Important Judgment about Instigation and distribution of child pornography is patently offensive, extremely and heinous atrociously harmful for the society.

 The instigation and distribution of child pornography is patently offensive, extremely and heinous atrociously harmful for the society. We must not normalize and ignore its far going consequences in the society and its children. The impact of child pornography on the society is remarkable and enforces the normalization of child exploitation by way of providing them safety and protection. The impact of child pornography on child is unimaginable and long term daunting consequence on the child. The president and CEO of the International Centre for Missing and Exploited Children has reported that “Each and every time an image of a child being sexually assaulted is traded, printed or downloaded from the websites, the child depicted in the photo is re-victimized”. The physical and psychological harm to these children is irreparable / incurable and those who possess and distribute these images are as complicit as who manufacture them, it is a crime that shocks the eyes and conscious which cannot be taken lightly, as there is sufficient evidence available against the accused and he has committed the crime against the humanity by exploiting the most vulnerable segment of the society, so such accused does not deserve the concession of extra ordinary relief.

Criminal Misc. No. 1344-B/2020

Irfan Sarwar Versus The State.

ORDER SHEET.

ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

Criminal Misc. No. 1344-B/2020

Irfan Sarwar

Versus

The State.

Date of order/ proceeding: 05.01.2021 Mr.

Usman Ali, Advocate for Petitioner.

Imran Haider, Assistant Director-Law, FIA CCRC, Islamabad.

Anees-ur-Rehman, Technical Assistant-FIA, Islamabad.

Order

Through the instant petition, the petitioner / accused Irfan Sarwar seeks bail after arrest in case F.I.R. No. 22/2020, dated 04.11.2020, offence U/S 20, 22 of PECA-2016, registered at Police Station FIA Cyber Crime Circle, Islamabad.

02. Brief facts of the case are that on 04.11.2020 at 17:30 hours; one Anees Ur Rehman complainant lodged FIR at FIA Cyber Crime Reporting Centre Islamabad, with the averment that accused Irfan Sarwar with criminal intentions and ulterior motives, illegally and unauthorizedly created/operated Facebook and WhatsApp groups for the sole purpose of uploading/sharing and disseminating child pornographic videos/pictures and also found to be the administrator of the Facebook group namely “Vairal Videos group” having URL https://www.facebook.com/groups/569831213929218 which is linked with the Facebook profiles namely “Murshad Nahi Bataoungaa” having URL http://www.facebook.com/murshadnahi.nahibtaoungaa and “Mehwish Sheikh” having link

https://www.facebook.com/ishan.prince.3990

alongwith the WhatsApp group registered on mobile No. 0312-3026812. The aforesaid Facebook group/profiles and WhatsApp group were used to disseminate/transmit/upload/share/propagate child and adult pornographic videos/pictures publicly on social media platforms. Another report was sent by the Director General, Ministry of Human Rights, Islamabad, in which it was stated that Facebook Authorities have reported Whatsapp, and Facebook groups namely “Vairal Videos Group” which is used to transmit, share and possess pornographic videos/photos of minors publicly on social media platforms. It was reported that the alleged groups were used to propagate and disseminate child sexual exploitation contents through social media. Consequent upon revelation of information, instant FIR was lodged. 03. Learned counsel for the petitioner has argued that the petitioner is an illiterate person and has falsely been implicated in this case; that offences do not fall under the prohibitory clause of 497 Cr.P.C; that Investigation has been completed and no recovery has been affected from petitioner; that the petitioner is behind the bars for last two months and is no more required by the police for investigation, therefore, he is entitled for grant of post arrest bail.

04. On the other hand, learned law officer assisted by an official of FIA stated that sufficient evidence is available against the petitioner. According to forensic report, it transpired that the petitioner / accused with criminal intention and ulterior motives unauthorizedly created Facebook and Whatsapp Groups for the sole purpose of uploading, sharing and disseminating the child pornographic pictures. The accused is found to be administrator of Facebook Group linked with the fake profile namely “Murshad nahi nahi bataongaa” having the URL http://www.facebook.com/murshadnahi.nahibtaoungaa, as mentioned in the FIR. The Whatsapp Group was created on Mobile No. 0312-3026812 and was registered in the name of petitioner / accused, SIM of the said mobile number was issued in the name of the petitioner / accused. The profiles of Facebook and Whatsapp Groups have been recovered from the petitioner / accused, which were used to disseminate / transmit / share / propagate the child pornographic pictures publically on social media platform. The mobile phones have been recovered from the custody of petitioner which were used to create Whatsapp Photos and videos groups for sharing of disseminating and child exploitation through social media. Hence, the petitioner is not entitled for grant of post arrest bail.

