PLJ 2023 Cr.C. (Note) 284
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
ABDUL REHMAN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 6069-B of 2023, deiced on 26.9.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Prevention of Electronic Crimes Act, (XL of 2016), S. 21--Bail, grant of--Allegation of--Cyber crime--Information harming reputation and privacy--These are post-arrest bail petitions and deeper appreciation of evidentiary material is not allowed at this stage--It is discernible from perusal of record that though Investigating Officer of case recovered mobile phone devices from petitioners used by them to post material on WhatsApp Messenger however, no effort was made by Investigating Officer of case for getting User Basic Subscriber Information and IP logs of each activity alongwith confirmation of account of petitioners from Meta Platforms-- The Investigating Officer did not collect any of this information--No request was sent to WhatsApp Messenger administrators to block alleged account from disseminating outrageous material--Moreover, offences under Sections 21 and 24 of Prevention of Electronic Crimes Act, 2016 do not fall within parameters of restraining clause of Section 497(1)--Code of Criminal Procedure, 1898--The prosecution is not, equipped with any evidentiary material to bring case of present petitioners within exception for refusing grant of bail to petitioners--The petitioners have been behind bars and are no more required by Federal Investigation Agency for further investigation--There is no proof available with prosecution that petitioners will either abscond or tamper with prosecution evidence--The investigation of case to extent of petitioners is complete, hence further incarceration of petitioners would serve no purpose at all--Bail allowed.
[Para 5] A, B & D
2022 SCMR 274 & 2021 SCMR 1815.
Prevention of Electronic Crimes Act, 2016 (XL of 2016)--
----Ss. 21 & 24--The offence made punishable under Section 21 of Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to five years or with fine which may extend to five million rupees or with both and offence made punishable under Section 24 of Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees--Grant of bail is a right and refusal is an exception in such like cases. [Para 5] C
2021 SCMR 1016.
Mr. Areeb Abdul Khafid, Advocate for Petitioner (in Crl. Misc. No. 6069-B of 2023).
Mr. Muhammad Imran Shehzad, Advocate for Petitioner (in Crl. Misc No. 6090-B of 2023).
Mr. Muhammad Iqbal Sargana, Assistant Attorney General for Pakistan with Tariq Mehmood Sipra, Assistant Director, FIA Multan.
Date of hearing: 26.9.2023.
Order
By way of this order, Crl. Misc. No. 6069-B of 2023, titled “Abdul Rehman vs. The State and another” and Crl. Misc. No. 6090-B of 2023, titled “Muhammad Tanveer vs. The State and another”, arising out of the same F.I.R., are being decided.
2. Through the Crl. Misc. No. 6069-B of 2023 filed under Section 497 Cr.PC, the petitioners namely Abdul Rehman Malik Seeks post arrest bail in case FIR No. 116 of 2023 dated 25.08.2023 registered in respect of offences under Sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 at the Police Station FIA Cyber Crime Reporting Centre, Multan. Through the Crl. Misc. No. 6090-B of 2023 filed under Section 497, Cr.P.C., the petitioner, namely Muhammad Tanveer seeks post-arrest bail in the same case.
3. The allegations as against the petitioners namely Abdul Rehman and Muhammad Tanveer, culled from the evidentiary material produced before the Court are that they intentionally exhibited and transmitted information harming the reputation and the privacy of Fatima Javaid the sister of the complainant of the ease and engaged in the offence of Cyber stalking.
4. I have heard the arguments of the learned counsels for the petitioners, the learned Assistant Attorney General for Pakistan and perused the record with their able assistance.
5. These are post-arrest bail petitions and deeper appreciation of the evidentiary material is not allowed at this stage. It is discernible from the perusal of the record that though the Investigating Officer of the case recovered mobile phone devices from the petitioners used by them to post the material on the WhatsApp Messenger however, no effort was made by the Investigating Officer of the case for getting the User Basic Subscriber Information and IP logs of each activity alongwith confirmation of account of the petitioners from the Meta Platforms, Inc., Menlo Park, California, United States of America (formerly known as Facebook, Inc., and The Facebook, Inc.) the company owning the WhatsApp Messenger application. No investigation was conducted so as to procure information regarding the IP address assigned to the devices of the petitioners which they had allegedly used to post the material on the WhatsApp Messenger. An internet protocol address (IP address) is a numerical label assigned to each device connected to a computer network that uses the internet protocol for communication. An IP address serves two principal functions of network interface identification and location addressing. No request was made to the Meta Platforms, Inc., Menlo Park, California, United States of America for providing the data so as to prima facie connect the petitioners with the commission of the offences. The Investigating Officer did not collect any of this information. No request was sent to the WhatsApp Messenger administrators to block the alleged account from disseminating the outrageous material. Moreover, the offences under Sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 do not fall within the parameters of the restraining clause of Section 497(1). Code of Criminal Procedure, 1898. The offence made punishable under Section 21 of the Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to five years or with fine which may extend to five million rupees or with both and the offence made punishable under Section 24 of the Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees. Grant of bail is a right and refusal is an exception in such like cases. The august Supreme Court of Pakistan in the case of “Ahmad Khalid Butt vs. The State and another” (2021 SCMR 1016) has held as under:
2. After heating the learned counsel for the parties at length and perusal of available record, it has been observed by us that the offences alleged in the FIR fall outside the prohibitory clause of Section 497, Code of Criminal Procedure, maximum punishment whereof is five years and three years respectively. The petitioner is behind the bars for the last about four months. Even as per contents of FIR he is not the principal accused. Grant of bail in such like. Cases is a rule and refusal an exception. No exceptional circumstances have been pointed out to refuse the concession of bail to the petitioner.”
The august Supreme Court of Pakistan in the case of “Ahmad Shahzad vs. The State and another” (2023 SCMR 679) has held as under:
“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.”
Reliance is also placed on the case of “Muhammad Ajmal v State and another (2022 SCMR 274) and the case of “Fakhar Zaman vs. The State” (2021 SCMR 1815) The prosecution is not, equipped with any evidentiary material to bring the case of the present petitioners within the exception for refusing grant of bail to the petitioners. The petitioners have been behind bars since 25.08.2023 and are no more required by the Federal Investigation Agency for further investigation. There is no proof available with the prosecution that the petitioners will either abscond or tamper with the prosecution evidence. The investigation of the case to the extent of the petitioners is complete, hence further incarceration of the petitioners would serve no purpose at all.
6. In view of the above discussion, the Crl. Misc. No 6069-B of 2023, titled “Abdul Rehman vs. The State and mother and Crl. Misc. No. 6090-B of 2023, titled “Muhammad Tanveer vs. The State and another” are allowed and the petitioner, namely Abdul Rehman (the petitioner in Crl. Misc. No 6069-B of 2023) and the petitioner, namely Muhammad Tanveer (the petitioner in Crl. Misc. No. 6090-B of 2023) are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs. 900,000/-(rupees nine hundred thousand only) each, with two sureties each, each in the like amount, to the satisfaction of the learned trial Court.
7. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of these particular petitions, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. Additionally, a direction is issued to the learned trial Court to conclude the trial of the case expeditiously, preferably within a period of seven months from the receipt of the certified copy of this order. It is made clear that if the petitioners or any person acting on their behalf causes delay in the conclusion of the trial or if the petitioners absent themselves from the learned trial Court or misuse the concession of bail in any manner, the learned trial Court would be at liberty to cancel their bail, in accordance with the law.
(A.A.K.) Bail allowed
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