PLJ 2023 Cr.C. 575
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
SHERAZ AHMAD, etc--Petitioners
versus
STATE etc.--Respondents
Crl. Rev. No. 69407 of 2022, decided on 9.12.2022.
Criminal Procedure Code, 1898 (V of 1898)--
---S. 435--Prevention of Electronic Crimes Act, (XL of 2016), Ss. 11 & 28--Pakistan Penal Code, (XLV of 1860), Ss. 295-A, 295-B, 295-C, 298-C, 34, 109--WhatsApp group shared the translation of the Holy Quran--Section 235(2) and Section 4(c) of the, Cr.P.C.--Revision Petition--Application filed by the petitioners for not charge sheeting them for the offences of the Pakistan Penal Code as declined--Section 11 of the Prevention of Electronic Crimes Act, 2016 (hereinafter referred to as PECA, 2016) read with Section 295-A, 295-B, 295-C, 298-C, 34, 109 of the Pakistan Penal Code, 1860--Allegations against the petitioners are that they, by using their WhatsApp group “Sindh Salamat,” shared the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal--The petitioners outraged the religious feelings of Muslim Citizens of Pakistan to advance sectarian hatred among them--Section 235(2) and Section 4(c) of the, Cr.P.C. says that charge contains more than one head--The person accused of them may be charged with and tried at one trial for, each of such offences--Section 28 of PECA, 2016 provided the provisions of the Pakistan Penal Code, 1860 to the extent not inconsistent with anything provided in this Act, shall apply to the offences provided in this Act.”--If the allegations were placed before two Courts through separate reports u/S. 173 of Cr.P.C., there would be a possibility of conflicting decisions--Instant petition being devoid of any force, stands dismissed.
[Pp. 576, 577, 580 & 581] A, B, C, D, E, F
2022 PCr.LJ 203; PLD 2022 Lahore 700; PLD 2022 Lahore 700 ref.
Sh. Usman Karim-ud-Din, Advocate for Petitioners.
Mr. Asad Ali Bajwa, Deputy Attorney General and Muhammad Latif, Assistant Attorney General with Naveed S.I/F.I.A. for State.
Mian Shakeel Ahmad, AAG and Syed Abul Ali Jaffari, AAG.
Rana Ahsan Aziz, Addl. Prosecutor General.
Nemo for Complainant.
Date of hearing: 9.12.2022.
Judgment
This revision petition is directed against the order 08.10.2022 passed by the learned Addl. Sessions Judge, Lahore, whereby the application filed by the petitioners for not charge sheeting them for the offences of the Pakistan Penal Code was declined.
2. Briefly, the facts of the case are that the petitioners were facing the trial in case FIR No. C-88 dated 20.06.2019, registered under Section 11 of The Prevention of Electronic Crimes Act, 2016 (hereinafter referred to as PECA, 2016) read with Sections 295-A,
295-B, 295-C, 298-C, 34, 109 of The Pakistan Penal Code, 1860. During the pendency of the trial, the petitioners moved the applications for not charge sheeting them for the offences of the Pakistan Penal Code, in view of the order passed by this Court in Crl. Misc. No. 44216-B/2021 titled “Sheraz Khan. vs. The State, etc.” reported as 2022 P.Cr.L.J 203. The learned trial Court, relied on the judgment passed by the Division Bench of this Court in Crl. Appeal No. 206/2021, titled “ANF. vs. Muhammad Faizan and two others,” reported as PLD 2022 Lahore 700 and dismissed the petitioner‟s application. Hence, this criminal revision.
