An FIR was lodged on the complaint of a lawyer in May against the management of Geo TV, Shaista Lodhi, the host of Utho Jago Pakistan programme, and some others on charges that they aired objectionable content in the morning show.

Abdul Maroof, special public prosecutor of ATC-III, wrote a letter to the SHO of Mithadar police station on Saturday, stating that, in his view, basic elements of criminal liability were missing in the case due to absence of “mens rea”. He argued that the offence caused to viewers was unintended.

(“Mens rea” is a legal term which literally means “guilty mind”. This forms the basis for a notion that those without sufficient mental capability cannot be judged guilty of a crime. In courts, “mens rea” must be established to prove that a crime has been committed.)

Maroof maintained that since lodging a case in respect of broadcasting offences was barred under Section 34 of the Pemra Ordinance 2002, the case had become illegal, adding that the contents alleged in the FIR fell within the ambit of broadcasting offences case was lodged at Mithadar police station under Sections 295-A [deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs], 298-A [use of derogatory remarks, etc in respect of the Holy Prophet (PBUH)] and 34 (common intention) of Pakistan Penal Code, read with Section 7 of Anti-terrorism Act 1997.

DAWN

The spokesman said it is a bogus excuse and a total lie. The incident in Sadiqabad was also totally stage-managed to create this excuse. No one threatens these cable operators when they show round-the-clock illegal Indian dances. No one threatens these cable operators when they show channels that have shown blasphemous content 60 times more than Geo.

The spokesman said as many as five channels also faced many court cases and police action in this regard but surprisingly, the cable operators do not receive threats for showing these channels. Even before Geo has shown it, two leading channels have already aired it many times.

The spokesman said a security threat was also raised as an excuse during the last government when cable operators suspended transmission of Geo News. The excuse of a security threat then was exposed as completely bogus when the Supreme Court of Pakistan told chairman Pemra that he could not leave the courtroom till the Geo News transmission was restored by cable operators all over the country. The result was that within three hours, Geo News’ transmission was restored all over the country.

The spokesman said cable operators, just like broadcasters, are operating on the basis of a licence that they have applied for and that Pemra has granted them. The basic term of the license is that no cable operator can itself suspend or disrupt transmission of a licensed channel unless Pemra directs it to do so. If a cable operator violates this term of licence, its licence is liable to be revoked. Even if security threat is accepted as genuine, this cannot be used as an excuse for a cable operator to violate the term of their licence by illegally suspending Geo’s transmission.

“What if a duly licensed mobile phone company suspends its mobile phone network for a week and uses security threat as an excuse when PTA wants to suspend its licence? What if a duly licensed commercial bank shuts down all its operations all over the country and uses security threat as an excuse when State Bank of Pakistan wants to suspend its licence? And what about our police that face life threat on a daily basis? Can police officers remain at home drawing the salaries on the pretext that they are facing security threats? And what about courts and honourable judges, especially those of lower courts, who are expected to try and convict dangerous criminals and terrorists?” the spokesman said.

He reminded that when Chief Justice of Balochistan High Court Qazi Faiz Isa summoned journalists and editors of all the newspapers of Balochistan and questioned them as to why they were publishing versions of terrorists, who claimed responsibility of killing policemen. When publishers of those newspapers produced before him evidence of serious threat that they are facing in Balochistan, Chief Justice Qazi Faiz Isa gave them a long summon. He said that don’t publish any newspaper if you cannot face any threat. He said if security threat is accepted as a valid excuse to break the law then there will be anarchy all over the country. The chief justice also said that if security threat is valid then he and his fellow judges in Balochistan should stop hearing cases and dispensing justice just because their lives were threatened.

The spokesman said the cable operators have decided to do their business in Pakistan within the prevailing environment. They cannot pretend that they are working in some European country. Lawyers, judges, police etc. everyone is facing security threat in Pakistan these days. This does not exempt people to just violate their legal obligation and use security threat as an excuse.

He said Geo itself received a most direct and serious threat in writing from terrorists who wanted their version and their ideology to be properly broadcasted. “Just because it received the threat, can Geo broadcast TTP’s version when it is murdering and beheading our soldiers? Will its licence not be liable to be revoked? Can any channel in Pakistan start showing TTP’s version round the clock just because it is facing security threats?”

