is being abused; there are several wrongs but no remedy. Until lawmakers come up with a solution, the trend of making the accused run from one province to another will continue. The apex court as the ultimate guardian of fundamental rights needs to put an end to this injustice.

The writer is a lawyer based in Lahore.

Published in Dawn, December 21st, 2022

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