2017 P Cr. L J Note 233 ✅

2017 P Cr. L J Note 233 ♦️ [Lahore] Before Shahid Hameed Dar, J MUHAMMAD FAHIM UL ISLAM---Petitioner Versus The STATE and another---Respondents Crl. Misc. No. 377-B of 2016, decided on 16th February, 2016. Criminal Procedure Code (V of 1898)--- ----Ss. 498/497---Penal Code (XLV of 1860), Ss. 420 & 109---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Cheating and dishonestly inducing delivery of property; abetment---Violation of privacy information; damage to information system---Bail before arrest, refusal of---Accused had admitted that he had opened the fake Facebook account in question, in the name of the complainant's daughter---Accused, through said account, had sent dozens of indecent and threatening massages to the complainant's daughter---Accused, by way of said massages, had also demanded naked pictures, and in case of refusal, he had extended dire threats---Forensic analysis of the digital media, having been taken into possession by the police, had sufficiently disclosed that the internet connection (used in commission of the offences) was in the name of father of the accused---Case fell within the mischief of Ss. 36 & 37 of Electronic Transactions Ordinance, 2002, which were non-bailable in nature---Scope of bail before arrest was narrow, and same became still narrower when such allegations as faced by the accused were backed by adequate incriminating material---Accused had been found involved in the case in the Challan submitted before the Trial Court---High Court observed that cyber crimes of like nature had fast-gripped the society and misdirected youth, who went on a rampage without any fear of reprisals---Epidemic, like such cyber crimes, had to be drastically checked before the same turned unmanageable---Bail application was dismissed accordingly. [Paras. 4 & 5 of the judgment] Pir Muhammad Masood Chishti for Petitioner along with Petitioner. Malik Faiz Rasool Rajwana, Standing Counsel with Irfan Bhatti, SI, FIA for the State. Ch. Ishtiaq Ahmad for the Complainant. ORDER SHAHID HAMEED DAR, J.---The allegation against the petitioner, Faheem-ul-Islam, as per FIR. No.108/15, dated 2.11.2015, under sections 36 and 37 of the Electronic Transactions Ordinance, 2002 read with sections 420, 109, P.P.C., registered at police Cyber Crime Circle, NR3C, Lahore, is that he created a fake facebook ID of Major (R) Yousaf Hassan Islam's (complainant) daughter "Amna Yousaf' at URL https://www.facebook.com/amna yousaf 182?fref-ts and uploaded her personal pictures; he sent threatening messages of dire consequences, in case she did not send her nude pictures and he also used abusive language against her in messages, that he transmitted to her facebook account; a technical report was ascertained, which revealed that the accused had made the activity time and again through the IP address of PTCL between 13.04.2015 to June, 2015; he used the telephone connection of his father, namely Tanveer-ul-Islam, which was installed at his house, situated in Mustafa Town, Lahore; the digital media was taken into possession by the FIA through a seizure memo; it transpired during investigation that the PTCL connection of his father was constantly being used by him (petitioner) by having created the said fake account of Amna Yousaf, who, once was his class fellow; during forensic examination of identity-item, it revealed that login tokens were used to penetrate the said facebook profile; he admitted his guilt during the course of investigation and contended that the PTCL connection was in his father's name. 2. Learned counsel for the petitioner has submitted that petitioner opened the face book account in question on 16.06.2011 when he was merely 15 years of age and the complainant's daughter was his class-fellow then; the disputed face book account remained silent for years till it was put into operation by the complainant's daughter on 27.05.2014; the petitioner never transmitted any offensive message to Mst. Amna Yousaf and allegation in this regard is baseless; the petitioner did not upload any picture of the allegedly affected person, nor he ever demanded her nude pictures so as to upload it on any fake account; the petitioner who occasionally replied to the frequent calls made by the complainants' daughter and he never did it so on his own; the offences under sections 36 and 37 of the Electronic Transactions Ordinance, 2002 are not made out against the petitioner; lastly submits that the petitioner has been falsely involved in this case due to malice and ulterior motives of the complainant, therefore, he may be granted the relief prayed for. 3. