Pakistan Tehreek-e-Insaf chairman Imran Khan's statement that he would seal Islamabad is not the commission of a crime as his words reflect an intent which is one of the four elements to commission of a crime.
Talking to Business Recorder, General-Secretary of the Islamabad High Court Bar Association, Waqas Malik said there were four stages in the commission of an offence: intention, preparation, attempt and occurrence of the crime. He added that merely indicating the intent to seal the capital did not constitute the commission of an offence. A retired federal secretary told Business Recorder that leaders of political parties gave 'dangerous' statements everyday but the government could not register FIRs against them based on those statements; "if the government could do so then all our politicians would be behind the bars," he added facetiously. The government could not legally block entire swathes of the country on Imran Khan's statement, he added.
However he said the government could detain any one (including politicians) for up to three months under the Maintenance of Public Order Ordinance, Section 16 (MPO 16) but it must also produce evidence in the court as to why the individual was arrested.
For a detention order to be issued, a district magistrate or any government authority can send a reference, supported by evidence that may be accepted or rejected by the government. The Interior Ministry would then be enabled to issue detention orders that need to be served to the individual charged with committing the offence. After the passage of 90 days, a Board would have to re-examine the evidence and the detained individual can then be released on bond and surety of good behaviour.
He maintained that any intent in a statement of a political leader did not come under criminal act. "The government should also take action against Mahmood Khan Achakzai and Minister for Defence Khawaja Asif for delivering inappropriate statements," he said.
He further argued that an amendment bill must be introduced in NHA Act for allowing the government to seal national highways.
Current arrests of PTI workers, under the MPO 1960 and for violations of Section 144 of the Criminal Procedure Code (CrPC), have been widely dubbed as harassment by legal experts. These laws have dated back from the times of the British Raj and in most instances these antiquated laws are being used to silent political protest and target political opposition parties. Arrest of PTI protesters on the orders of various magistrates indicates that the government is aware that the charges will not stand to legal scrutiny but nonetheless continues to round up people in a bid to disrupt the 'November 2 call' to seal the capital.
Tariq Mehmood Jahangiri, a former Deputy Attorney General reportedly said when Section 144 was in force, suspects were usually charged under Section 188 of the PPC, titled 'Disobedience to order duly promulgated by public servant'. The complainant in FIRs registered in such cases, according to Jahangiri, could only be the promulgating authority, ie various commissioners or their boss - the chief commissioner.
Any FIRs where the complainant was a police officer - as was the case with most cases registered in recent days against PTI workers - it was illegal and liable to be quashed by the courts, he said.
In all the cases registered for violation of Section 144 against more than 400 individuals in PTI's sit-in in 2014, sub inspectors and assistant sub inspectors were the complainants.
According to a lawyer who has represented individuals detained under MPO, those booked under Sections 3, 5 and 16 of the MPO are not allowed visitors and can only meet their family with the approval of the Interior Ministry and provincial home secretary.
Jahangiri said violation of Section 188 used to be a bailable offence as the punishment was quite mild.
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