3. I have heard the arguments advanced by both sides and have also minutely gone through the record made available.
4. From the record, it reveals that Petitioners No. 1 & 2 were booked for offences under Section 11 of PECA, 2016 read with Sections 295-A, 295-B, 295-C, 298-C, 34, 109, PPC in case FIR No. C-88/2019, registered on 20.06.2019 by the police of police station Cyber Crime Reporting Centre. From the contents of the report under Section 173 of Cr.P.C., the allegations against the petitioners are that they, by using their WhatsApp group “Sindh Salamat,” shared the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal. By doing this act maliciously, the petitioners outraged the religious feelings of Muslim Citizens of Pakistan to advance sectarian hatred among them. The petitioners were booked for committing offences under Section 11 of PECA, 2016, read with Sections 295-A, 295-B, 295-C, 298-C, 34, 109, PPC. For reference, Section 11 of The Prevention of Electronic Crimes Act, 2016 is reproduced as under:
11-Hate speech: Whoever prepares or disseminates information, through any information system or device, that advances or is likely to advance interfaith, sectarian, or racial hatred shall be punished with imprisonment for a term which may extend to seven years or with a fine or with both.
The ingredients for an offence under Section 11 of PECA, 2016 are that the accused has prepared or disseminated information that advanced or is likely to advance interfaith, sectarian, or racial hatred and the accused disseminated information through any information system or device. The offences under Sections 295-A, 295-B, 295-C & 298-C, PPC are reproduced hereunder for ready reference:
295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: -
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [the citizens of Pakistan], by words, either spoken or written, or by visible representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [ten years], or with fine, or with both.
295-B. Defiling, etc., of copy of Holy Quran:-
Whoever willfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
295-C. Use of Derogatory remarks, etc., in respect of the Holy Prophet:-
Whoever by words, either spoken or written, or by visible representation, or by an imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:-
Any person of the Quadiani group or the Lahori group (who call themselves „Ahmadis‟ or by any other name) who, directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
The purpose of the Prevention of Electronic Crimes Act 2016 is to provide new investigative powers hitherto unavailable such as search and seizure of digital forensic evidence using technological means, production orders for electronic evidence, electronic evidence preservation orders, partial disclosure of traffic data, real-time collection of data under certain circumstances and other enabling powers which are necessary to investigate cyber-crime cases effectively, etc. The Prevention of Electronic Crimes Act, 2016 has been promulgated to prevent unauthorized acts with respect to information systems and to provide mechanisms for related offences as well as procedures for investigation, prosecution, trial, and international cooperation with respect thereof and for matters connected therewith or ancillary thereto. The Federal Government of Pakistan under Section 29 of PECA, 2016 read with Section 51 of the PECA, 2016 notified the Prevention of Electronic Crimes Investigation Rules, 2018 to carry out the purpose of PECA 2016. Section 51 of PECA 2016 is hereby reproduced: -
“The Federal Government may, by notification in the official Gazzate, establish or designate a law enforcement agency as the investigation agency for the purposes of investigation of offences under this Act.”
Rule 2 of the Prevention of Electronic Crimes Investigation Rules, 2018 defines “Investigating Agency” means the Federal Investigating Agency established under the Federal Investigation Agency Act, 1974 (VIII of 1975). Whereas Section 1 (ix) of PECA, 2016 defines “Court” means the Court of competent jurisdiction designated under PECA, 2016. The rules framed by the Federal Government under Section 29 of PECA, 2016 read with Section 51 of the PECA, 2016 reveal that the Courts dealing with the cases of the Federal Investigating Agency will deal with the matters. Unless any other expression is used in this act, the rule made thereunder but not defined in this act shall have the same meaning assigned to the expressions in the Pakistan Penal Code, 1860. Section 2(2) of the Prevention of Electronic Crimes Act, 2016 reads as under: -
2. Definitions:
(1) ---------
(2) Unless the context provides otherwise, any other expression used in this Act or rules made thereunder but not defined in this Act shall have the same meanings assigned to the expressions in the Pakistan Penal Code, 1860 (Act XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898) and the Qanoon-e-Shahadat, 1984 (P.O. No. X of 1984), as the case may be.
Section 4 (c) of the Code of Criminal Procedure, 1898, includes any head of the charge when the charge contains more heads than one, which is hereby reproduced as under:-
“Charge”.---”Charge” includes any head of charge when the charge contains more heads than one.
Section 235(1) of the Code of Criminal Procedure, 1898 provided that:
Trial for more than one offence:
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.”