The spokesman further said even if the threat being faced by cable operators is genuine, then it has nothing to do between cable operation (the licensee) and Pemra (the licensor) for correct and legal position is if any cable operator violates terms of its licence, e.g. by keeping transmission of Geo suspended when Pemra has directed them to show it, its licence is liable to be revoked. If a cable operator is receiving life threat because of some business dispute or professional rivalry or from some extortionist or criminals or even because of showing any channel of Geo, it is a matter between cable operator and police. If they are facing any threat then they should seek help from police and pursue remedies through law enforcing agencies. Instead of the path provided under the law they cannot just suspend valid transmission of Geo and thus violate a direction of Pemra.

The spokesman said suspension of Geo News by Pemra ended two weeks ago and Pemra has never suspended Geo Kahani and Geo Tez. Despite this, Geo News is either not being shown in 80 per cent areas of Pakistan or it has been pushed to last channels where it is difficult/impossible for viewers to find. Geo Kahani and Geo Tez are also not being shown.

He said the cable operators are deliberately refusing to show channels of Geo because they are being threatened for showing channels of Geo.The federal government and Pemra have only two options. Either what cable operators are claiming is a lie in which case they must take action against them to restore transmission of all Geo channels. Or if the federal government and Pemra believe that the excuse of cable operators regarding security threat is genuine they must make a candid public admission of it:

“a. All cable operators are liable to show Geo channels;

b. 80 percent cable operators are not showing it because some hidden force is threatening all of them from doing so;

c. There is nothing that the federal government can do about it because it simply has no writ to do anything about the people who are threatening cable operators.”

After that, at least Geo can claim compensation for the government’s failure to fulfil its obligations.

On the cable operators excuse that they are showing Geo at last numbers because it is their discretion on which number to show it and also that number of TV channels that have been licensed by Pemra is far in excess of the capacity of TV sets owned by ordinary people, the spokesman reminded that in 2010, when hearing a petition of Geo, honourable Supreme Court set up a one-member media commission to look, among other things, into the issue of shuffling and placement of channels. According to the commission report, cable operators are constitutionally required to show TV channels having nationwide viewership at starting numbers. This was a constitutional requirement and the right of the viewers. The commission also found that shuffling of channels, disrupting their signals, throwing them at last numbers etc. was illegal. The honourable Supreme Court adopted that report and made it part of its judgment.

In the latest petition of Geo News, honourable Supreme Court has once again reproduced from 2010 judgment and from the Media Commission Report and disposed off Geo News’ petition only when Pemra undertook to restore the channel to its original position. So it is not up to discretion of cable operators to decide to show Geo News at No. 3 position today and No. 93 tomorrow. According to the Supreme Court judgment each cable operator has a constitutional obligation to show Geo News and all Geo channels at their original starting numbers.

The spokesman said Pemra’s direction to cable operators also requires each licensee cable operator to restore Geo news transmission at its original position. This also shows that the discussion of their own discretion and capacity of TV set is bogus and mala fide.

The spokesman said all cable operators were showing Geo channels at certain numbers on 19th April. “Why is it that after Pemra received a complaint about Geo following attack on Hamid Mir on 19th April, cable operators are either blocking its transmission or are making every kind of excuse not to show it at its original position? Why is it all of a sudden cable operators are using excuses such as it being a matter of their own discretion and that TV sets do not have capacity to show all the licensed channels when there was no such talk before 19th April 2014?”

The spokesman said the original scheme put in place through Pemra Ordinance for regulation of electronic industry anticipated and sought to prevent this very problem by barring any broadcasters from owning or controlling a cable business and vice versa. The implementers of the scheme were aware that even if one TV broadcaster were given control over cable operation, it would use that power to damage competitors in the same way that the Geo’s competitors are doing today.

