2017 P Cr. L J 1715 [Balochistan]✅

2017 P Cr. L J 1715 ✅ [Balochistan]♦️ Before Muhammad Kamran Khan Mulakhail, J MUHAMMAD AZAM DAVI---Applicant Versus The STATE through FIA---Respondent Criminal Bail Application No. 56 of 2017, decided on 9th March, 2017. (a) Prevention of Electronic Crimes Act (XL of 2016)--- ----Preamble---Scope and object of---Prevention of Electronic Crimes Act, 2016---Act was promulgated with the aim to prevent unauthorized acts with respect to information system and to provide a mechanism for investigation, prosecution, trial and international cooperation in respect of offence relating to electronic crimes. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), S. 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 16(2), 20(1), 24(c)(d)---Unauthorized use of identity information, offences against dignity of a person, cyber stalking, abetment---Bail, grant of---Further inquiry---Neither any allegation of unauthorized use of identity information was mentioned in FIR nor any question of dignity had been disclosed---FIR was silent about any stalking or still haunting and neither any watch or spy allegation followed by taking photograph or making a video had been mentioned in FIR nor any such evidence was brought on record---Allegedly accused in order to settle his personal grudge and with the object to avenge the Speaker of Provincial Assembly for his termination and denial of extension in his service was disclosing sensitive information to cause injury and harm the dignity of Speaker of Provincial Assembly therefore the question whether the alleged disclosure would fall within the ambit of terrorism or was based on personal motive would also require further probe---Whether the disclosure of co-accused implicating the accused in the case would be admissible in evidence against the accused in view of Arts. 38 & 39 of Qanun-e-Shahadat, 1984 was a question of prime importance in the case, therefore, accused's case would fall within ambit of further inquiry---Accused was not required for purpose of investigation---Bail was granted accordingly. Muhammad Aslam Chishti and Ahsan Rafiq Rana for Applicant. Shaukat Ali Rakhshani for the Complainant. Taj Muhammad, Law Officer along with Naimatullah, Investigation Officer, FIA for FIA. Muhammad Hassan Mengal, Standing Counsel for the State. Date of hearing: 1st March, 2017. ORDER MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---Through this application, the applicant seeks bail in FIR No. 02 of 2017 of Circle/Sub-Circle-NR3 FIA police station Quetta. Earlier the application filed for the same relief before the learned Sessions Judge/Vacation Judge, Quetta was dismissed vide order dated 03.02.2017. Hence, this application. 2. Facts of the case are that the complainant Zahoor Ahmed, Secretary, Balochistan Provincial Assembly lodged a complaint with FIA authorities Quetta, alleging therein that on social media i.e. Facebook page, two accounts namely, Choti Chiria and Breshna Khan are uploading/posting sensitive secret data/information of the Balochistan Provincial Assembly Quetta, that upon receipt of the complaint, inquiry Nos.27 and 62 of 2016 were registered and investigation into the matter was carried out by the FIA Quetta; that during the investigation the co-accused Bayazeed Khan son of Abdul Rehman was called to the Cyber Crimes office, who confessed the allegations by stating that he runs account Choti Chiria on Facebook and WhatsApp; that he posted the information/data in respect of estimated repairing cost of a Mercedes car of the Assembly Secretariat and minutes of the meeting of Finance Committee held on 19.02.2016 with regard to different vacancies and security issue; that later on the co-accused Bayazeed Khan unveiled that the said data was provided to him by the Ex-Secretary Azam Davi (applicant accused herein). Thus the aforesaid FIR was registered with FIA police station Quetta under sections 10(a), 16(2), 20(1), 24(c)(d) of the Prevention of Electronic Crimes Act, 2016 ("the Act"). 3. Learned counsel for the applicant/accused contended that there is no direct piece of incriminating evidence available on the surface of the record, so as to implicate the applicant/accused towards the alleged commission of crime; that the Sections inserted in the FIR do not attract in the instant case as neither any critical infrastructure information nor critical infrastructure data has been made public; that the alleged FIR has only been registered out of personal grudge and aimed at maligning the applicant's status in the society; that even otherwise the allegations contained in the FIR altogether do not make out a cognizable offence; that yet another discrimination on the part of the police authorities is floating on the surface of the record as the very person who posted the alleged information on the social media has not been arrested rather the applicant's/accused family has been dragged in the instant case with mala fide and ill intention