Since the enactment of PECA, numerous cases have been lodged under it and there has been a mixed response of courts while treating cases involving cybercrimes.
Though the courts generally do not interfere in the investigation process of a criminal case to avoid any influence in carrying out independent investigation, in exceptional circumstances if it turns out that that the investigation is without jurisdiction, having been initiated without statutory approval of the competent authority, suffers from malafides or is abuse of the law; the courts have taken a relatively lenient view and quashed the investigations, inquiries and even FIRs in such cases.
The investigation procedure needs a thorough overhaul to meet with the needs of the modern era. A person, even if there is no FIR against him/her, is detained on charges not known to him/her, arrested without any cause and the trial is delayed due to the investigating officer or because of the prosecution’s non-serious attitude. This harms no one but the victim.
Ideally speaking, investigation should be carried out first and if there is a likelihood of the accused absconding, or tampering of evidence or apprehension of recurring of the offence; the person facing charges must be arrested but in reality the individual’s liberty is cut short even before a preliminary assessment of charges is made and they remain incarcerated until proven innocent.
The delay in process does not affect the investigating agency but the person against whom the investigation is initiated remains under constant fear as the sword of investigation is hanging over him/her. Even after conclusion of inquiry and lodging of FIR, investigating officers and prosecutors remain absent from the trial. The accused that turns out to be innocent at the end of the day, and the victim of online abuse, are the ultimate sufferers of the delay caused due to the absence of investigating officers and prosecutors despite the fulfillment of procedural formalities.
There are instances where courts have quashed inquiries and investigations initiated by the FIA on the ground that the FIA’s actions amounted to harassment. It has been noted with surprise by courts that without examining the legal provisions relating to the jurisdiction of the FIA and seeking prior permission from the competent authority an inquiry has been initiated. Courts have reminded the FIA that it cannot be allowed to carry out fishing and roving inquiries.
In a landmark judgment, which begins with a quotation of George Orwell, the Islamabad High Court quashed an investigation being conducted by the FIA against a journalist. The judgment noted that actions of FIA officials breached essential principles of fairness. It went on to note that if a journalist apprehends fear, he would not be in an ideal position to report true facts, and it undermines the independence of the press if there is a threat to free speech.
Although – except section 10, 21 and 21, – offences under PECA are non-cognizable still citizens are picked up by the FIA on charges which are prima facie non-cognizable. To avoid the procedure of seeking approval of the court to arrest a person, cognizable provisions of the Pakistan Penal Code are often included in the FIR.
The police, under Police Rules, 1934, have the power to release an accused without forwarding him/her to a magistrate upon execution of a bond and also cancel an FIR without the orders of a magistrate. Similarly, the FIA when probing a case under PECA is empowered to release an accused on account of deficient evidence – but most of the investigations/inquiries against citizens and journalists are politically motivated. Those who are targeted have to knock on the doors of the higher courts to seek shelter from such harassment.
The notices sent by the FIA usually contain no information regarding inquiry. They only contain the name of the person summoned by the FIA, inquiry number and date and time of reporting. The Supreme Court has laid down clear guidelines that notices issued by NAB, or for that matter the FIA, must contain details of the investigation and also mention the nature of the investigation. It was reiterated by the Islamabad High Court as well that the guidelines of the Supreme Court regarding ambiguous and unclear notices must be followed by the FIA. NAB has put in place the mechanism as provided by the Supreme Court but as far as the FIA is concerned, it is yet to follow the directions by mentioning necessary details of the inquiry/investigation in the call up notice.
The FIA may take undue credit of getting those accused of cybercrimes convicted, even when private lawyers play a pivotal role in securing such convictions, but it must be reminded that going after citizens under the garb of PECA is violative of constitutional liberties and infringes freedom of speech. FIA investigating officers and prosecutors in cybercrime cases must be sensitized about victims’ plight if trial is delayed because of them.
To keep a check of accountability over the FIA, a parliamentary oversight through periodic reports was mandated by law but it is yet to materialize. The role of courts has been phenomenal; despite insufficient state assistance, they have convicted the accused. And, despite the FIA’s efforts, courts have done all to meet the ends of justice by nullifying illegal actions.
The writer is a lawyer based in Karachi. Twitter: lawyerwrites