report in The Express Tribune, July 16, 2023
LAHORE: A Lahore High Court division bench, headed by Justice Ali Baqar Najafi, has set aside the trial court’s conviction and acquitted a suspected affiliate of the terrorist organisation al-Qaeda, according to its detailed verdict issued on Saturday.
The court observed that a person offering their mobile phone for scrutiny could implicate them for any offence so this would amount to self-incrimination, which was prohibited under the Constitution.
The suspect, Muhammad Rehmatullah, was allegedly involved in distributing banned books, magazines and stickers for the propagation of the banned organisation.
On November 8, 2022, the Counter Terrorism Department (CTD) lodged an FIR against the suspect under various charges including sections 8 and 9 of the Anti-Terrorism Act, 1997.
Later, an anti-terrorism court in the Gujranwala division awarded him six years and four months imprisonment under different charges.
Setting aside that judgment, the LHC bench mentioned in its verdict that Article 13(b) of the Constitution clearly indicated that no one could be compelled to be a witness against himself.
It continued that thus an individual offering their mobile phone for scrutiny could implicate them for any offence, because it was not expected that everything they had stored in their device was by consent or downloaded systemically without their permission would be fresh in their memories.
“The panorama of [the] prosecution case’s theory is not confidence inspiring. Thus, [the] prosecution has failed to prove the charge[es] against the appellant beyond [the] shadow of reasonable doubt”, the judgment read.
The verdict added that it could be said that an individual’s digital belongings including phones, SIMs and SD card data could have been copied and gone through.
“Our phone may have been turned on, apps and browsers opened; the police might have access to any accounts our phones logged into. This means they may have read personal communication, noted personal accounts including email addresses, social media account names to follow, sent messages or made posts using our login,” the judgment continued.
The LHC division bench noted that depending upon the circumstances of the arrest and the method of seizure of the mobile device, the citizens were subject to a certain set of rights, laws, or protections.
“In [the] US, it is the right of every person to decline the warrantless search of [their] mobile phone, if [they are] arrested or taken into police custody, [they] should verbally state that [they do] not consent to a search of [their] devices. A law enforcement agency is only permitted to conduct a warrantless search of [their] device if a compelling case for an emergency can be made,” the verdict read.
“The prohibition ensured and guaranteed through Fourth and Fifth Amendments in [the] Constitution of [the] US as highlighted in preceding paragraphs includes self-incrimination. Therefore, giving consent for the acquisition or extraction of data from your cell phone by law enforcement agencies during the investigation of a case amounts to self-incrimination. Our system too identifies [the] same principles of protection as in [the] US. Such prohibition and protections are embodied in Articles 9, 12, 13, 14, 24 of the Constitution of the Islamic Republic of Pakistan, 1973,” the judgement further mentioned.
The counsel for the suspect contended that his client had been implicated in a forged case merely to humiliate him, otherwise he had nothing to do with this matter.
He added that the sentence awarded by the trial court was not in accordance with the law and no judicial mind had been applied.
The counsel requested the court to set aside the sentence awarded by the trial court and acquit his client.
The law officer strongly opposed the version of the suspect’s counsel, arguing that the trial court awarded him the sentence relying upon the substantial evidence of his involvement in the case.
He asked the court to dismiss the appeal. https://tribune.com.pk/story/2426507/suspected-al-qaeda-affiliate-acquitted
