2014 P Cr. L J 1464
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
MUSTAFA ALI ---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.145 of 2014, decided on 23rd May, 2014.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss.36 & 37--- Penal Code (XLV of
1860), Ss.420, 506, 507 & 509---Violation of privacy of information, damage to information
system, cheating, criminal intimidation and gesture or act intended to insult modesty of a
woman ---Bail, grant of ---Further inquiry ---Alternate sentence ---Case not falling under
prohibitory clause of S.497, Cr.P.C.---Accused had been in custody since 28- 3-2014,
investigation was completed and report under S.173, Cr.P.C. had be en submitted before
competent Court of law for trial ---Effect ---One of the factors for detaining accused, being
necessity of custodial interrogation did not subsist anymore ---Offences under Ss.420, 506, 507 &
509, P.P.C. did not fall within the purview of prohibitory clause as contained in S.497(1), Cr.P.C.
and grant of bail in such like cases was a rule and refusal was an exception ---One of the alternate
sentences under Ss.36 & 37 of Electronic Transactions Ordinance, 2002, was fine only ---Bail
was allowed in circumstances.
Tariq Bashir v. The State PLD 1995 SC 34 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497--- Bail---Alternate sentence ---Principle ---When two alternate punishments of
imprisonment or fine have been provided, in such like cases, bail has to be granted to accused on
the principle that when two statutes provide two punishments then for the purpose of bail, lesser
one is considered---Whether Trial Court after conclusion of trial inflicts sentence of
imprisonment or fine, it is the sole discretion of Trial Court and the same cannot be ascertained
at bail stage ---Such fact alone makes case of accused as one of further inquiry as to which
punishment is to be inflicted.
Chaudhry Mumtaz Yousaf for Applicant.
Shabir Shah, Standing counsel along with Khayyam Gul, S.- I., FIA for the State.
Date of hearing: 24th April, 2014.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Applicant, Mustafa Ali son of Sharafat
Ali, seeks post -arrest bail in case F.I.R. No.1 of 2014 dated 28th March, 2014, under sections 36,
37(1) of the Electronic Transactions Ordinance, 2002 (the "Ordinance of 2002"), read with
sections 420, 506, 507 and 509 of the Pakistan Penal Code, 1860 (P.P.C.), registered at Federal
Investigation Agency (FIA) Polic e Station, Quetta.
2. Brief facts, as per F.I.R., are that initially on 21st May, 2013, an inquiry was registered at
FIA, NRSC, Rawalpindi on the complaint of one Javeria Maqbool, daughter of Muhammad
Maqbool, resident of G -6/1-4, Street No.88, House No.259- C, Islamabad, who alleged that some
unknown person had created fake facebook ID in her name (Javeria Maqbool). That the said
person/unknown accused had used her profile/details, uploaded her photographs and had also
been sending her obscene and threate ning messages, thereby causing threats and harm to her
reputation. As the IP addresses of the activities carried out through fake facebook profile were
found to have been formed and operated from Quetta according to the record provided by
Facebook Inc., Ca lifornia, USA, therefore, the inquiry was transferred to NRSC Quetta for
further legal action. During inquiry, it transpired that user IP addresses 203.135.38.205 assigned
to fake facebook ID was used by phone No.081 -2870066 installed at House No.204. Bloc k-D
Jinnah Town, Quetta, which was found office of a Non- Governmental Organization (NGO).
Further inquiry revealed that fake facebook profile of the complainant was created and used by
the forenamed accused/applicant, who is Manager Programme Development i n the said NGO
and an ex -University -fellow of the complainant. Therefore, after obtaining search warrant of the
premises, raid was conducted by the FIA personnel in supervision of principal investigator
Muhammad Tariq. During search of his cabin- cum-office , laptop (HP), modem, PTCL Evo
(Wingle), mobile phone and other incriminating material was seized, on his pointation, for
further handing over to the Forensic Laboratory, NRSC, Quetta for the purpose of digital
evidence recovery.