05. I have heard the contentions of learned counsel for the petitioner and Assistant Director (Law), FIA and perused the record.

06. As far as the argument regarding the grant of bail in the cases not falling under the prohibitory clause is concerned. It is clarified, that the Hon’ble Supreme Court of Pakistan has held in “2009 SCMR 174 titled as Shameel Ahmed VS. The State”, that “with regard to the contention that the bail should always be granted in cases not falling within the domain of prohibition clause of proviso to section 497, Cr.P.C. it is observed that it is not a rule of universal application. Each case has to been seen through its own facts and circumstances”. The same principle has been laid down in “2003 SCMR 573 titled as Afzaal Ahmed VS. The State” which states that “The mere fact that an offence did not fall within the prohibitory clause of section 497(1) of the Cr.P.C. did not mean that such an offence had become a bailable offence. The discretion still remained with the competent Court to consider whether a person accused of such an offence did or did not deserve the grant of bail in accordance with established norms governing the exercise of such a power. It has also been held by the Hon’ble Supreme Court of Pakistan in “2002 SCMR 442 titled as Muhammad Siddique VS. Imtiaz Begum and others” that “none can claim bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause 497 Cr.P.C”. On the same subject the guidance has also been taken from the law laid down in “2008 SCMR 807 titled as Haji Muhammad Nazir and others VS. The State”, wherein, it has been held that “It is true that offences for which petitioners have been charged entails punishment not more than five years, which also falls within the category of non-bailable offence, therefore, they are not entitled as a matter of right for release on bail, notwithstanding the fact that their case is covered under the non-prohibitory clause as defined under section 497, Cr.P.C. as it has been held in the case of Muhammad Siddique (ibid). As far as principle of law being relied upon by the learned counsel from the judgment in the case of Tariq Bashir (ibid) that the grant of bail in offence punishable with imprisonment for less than ten years is a rule and refusal is exception would not help to the petitioners in view of exceptional and extraordinary circumstances of the case”. In different cases under the Prevention of Electronic Crime Act, 2016 where the offences not falling under prohibitory clause of section 497 Cr.P.C, the bail after arrest has been rejected by this Court vide judgment reported as 2020 PCr.LJ 1652 as well as by the Hon’ble Lahore High Court, Lahore vide cases reported as “2018 PCr.LJ 408 and 2018 PCr.LJ 1667 and the Hon’ble Sindh High Court vide case reported as 2018 YLR 329” .

07. The instigation and distribution of child pornography is patently offensive, extremely and heinous atrociously harmful for the society. We must not normalize and ignore its far going consequences in the society and its children. The impact of child pornography on the society is remarkable and enforces the normalization of child exploitation by way of providing them safety and protection. The impact of child pornography on child is unimaginable and long term daunting consequence on the child. The president and CEO of the International Centre for Missing and Exploited Children has reported that “Each and every time an image of a child being sexually assaulted is traded, printed or downloaded from the websites, the child depicted in the photo is re-victimized”. The physical and psychological harm to these children is irreparable / incurable and those who possess and distribute these images are as complicit as who manufacture them, it is a crime that shocks the eyes and conscious which cannot be taken lightly, as there is sufficient evidence available against the accused and he has committed the crime against the humanity by exploiting the most vulnerable segment of the society, so such accused does not deserve the concession of extra ordinary relief.

08. Considering the above facts and circumstances, I am clear in my mind that the petitioner has failed to make out his case for grant of bail on the ground of further inquiry as envisaged under section 497(2) Cr.P.C, consequently, the instant bail petition stands dismissed. 09. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner. (TARIQ MEHMOOD JAHANGIRI) JUDGE

Approved for reporting.