of the complainant. He prayed that the alleged offences do not fall in the prohibitory clause of section 497(2), Cr.P.C. while the challan of the case has already been submitted and since no recovery has been effected from the possession of the applicant/accused, therefore the applicant/accused is entitled to be released on bail. 4. Learned counsel appearing on behalf of the Speaker Provincial Assembly strongly opposed the plea of bail and contended that on basis of documentary evidence followed by confession of co-accused Bayazeed Khan during inquiry, it has been established on record that the applicant/accused is involved towards commission of the crime and he in order to settle his personal scores, disclosed the secret information of the Provincial Assembly to the social media blogger; that the estimate in respect of repairing the Mercedes Benz vehicle of the Speaker of the Provincial Assembly was neither approved nor any such amount was ever spent on repairing but the accused with connivance of the co-accused has disclosed the information with intention to infringe the dignity and integrity of the Speaker; that the information uploaded on social media in respect of purported security measures of the Provincial Assembly has caused serious apprehension of damage and injury to the provincial assembly and the secretariat staff, keeping in view the threat of terrorist attacks on the government office and buildings. He therefore, urged for dismissal of the application. Learned standing counsel in attendance along with the Law Officer and Investigation Officer of the FIA adopted the arguments of the learned counsel for the Speaker Provincial Assembly. He in addition asserted that keeping in view the severity of the offence and sensitivity of the provincial assembly, the secretive information of the assembly's security has been jeopardized; that the accused/applicant was inimical towards the speaker of the provincial assembly on account of service matter and since the speaker had withdrawn the extension of service contract of the accused, therefore the minutes of the finance committee in respect of security measures of the assembly, lying with the accused/applicant for signatures, were delivered to the co-accused Bayazeed Khan just to satisfy his ego and to create panic and terror among the assembly staff. He also urged for dismissal of the application. 5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. The applicant has been charged under sections 10(a), 16(2), 20(1) and 24(c) and (d) of the Act, which has newly been promulgated and came into force on 22nd August, 2016 after receiving the assent of the President of the Islamic Republic of Pakistan on 18th of August 2016. The Act is promulgated with the aim to prevent unauthorized acts with respect to information system and to provide a mechanism for investigation, prosecution, trial and international cooperation in respect of offence relating to electronic crimes. The applicant has been charged under section 10(a) of the Act, which relates to 'Cyber Terrorism' and provides, "Whoever commits or threatens to commit any of the offences under sections 6, 7, 8 or 9, where the commission or threat is with the intent to coerce, intimidate, create a sense of fear, panic or insecurity in the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society" shall be punished with imprisonment of either description for a term which may extend to fourteen years or with fine which may extend to fifty million rupees or with both. The accused has also been charged under section 16(2) of the Act, which does not relate to any penal provision rather is in respect of preventive measures. However, subsection (1) of section 16 relates to unauthorized use of identity information and provides, "Whoever obtains, sells, possesses, transmits or uses another person's identity information without authorization shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five million rupees, or with both." While section 20(1) of the Act relates to the offences against dignity of a natural person and it is 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. The applicant/accused has also been charged under section 24(c) and (d) of the Act, which relates to 'Cyber-Stalking' and it is also punishable with imprisonment for a term which may extend to three years or with fine which may extend to one million or with both. 7. Upon perusal of the Act, it can safely be concluded that neither any allegation of unauthorized use of identity information is mentioned in the FIR nor any question of dignity under section 20(1) of the Act has so far been disclosed. Suffice is to mention that section 16(2) of the Act relates to the preventive measures and does not provide any penal provisions, therefore while adverting to section 24(c) and (d) of the Act, which relate to cyber-stalking, it has to be seen whether 'a watch or spy upon the person in a manner that results any fear of violence or serious alarm or distress in the mind of such person or taking a photograph or making video of any person and display or distribute it without his/her consent in a manner that harms a person' has been done or not. The phrasal expression 'Cyber-stalking', which provide to follow someone stealthily or waiting in ambush, but the FIR is silent about any stalking or still hunting and neither any watch or spy allegation followed by taking photograph or making a video has so far been mentioned in the FIR nor any such evidence is brought on record, therefore whether the afore-referred sections attract in the instant case or not, would be a matter, which relates to leading evidence, thus it would require further probe at this stage. 