The spokesman said the real problem is that one media group that owns one news channel has purchased or, directly or indirectly, concluded a business deal with cable operators in the country while apparently cable operators are still continuing with their previous names and owners, in reality they are in the hands of one media group, the owner of which is openly boasting that Geo is finished, “I will keep Geo channels off air and because of lack of viewership they will not get any advertisements and they will go bankrupt anytime now.” The spokesman said all cable operators led by Khalid Arain are now employees of that group and they only do and say what the owner of that group instructs them to do.

Both Khalid Arain and owner of the media group use the name of hidden hands to get the Geo closed. They claim that they are acting on behalf of hidden hands. They also arrange meetings of cable operators with hidden hands.

The spokesman said if the apex court forms a commission, many secrets will come to the fore. He said the Pemra and the federal government are fully aware about the above dangerous development and are yet avoiding doing anything about it.

The News

Justice Ijazul Ahsan ruled this while issuing a detailed judgment on a petition moved by Mubashar Lucman seeking initiation of high treason proceedings against the owners of the Jang and Geo group and cancellation of the declaration of Daily Jang and The News and the licence of Geo TV.

The federation of Pakistan is the main respondent in the petition. The judge was of the view that nothing has been placed on record nor has anything been alleged that may show any direct or indirect nexus or connection between respondent Nos. 2 & 3 and any act on their part which may have effect of abrogating or subverting or suspending or holding in abeyance the Constitution of Pakistan or any part thereof. Also, how could Mubashir Lucman who is associated with a rival media group, can claim that he filed a petition again Jang and Geo in public interest?

Further it has neither been alleged nor argued that the said respondents have attempted or conspired to abrogate or subvert or suspend or hold in abeyance the constitution or any part thereof by use of force or show of force or by any other unconstitutional means.

In addition, there is nothing on record to show that the said respondents have aided or abetted or collaborated in one or more of the afore-noted acts.The judge said the offence of high treason is a serious offence considering that on conviction, a person is punishable with death or imprisonment for life. There needs to be substantial material and evidence available on the record that may furnish prima-facie basis for the federal government to come to the conclusion that a person is liable to be tried under the said offence. The petitioner has not placed any such material showing commission or attempted commission of the offence on record except a book authored by him. “This, in my [judge] humble opinion, does not constitute adequate or sufficient material that may furnish any basis to grant the relief sought.

Text of judgment:

1. The petitioner is a known anchor person of a news group in Pakistan, He has filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and has appeared in person to argue the matter. He has pointed out that in a recent incident at Karachi, a prominent anchor person working with a news group owned by respondent Nos. 2 & 3 survived a murder attempt. He maintains that despite the fact that a First Information Report (“FIR”) has not so far been lodged, a scandalous campaign has been launched by the news group owned by respondent Nos. 2 & 3 on the basis of false, frivolous and unsubstantiated allegations against the Inter Services Intelligence Agency (“ISI”). He submits that this vilification campaign is violative of Section 20 of the Pakistan Electronic Media Regulatory Authority Ordinance 2002 (“PEMRA Ordinance”) and the rules framed there-under. It is also gross abuse of the right of freedom of speech enshrined in Article 19 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The petitioner submits that ISI is a credible state institution. It has a pivotal role in countering threats against national security. The campaign initiated by the media group owned by respondent Nos. 2 & 3 could defile its reputation and undermine the confidence of the general public in the said institution. These actions, according to the petitioner, constitute high treason.

3. The Petitioner alleges that respondent Nos. 2 & 3 are directly responsible for the illegal actions on the part of their media group and are liable to be tried and punished for committing the offence of high treason.

4. He prays that the Federal Government may be directed to initiate a case for high treason against respondent Nos. 2 & 3 under Article 6 of the Constitution of Islamic Republic of Pakistan, 1973 read with Treason (Punishment) Act 1973 and the relevant provisions of the Pakistan Penal Code. A further direction is sought to cancel the license of respondent No.4, which runs television channels under the name and style of “Geo News” and “Geo Tez”. A prayer for cancellation of declaration issued in favour of respondent No.2 to publish the daily newspapers “Jang” and “The News” has also been made.