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application on the ground that the petitioner candidly admitted during the course of investigation to have himself opened a fake face book account in the name of young daughter of the complainant and transmitted highly offensive and provocative messages to her by using the said account; the petitioner not only uploaded personal pictures of the complainant's daughter on the fake account but he shamelessly demanded her nude pictures from her by extending threats, if she didn't supply it, he would ruin her; the complainant's daughter only replied twice to unlawful activity of the petitioner and entreated him to close the fake face book account and bring an end to his unlawful activity; the petitioner's unlawful act has not only upset peaceful life of a young girl but also that of the family she came from; the offence committed by him squarely falls within the ambit of sections 36, 37 of the Electronic Transactions Ordinance, 2002, therefore his plea for bail may not be entertained. 4. After hearing the learned counsel for the parties and perusing the record, it is observed that opening of a fake facebook account, as alleged in the FIR, stands admitted by the accused/petitioner, who not only rendered an alike assertion during the course of inquiry and the investigation but also before the court through his learned counsel. It was opened in the name of Amna Yousaf, real daughter of the complainant, by the accused/petitioner on 16.06.2011 being her class fellow in City School, Gulberg Lahore, when they were good intimate friends, is an argument of his learned counsel, who believed that facebook account-in-issue had been left unused by the petitioner for years and it was the complainant's daughter herself, who activated it when she sent a mail to the petitioner on 27.5.2014. His learned counsel submitted a voluminous transcript of the messages, available on the said facebook with the contention that the accused had not signalled a single filthy message to Rabia Yousaf, nor he misused facebook profile of Amna Yousaf. On the contrary, learned counsel for the complainant has also submitted a collection of messages, allegedly transmitted by the accused to the complainant's daughter with the contention that majority of them had been filthily drafted. The entire record was carefully gone into and it transpired that dozens of indecent and threatening messages had been sent by the accused to Rabia Yousaf, another daughter of the complainant, by using fake facebook profile of Amna Yousaf. In many a messages, he demanded stark naked pictures of Amna Yousaf and on refusal, he extended dire threats of displaying her pictures, that he had arranged on his own, to the masses. The record further shows that he fixed a deadline for provision of nude pictures, by pressing it hard that non-fulfilment of his demand would be ruinous for Amna Yousaf. In some of the messages the language used is so dirty and exploitative that it may only have come from a sex-maniac or an inveterate black-mailer. The complainant certainly took a bold step of reporting the matter to the police and he must have thought thousands of time before doing it so, as it involved the question of honour of his youthful daughter and that of his family as a whole. 5. It has been noted with concern that cyber-crimes of alike nature have fast gripped the society and misdirected youths went on a rampage without any fear of reprisals. They could not be allowed to stretch their dirty claws onto innocent girls. The epidemic-like spread of this sort of cyber-crime has to be drastically checked before it turned unmanageable. The forensic analysis of the digital media, having been taken into possession by the FIA, sufficiently disclosed that the internet connection was got installed in the name of Tanveer-ul-Islam, the father of the petitioner, which was being allegedly misused by his obscenity-starved son. The offence allegedly committed by him apparently falls within the mischief of sections 36 and 37 of the Electronic Transactions Ordinance, 2002, which are non-bailable in nature. The relief of bail before arrest is meant only for the innocent and not to the characters, like the petitioner is. The scope of bail before arrest is narrow and it becomes still narrower when such an allegation, as faced by the accused, is backed by adequate incriminating material. Having been found involved in the occurrence, the petitioner's name is placed in column No.3 of the challan, which stood submitted before the trial court on 25.1.2016. This is a case, which falls miles apart from the objection of any malice or mala fides of the complainant or that of the police. 5(sic.) The discussion supra makes it a case of denial to the bail plea of the accused. Dismissed. The interim anticipatory bail already granted to the petitioner on 13.1.2016 is recalled. Bail declined.