8. As far as the allegation with regard to 'Cyber-Terrorism' as defined under section 10 of the Act is concerned, it is also yet to be determined that whether the information allegedly disclosed by the applicant/accused to the social media blogger co-accused Ba-Yazeed Khan was with intent to coerce, intimidate, create a sense of fear, panic or insecurity in the government or the public or it was motivated with personal animus. Since, in the complaint submitted by the Secretary Provincial Assembly on basis whereof the FIR was lodged, it is clearly mentioned that the accused Muhammad Azam Davi in order to settle his personal grudge and with the object to avenge the Speaker of the provincial assembly for his termination and denial of extension in his service, was disclosing the secretive information to cause injury and harm the dignity of the Speaker, therefore the question as to whether the said alleged disclosure would fall within the ambit of terrorism or was based on personal motive would also require further probe. 9. It transpires that the trial court while declining the plea of bail, observed as under: "accused/applicant with the connivance of co-accused Ba-Yazeed Khan exposed/displayed sensitive data of Provincial Assembly on page of "Choti Chiria" and tried to malign the Speaker of the Provincial Assembly. The Record further reveals that the Mercedes-Benz was never repaired and an amount of Rs.2,831,369/- was not spent, rather according to quotation, it was the estimated cost of repair, but the accused/applicant has leaked a false information. No doubt, the offence under sections 16(2), 20(1), 24(c) & (d) of the Prevention of Electronic Crimes Act, 2016 do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. but it is also a well settled law that even if offence does not fall within the prohibitory clause of section 497, Cr.P.C. even then the accused/applicant cannot claim bail as a matter of right." 10. Be that as it may, but the question arises that the accused/applicant was nominated in the instant case on basis of alleged disclosure of the social media blogger namely Bayazeed Khan, which he allegedly made before the FIA personnel during the course of inquiry. Whether the disclosure of the co-accused Bayazeed Khan made before the FIA police would be admissible in evidence against the applicant/accused in view of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984, is a question of prime importance in the instant case, therefore, on this score too, the accused/applicant's case would fall within the ambit of further inquiry as envisaged under section 497(2), Cr.P.C. Thus, when the question of cyber terrorism becomes a question of further inquiry and rest of the charges leveled against the applicant/accused do not fall within the ambit of prohibition contained in section 497(1), Cr.P.C. and the applicant after having been subjected to thorough interrogation is shifted to judicial custody, meaning thereby that he is no more required for purpose of investigation, the allegation against the applicant is based upon extrajudicial confession of the social media blogger Ba-Yazeed Khan coupled with documentary evidence and, since the disclosure as well as the other documents relating to the evidence have already been made part of the record, any further detention of the applicant/accused would not serve any useful purpose. Moreover the commencement of trial let alone its conclusion is not in sight, which would also tilt the scales of justice in favour of bail not jail. In view of above observations and the tentative assessment of the evidence available on record, I am of the considered view that this is fit case calling for further inquiry within the meaning of section 497(2), Cr.P.C., therefore, this application is accepted. Consequently, the applicant Muhammad Azam Davi son of Abdullah Jan is admitted to bail in FIR No. 02 of 2017 of Circle/Sub-Circle-NR3 FIA police station Quetta subject to furnishing surety amounting to Rs.100,000/- (one hundred thousand rupees) with PR bond of like amount to the satisfaction of the trial court/Additional Registrar of this Court. Needless to observe the observations made in this order are tentative in nature and have no bearings on the merits of the case at trial. Bail granted.