5. I have heard the petitioner at length and considered the arguments advanced by him.

6. The main focus of the petitioner’s arguments is that respondent No.1 should be directed to initiate a case against respondent Nos. 2 & 3 for high treason in terms of Article 6 of the Constitution of Islamic Republic of Pakistan, 1973. The questions requiring determination by this Court are: – a. Whether in the facts and circumstances of this case, this Court can, in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, direct the Federal Government to initiate a case under Article 6 of the Constitution of Islamic Republic of Pakistan, 1973 against respondent Nos. 2 and 3. b. Whether this petition is maintainable in its present form and the relief sought can be granted.

7. On hearing the petitioner and examining the relevant provisions of law, the answer to the afore-noted questions has to be in the negative for the following reasons: – a. The offence of high treason is a special offence. It is a constitutional offence defined by our Constitution. Article 6 of the Constitution of Islamic Republic of Pakistan, 1973 defines High Treason as follows: –

6. High treason.- [(1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.] (2) Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.

[(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any Court including the Supreme Court and a High Court.]

The contents of this petition and arguments of the petitioner do not show that respondent Nos. 2 & 3 fall within the definition of the “Person” visualized in Article 6. Nothing has been placed on record nor has anything been alleged that may show any direct or indirect nexus or connection between respondent Nos. 2 & 3 and any act on their part which may have effect of abrogating or subverting or suspending or holding in abeyance the Constitution of Pakistan or any part thereof. Further it has neither been alleged nor argued that the said respondents have attempted or conspired to abrogate or subvert or suspend or hold in abeyance the constitution or any part thereof by use of force or show of force or by any other unconstitutional means. In addition, there is nothing on record to show that the said respondents have aided or abetted or collaborated in one or more of the afore-noted acts.

b. The offence of high treason is a serious offence considering that on conviction, a person is punishable with death or imprisonment for life. There needs to be substantial material and evidence available on the record that may furnish prima-facie basis for the Federal Government to come to the conclusion that a person is liable to be tried under the said offence. The petitioner has not placed any such material showing commission or attempted commission of the offence on record except a book authored by him. This, in my humble opinion, does not constitute adequate or sufficient material that may furnish any basis to grant the relief sought.

c. Article 6 (3) of the constitution provides that “Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason”. In exercise of powers under the said article, the High Treason (Punishment) Act 1973 was enacted on 29.09.1973. It provides that a person who is guilty (a) of having committed an act of abrogation or subversion of a Constitution enforced in Pakistan at any time since 23.03.1956; or (b) of high treason as defined in Article 6 of the constitution, shall be punishable with death or imprisonment for life.

However, in order to initiate proceedings for conviction of offence of high treason, Section 3 of the act provides as follows: –

3. Procedure. – No Court shall take cognizance of an offence punishable under this Act except upon a compliant in writing made by a person authorized by the Federal Government in this behalf.

I have specifically asked the petitioner if he has any authorization from the Federal Government to file a compliant relating to commission of the offence of High Treason by respondent Nos. 2 & 3. He has candidly conceded that such authorization has neither been sought by nor given to the petitioner. He has also not approached the Federal Government with the requisite evidence or material to initiate such complaint in accordance with law and the constitution.

d. During the course of arguments, the petitioner has vehemently argued that respondent Nos. 2 & 3 as well as the news channels which are owned and run by their company have unleashed a storm of false, frivolous and baseless allegations against ISI by alleging that the said agency is involved in the assassination attempt on Mr. Hamid Mir’s life. He submits that such reckless and baseless allegations could defile the reputation of the agency and undermine the confidence of the general public in the institution. In the first place, even if the argument of the petitioner was to be taken on its face value, the said alleged actions do not prima facie fall within the definition of high treason narrated above. Further it appears that ISI/Federal Government has already initiated proceedings in this regard by filing a complaint with the Pakistan Electronic Media Regulatory Authority (PEMRA) through the Ministry of Defence and has sought action against the respondent under the PEMRA Ordinance and rules and regulations framed there under. There is no denial of the fact that PEMRA being the sole regulatory and licensing authority in these matters has the requisite powers and the exclusive jurisdiction to address this issue in accordance with law. The aggrieved party has approached the competent forum which has taken cognizance of the matter. I have asked the petitioner how he is an aggrieved party in this matter. Further being associated with a rival media group, how he can claim to have brought this petition in public interest. He has not responded with a cogent and legally sustainable answer. In these circumstances, I find that the matter is already before the competent forum having been bought before it by an aggrieved party.

