The Islamabad High Court (IHC) has summoned Islamabad chief commissioner and the inspector general of police (IGP) at the next hearing in the arrest of Pashtun Tahaffuz Movement (PTM) protesters.
A single bench of IHC comprising Chief Justice Athar Minallah heard the bail petitions of 23 activists of the PTM arrested by the Islamabad police for protesting outside the National Press Club against their leader's detention on Tuesday. The court sought explanation from Islamabad magistrate, who had directed for registration of case against the PTM protesters and including sedition charges in the FIR.
The court order noted, "The magistrate, who was on duty and 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 a 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."
Justice Minallah questioned how peaceful protesters could be booked under sedition and anti-terrorism charges. A report submitted by authorities said the activists were booked under sedition and anti-terrorism charges on the directives of city magistrate Ghulam Murtaza Chandio.
The chief justice also directed the chief commissioner, the Islamabad IGP and Islamabad deputy commissioner to submit their respective affidavits explaining the actions taken against the petitioners. He further ordered that till the next date fixed no adverse action shall be taken against the petitioners.
The court order said notice was directed to be issued to the learned attorney general for Pakistan and Islamabad advocate general, to assist the court in the matter. Then, the court fixed February 17 as next date of hearing, while the chief commissioner and the IG of Islamabad Police will appear in person on the said date.
The IHC noted, "It is obvious from a plain reading of the FIR that the petitioners were not armed and were exercising their right of assembly peacefully outside the Press Club, Islamabad. The liberty of the petitioners appears to have been breached in excess of jurisdiction vested in the magistrate who was on official duty. Admittedly, the offence of "sedition" was included in the FIR in violation of the judgment rendered in the case titled "Ali Raza and other vs. Federation of Pakistan and another."
The bench said that on the last date of hearing it was informed that the offence of "sedition" was deleted and instead offence under Section 7 of Anti-Terrorism Act (ATA), 1997 was added. The narration of facts in the FIR did not support the said addition besides being in violation of the law laid down by the Supreme Court. "While exercising judicial restraint, the administration of the Islamabad Capital Territory was afforded an opportunity to review the actions taken against the petitioners. When the petitions were taken up today, the learned state counsel informed that Section 7 of the ATA, 1997 was deleted and not the other offences," said the IHC's written order.
According to the order, it was 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 were 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". Through their conduct the officials have, prima-facie, established that powers were exercised in an arbitrary and reckless manner.
The court observed that 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.