2024 Y L R 1008
[Lahore (Multan Bench)]
Before Sadiq Mahmud Khurram, J
Abdul Rehman---Petitioner
Versus
The State and another---Respondents
Criminal Miscellaneous Nos. 6069-B and 6090-B of 2023, decided on 26th September, 2023.
Criminal Procedure Code (V of 1898)---
----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 21 & 24---Harming a person's reputation and privacy---Post-arrest bail, grant of---Evidentiary material against the accused, deficiency of---Prohibitory clause of the S. 497(1) of the Criminal Procedure Code, 1898, not attracted---Allegations against the petitioners/accused (two in number) was that they intentionally exhibited and transmitted information harming the reputation and privacy of sister of the complainant---Validity---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---In the present case, no request was made to the concerned companies (Meta/Facebook and WhatsApp) for providing the data so as to prima facie connect the petitioners with the commission of offences or to block the alleged account from disseminating the outrageous material---Alleged offences of the Prevention of Electronic Crimes Act, 2016 did not fall within the parameters of the prohibitory clause of S. 497(1) of the Criminal Procedure Code, 1898 as the offences under Ss. 21 & 24 of the Prevention of Electronic Crimes Act 2016, apart from fine, had been made punishable with imprisonment for a term which may extend to five years and three years respectively ; and grant of bail is a right and refusal is an exception in such like cases---Prosecution was not equipped with any evidentiary material to bring the case of the petitioners within the exception for refusing grant of bail---Petitioners were behind bars since their arrest, and were no more required by the Federal Investigation Agency for further investigation---There was no proof available with the prosecution that the petitioners would either abscond or tamper with the evidence, hence further incarceration of the petitioners would serve no purpose at all---Bail was allowed to the petitioners, in circumstances.
Ahmad Khalid Butt v. The State and another 2021 SCMR 1016; Ahmad Shahzad v. The State and another 2023 SCMR 679; Muhammad Ajmal v. State and another 2023 SCMR 274 and Fakhar Zaman v. The State 2021 SCMR 1815 ref.
Areeb Abdul Khafid for Petitioner (in Criminal Miscellaneous No. 6069-B of 2023).
Muhammad Imran Shehzad for Petitioner (in Criminal Miscellaneous No. 6090-B of 2023).
Muhammad Iqbal Sargana, Assistant Attorney General for Pakistan with Tariq Mehmood Sipra, Assistant Director, FIA Multan for Respondents.
Order
SADIQ MAHMUD KHURRAM, J.---By way of this order, Crl. Misc. No.6069-B of 2023, titled "Abdul Rehman v. The State and another" and Crl. Misc. No.6090-B of 2023, titled "Muhammad Tanveer v. The State and another", arising out of the same FIR., are being decided.
2. Through the Crl. Misc. No.6069-B of 2023 field under section 497, Cr.P.C., the petitioner 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 field 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 case and engaged in the offence of Cyber stalking.
4. I have heard the arguments of the learned counsel 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 along with 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 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 connected 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 v. 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 excep-tional 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 v. The State and another" (2023 SCMR 679) has held as under:-
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