Prima facie, the petitioner is neither an aggrieved party in this matter nor is this Court the correct forum to agitate these issues. As such this petition is not maintainable.

e. The petitioner has also argued that the vilification campaign has commenced even before an FIR was lodged and that the matter is not being properly investigated. In this regard suffice it to say that the investigative machinery has already been set into motion. Further, the Federal Government has constituted a commission comprising 03 Hon’ble Judges of the Supreme Court of Pakistan to enquire into the matter. In these circumstances, the apprehensions of the petitioner are obviously misplaced and premature. Further if the victim of the offence or his family is dissatisfied with the manner in which investigation is being conducted, judicial remedies under the criminal statutes are available under the law, which can be availed by the concerned parties, should the need arise.

f. The petitioner has also argued that the license of Independent Media Corporation (Pvt.) Ltd. (respondent No.5) should be cancelled on the basis of the allegations made in this petition. As discussed above, if at all the petitioner has any grievance relating to violation of terms of license or the provisions of the PEMRA Ordinance, the correct forum for the petitioner is to approach PEMRA through an appropriate application for action in accordance with law. This Court in exercise of extra ordinary constitutional jurisdiction does not ordinarily interfere in matters in which adequate and efficacious alternate remedies are available. Reference in this regard may usefully be made to Rai Ashraf Vs. Muhammad Saleem Bhatti (PLD 2010 SC 691).

g. The petitioner has not been able to indicate any ground on the basis of which it can be inferred that the alternate remedies are either not efficacious or inadequate. Further the allegations made in the petition are generalized, vague and without any supporting evidence. The contents of the petition show that the allegations require a factual inquiry which would necessitate recording of evidence. It is settled law that this Court in exercise of extra ordinary Constitutional jurisdiction under Article 199 of the Constitution does not ordinarily undertake the said exercise. As such even on this score, this petition is not maintainable. In coming to this conclusion, I am fortified by Fida Hussain and another Vs. Mst. Saiqa and others (2011 SCMR 1990), Shah Wali and others Vs. Ferouddin & others (2011 SCMR 1023), Amir Jamal and others Vs. Malik Zahoor ul Haq & others (2005 PLC 366) and Pervaiz Alam Vs. Pakistan Dairy Products (Pvt) Ltd. Karachi & 2 others (2000 SCMR 718).

h. As far as cancellation of declaration allegedly issued in favour of respondent No.2 to publish the Daily “Jang” and “The News” are concerned, there is a specific procedure prescribed in the News Agencies and Book Registration Ordinance 2002 (“Ordinance 2002”) for issuance of declaration and cancellation of the same. Admittedly the petitioner has not approached the competent authority/ forum provided by law for cancellation of the declaration in question. Where the law prescribes a thing to be done in a particular manner, it must be done in that manner alone and in no other manner. Reliance in this regard can usefully be placed on Khalil ur Rehman etc. Vs. Dr. Manzoor Ahmed etc. (PLD 2011 SC 512), Humayun Sarfraz Khan Vs. Noor Muhammad (2007 SCMR 307) and Ata Muhammad Qureshi Vs. The Settlement Commissioner Lahore Division Lahore (PLD 1971 SC 61).

In addition, not an iota of evidence has been placed on record to substantiate the allegation that respondent No. 2 has indulged in any act or omission that may furnish basis for cancellation of the declaration in question. Further the remedies available under Ordinance 2002 have admittedly not been availed. No reason is forthcoming for failure on the part of the petitioner to do so. Confronted with this situation, the petitioner has not pressed this prayer. His main emphasis has been to seek a direction to respondent No.1 to initiate a case for treason against respondent Nos. 2 & 3 under Article 6 of the Constitution read with the High Treason (Punishment) Act 1973. The reasons for refusal of this Court to grant the relief sought have been enumerated in detail in the foregoing paragraphs.

8. For reasons recorded above, I find that this petition is not maintainable. It is accordingly dismissed in limini.

The News