PLJ 2023 SC (Cr.C.) 203
[Appellate Jurisdiction]
Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ.
versus
STATE and another--Respondents
Crl. P. No. 1353 and C. Misc. Appln. No. 1831 of 2022,
decided on 6.12.2022.
(On appeal against the order dated 15.07.2022 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 805-B of 2022)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Prevention of Electronic Crimes Act, 2016, Ss. 21 & 24--Pakistan Penal Code, 1860, Ss. 109, 509--Co-accused granted bail--post arrest bail--grant of--Mobile phone in which the said objectionable photographs and videos were available, was recovered from the possession of the petitioner but according to the prosecution while transmitting the said objectionable photographs and videos the ‘sim’ owned by co-accused was used--Bail has already been granted to co-accused and in that eventuality, the petitioner has become entitled to the concession of bail on the principle of rule of consistency--The offences mentioned in the FIR are out of prohibition contained in Section 497 of the Code of Criminal Procedure--The petitioner is admitted to post-arrest bail.
[P. 204] A & B
PLD 1995 SC 34 ref.
Mr. Arshad Hussain Yousafzai, ASC for Petitioner.
Malik Javaid Iqbal, Addl. A.G., for State.
Ch. Zafar Ali Warraich, ASC along with Complainant in Person.
Date of hearing: 6.12.2022.
Order
Sardar Tariq Masood, J.--
Criminal Miscellaneous Application No. 1831/2022. For reasons set out in the application for condonation of delay, the same is allowed and the delay of 63 days in filing of the petition is condoned.
Criminal Petition No. 1353/2022.
2. The petitioner has impugned the order dated 15.07.2022 of the Islamabad High Court, whereby post arrest bail was declined to him in case FIR No. 58 dated 09.05.2022 registered at Police Station FIA/CCRC, Islamabad, under Sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 read with Sections 109 and 509 of the Pakistan Penal Code, 1860.
3. Although the petitioner was nominated in the above said FIR with the specific allegation of transmitting the objectionable photographs and videos of the complainant but the record reveals that the ‘sim’ used for the purpose of transmitting the said photographs and videos was owned by one Abid Mehmood, co-accused, and according to Abid Mehmood he forgot his ‘sim’ at the house of Tayyab, another co-accused. Abid Mehmood and Tayyab both are brothers-in-law of the complainant. Although according to the investigation, the mobile phone in which the said objectionable photographs and videos were available, was recovered from the possession of the petitioner but according to the prosecution while transmitting the said objectionable photographs and videos the ‘sim’ owned by Abid Mehmood was used. Bail has already been granted to Abid Mehmood and in that eventuality, the petitioner has become entitled to the concession of bail on the principle of rule of consistency. Even otherwise, the offences mentioned in the FIR are out of prohibition contained in Section 497 of the Code of Criminal Procedure, 1898 and in such like cases grant of bail is a rule and refusal is an exception, as laid down in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34); besides, the petitioner has no previous criminal record.
4. For the forgoing, this petition is converted into an appeal and the same is allowed. The petitioner Shehzad is admitted to post-arrest bail subject to his furnishing bail bond in the sum of
Rs. 200,000/- (two hundred thousand only) with two sureties in the like amount to the satisfaction of the trial Court.
(K.Q.B.) Bail granted
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