Section 235(2) of the Code of Criminal Procedure, 1898, provided that:
(2) Offence falling within two definitions:
If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for; each of such offences.
The argument of the learned counsel for the petitioners is that the offence falling under Section 11 of PECA, 2016 is to be tried by Court established under Section 44(1) of PECA 2016. Offences falling under Sections 295-A, 295-B, 295-C & 298-C, PPC are to be tried by the ordinary Court as both offences fall within the jurisdiction of two separate Courts established under special law and general law. The short controversy for decision in the present case is whether the offences falling under Section 11 of PECA, 2016 and the offences falling under Sections 295-A, 295-B, 295-C & 298-C, PPC can be tried together or not. It was specifically mentioned in Section 235(2) and Section 4(c) of the, Cr.P.C. says that charge contains more than one head and that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for, each of such offences. Moreover, Section 235 of the Code speaks of more offences than one committed in the course of the same transaction. As per the allegations leveled in the crime report, the alleged acts constitute offences falling under Section 11 of PECA, 2016, and the offences falling under Sections 295-A, 295-B, 295-C & 298-C, PPC. The ingredients of Section 11 of PECA, 2016, and under Sections 295-A, 295-B, 295-C & 298-C, PPC are interlinked, supplementing each other and they are not inconsistent inter-se. Section 28 of PECA, 2016 provided that:
“The provisions of the Pakistan Penal Code, 1860 to the extent not inconsistent with anything provided in this Act, shall apply to the offences provided in this Act.”
Section 50 of The Prevention of Electronic Crimes Act, 2016 signifies the jurisdiction related to the other laws. Section 50 of The Prevention of Electronic Crimes Act, 2016 reads as under: -
50. Relation of the Act with other laws.--(1) The provisions of this Act shall have effect not in derogation of the Pakistan Penal Code, 1860 (Act XLV of 1860), the Code of Criminal Procedure, 1898 (Act V of 1898), the Qanoon-e-Shahadat, 1984 (P.O. No. X of 1984), the Protection of Pakistan Act, 2014 (X of 2014) and the Investigation for Fair Trial Act, 2013 (I of 2013)
(2) Subject to sub-section (1), the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law on the subject for the time being in force.
So, the offences under Section 11 of PECA, 2016, and Sections 295-A, 295-B, 295-C & 298-C of the Pakistan Penal Code, 1860 cannot be tried separately because the offences falling under Section 11 of PECA, 2016, and under Sections 295-A, 295-B, 295-C & 298-C, PPC are interlinked. There is a clear distinction between the “same transaction” and “a similar transaction”. (Bold and underline for emphasis). The continuity of action is not in the sense that one act follows the other without any connection but in the sense of an
intimate connection between the different acts. Accused persons committing offences of the same kind but separately may not be regarded as having committed those offences in the course of the same transaction. The series of acts which constitutes a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. The fact of the matter is that the Court established under PECA 2016 is designated to adjudge the offence of hate speech under Section 11 of PECA 2016. I have already mentioned above that the allegations have given rise to different offences committed by the petitioners in the same transaction and in this manner, they cannot be separated. Similarly, the same set of persons was proposed to stand as witnesses along with common documents, like FIR, recovery memos, statements of PWs recorded under Section 161 of Cr.P.C., etc., to prove the charge of using Whatsapp group by the petitioners and sharing the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal. If the allegations were placed before two Courts through separate reports under Section 173 of Cr.P.C., there would be a possibility of conflicting decisions. Above all, it would put in peril both sides for undergoing the ordeal of separate trials regarding the same transaction and would frustrate spirit of Sections 4(c) and 235-A of Cr.P.C. This view has been taken by the learned Division Bench of this Court, which has been reported as “A.N.F. vs. Muhammad Faizan and 2 others” (PLD 2022 Lahore 700).
5. Given the above, learned counsel for the petitioners has failed to point out any illegality or irregularity in the impugned order passed by the learned trial Court, which would justify interference by this Court. A resultant, instant petition being devoid of any force, stands dismissed.
(A.A.K.) Petition dismissed
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