PLJ 2024 Cr.C. (Note) 128
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
GHULAM JAFFIR--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 7726-B of 2023, decided on 8.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Prevention of Electronic Crimes Act, (XL of 2016), Ss. 20, 21 & 24--No prohibitory clause--Internet protocol address (IP address)--Post arrest bail--Grant of--No investigation was conducted so as to procure information regarding the IP address assigned to the device of the petitioner which he had allegedly used to post the material on the Whatsapp Messenger--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--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--Grant of bail is a right and refusal is an exception in such like cases--The prosecution is not equipped with any evidentiary material to bring the case of the present petitioner within the exception for refusing grant of bail to the petitioner--Petitioner is admitted to post-arrest bail--A direction is issued to the Trial Court to conclude the trial.
[Para 4] A, C, D, E
2021 SCMR 1016; 2023 SCMR 679; 2022 SCMR 274;
2021 SCMR 1815 ref.
Internet Protocol Address (IP Address)--
----An internet protocol address (IP address) is numerical label assigned to each device connected to a computer network that uses the internet protocol for communication--An I.P 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 petitioner with the commission of the offences. [Para 4] B
Mr. Imran Abbas Kazmi, Advocate for Petitioner.
Ms. Sidra Shamim, Advocate for Complainant/Respondent
No. 2.
Rao Iftikhar Liaquat, Assistant Attorney General for Pakistan with Muhammad Shoaib Riaz, Assistant Director, FIA Multan.
Date of hearing: 8.11.2023.
Order
Through the instant petition filed under Section 497 of the Code of Criminal Procedure, 1898 the petitioner namely Ghulam Jaffir seeks post arrest bail in case F.I.R No. 130 of 2023 dated 108.09.2023 registered in respect of offences under Sections 20,21 and 24 of the Prevention of Electronic Crimes Act, 2016 at the police station FIA Cyber Crime Reporting Centre, Multan.
2. The allegations as against the petitioner namely Ghulam Jaffir, culled from the evidentiary material produced before the Court are that he intentionally exhibited and transmitted information harming the reputation and the privacy of Farzana Anwar, the complainant of the case and engaged in the offence of Cyber stalking and also insulted the modesty of the complainant.
3. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the complainant of the case, the Learned Assistant Attorney General for Pakistan and perused the record with their able assistance.
4. This is a post-arrest bail 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 the mobile phone device from the petitioner used by him 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 petitioner 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 device of the petitioner which he 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 I.P 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 petitioner 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 20, 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 20 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 or with both and 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 or with both 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 hearing 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 petitioner within the exception for refusing grant of bail to The petitioner. The petitioner has been behind bars since 08.09.2023 and is no more required by the Federal Investigation Agency for further investigation. There is no proof available with the prosecution that the petitioner will either abscond or tamper with the prosecution evidence. The investigation of the case to the extent of the petitioner is complete, hence further incarceration of the petitioner would serve no purpose at all.
5. For the foregoing reasons, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,100,000/-(rupees one million and one hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, 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 petitioner expeditiously, preferably Within a period of eight months from the receipt of the certified copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial or if the petitioner absents himself from the learned trial Court or if the petitioner misuses the concession of bail in any manner the learned trial Court would also be at liberty to cancel his bail, in accordance with the law.
(K.Q.B.) Petition accepted
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