3. Chaudhry Mumtaz Yousa f, learned counsel for the applicant contended that there is delay
in lodging of F.I.R., which has not been explained by the prosecution; that the provisions of
sections 420, 506, 507 and 509 of the P.P.C. do not fall within the ambit of prohibitory clause of
section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.), while sections 36 and 37(1) of
the Ordinance of 2002 are bailable in nature; that the applicant was arrested on 28th March, 2014
and since then he has been in custody; that the documents re lied upon by the prosecution are yet
to stand the test of scrutiny and cross -examination; that there are two punishments provided for
the offence i.e. imprisonment or fine, which makes the case as one of further inquiry for the
purpose of bail.
4. On the contrary, Mr. Shabir Shah, learned Standing Counsel, while defending the bail
refusing order dated 9th April, 2014, passed by the learned Additional Sessions Judge -III,
Quetta, submitted that the applicant has admitted his guilt about creating a fake face book ID in
the name of complainant Javeria Maqbool by unauthorisedly using her profile and posting her
photographs and also sending her obscene and threatening messages before the concerned
learned Judicial Magistrate, while recording his judicial confession; that there are tangible pieces
of evidence available on record to establish the complicity of the applicant with the commission
of the alleged offence, thus, he is not entitled for the concession of bail.
5. Considering the arguments advanced by the learned counsel for the parties and looking at
the facts and circumstances of the case, I have noted that the applicant is, in custody since 28th
March, 2014. The investigation has been completed and report under section 173 of the Cr.P.C.
has been submitt ed before the competent Court of law for trial and, therefore, one of the factors
for detaining the applicant, being the necessity of custodial interrogation, does not subsist any
more.
6. It is admitted feature of the case that the offences under sectio ns 420, 506, 507 and 509 of
the P.P.C. do not fall within the purview of prohibitory clause as contained in subsection (1) of
section 497 of the Cr.P.C. and grant of bail in such like cases is a rule and refusal is an exception
as has been held by honourable Supreme Court of Pakistan in the case of Tariq Bashir v. The
State (PLD 1995 SC 34), whereas under sections 36 and 37 of the Ordinance of 2002, one of the
alternative sentences i.e. fine only is also provided, which read as under: --
"36. Violation of privacy of information.---Any person who gains or attempts to gain
access to any information system with or without intent to acquire the information contained
therein or to gain knowledge of such information, whether or not he is aware of the nature or
contents of such information, when he is not authorised to gain access, as aforesaid, shall be
guilty of an offence under this Ordinance punishable with either description of a term not
exceeding seven years, or fine which may extend to one million rupees, or with both."
"37. Damage to information system, etc. ---(1) Any person who does or attempts to do any
act with intent to alter, modify, delete, remove, generate, transmit or store any information
through or in any information system knowingly that he i s not authorised to do any of the
foregoing, shall be guilty of an offence under this Ordinance.
(2) Any person who does or attempts to do any act with intent to impair the operation of or
prevent or hinder access to, any information contained in any inf ormation system, knowingly
that he is not authorised to do any of the forgoing, shall be guilty of an offence under this
Ordinance.
(3) The offences under subsections (1) and (2) of this section will be punishable with either
description of a term not ex ceeding seven years or fine which may extend to one million rupees,
or with both."
7. Undisputedly, the aforementioned sections of law levelled in the F.I.R. provide two
alternate punishments of imprisonment of seven years or fine or both. In such like cases, bail has
to be granted to the accused/applicant on the principle that when a statute provides two
punishments then for the purpose of bail, the lesser one is considered. Whether the trial Court,
after conclusion of the trial, inflicts sentence of imprisonment or fine, it is the sole discretion of
the trial Court and the same cannot be ascertained at this stage and this fact alone makes case o f
the applicant as one of further inquiry as to which punishment is to be inflicted.
8. I, therefore, accept this bail application and allow the accused/applicant bail, subject to
furnishing bail bond in the sum of Rs.5,00,000 (Rupees five hundred thousa nd only) with one
surety and PR bond of the like amount to the satisfaction of the trial Court/Additional Registrar
of this Court. However, it is clarified here that the above observations are tentative in nature and
meant only for the disposal of the matt er in hand, there shall have no bearing at all on anybody's
case at trial.
These are the reasons of my short order dated 24th April, 2014, announced in the open
Court.
MH/49/Bal. Bail allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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