P L D 2026 Islamabad 35 (PLP)

KHADIM HUSSAIN SOOMRO, J.

Through this CM, application seeks bail in section 21 of the PECA, 2016, which was subsequently added/incorporated in the FIR.

2. Learned counsel for the applicant/petitioner submitted that the applicant was granted post-arrest bail by this Hon'ble Court vide order dated 16.07.2025. At the time of his arrest, only sections 375-A, 292-A, and 292-C of the Pakistan Penal Code were attributed to him. This legal position, as evident from the remand request submitted by the Investigating Officer, remained unchanged until the petitioner was sent to judicial custody. It was only after the grant of bail that Section 21 of the Prevention of Electronic Crimes Act, 2016 (the Act) was incorporated in the final report submitted under Section 173, Cr.P.C. The learned counsel emphasized that the addition of Section 21, the Act, post-bail, without prior intimation to the Court or the petitioner, amounts to a material change in circumstances which were not considered at the time of the grant of bail, and therefore raises serious concerns of procedural propriety and prejudice to the applicant's rights.

3. Conversely, learned Deputy District Public Prosecutor submitted that investigation is an evolving process, and Section 21 of the Act, was added later based on additional evidence, including forensic analysis. The prosecution is not legally bound to seek prior permission or give separate notice for adding further sections, as the same is reflected in the final report under Section 173, Cr.P.C. It was further submitted that having access to the record, the petitioner ought to have remained vigilant. If the petitioner feels aggrieved, the proper course is to approach the trial court, not to question the validity of the earlier bail.

4. I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.

5. The core issue in the present application is whether the petitioner, who was granted post-arrest bail by this Court, could legally be denied release by the jail authorities on the ground that Section 21 of the Prevention of Electronic Crimes Act, 2016 (the Act) was added.

6. The record reflects that the petitioner was initially granted post-arrest bail in respect of Sections 375-A, 292-A and 292-C, P.P.C., a graver offence, on the ground that he fell within the purview of Section 6(iii) of the Juvenile Justice System Act, 2018.

7. It is also a matter of grave concern while arguing the bail application before the learned Trial Court. It was neither pointed out by the Prosecutor nor the I.O., who had all the police papers with him to inform the learned Trial Court about the addition of section 21 the Act. It is a matter of greatest astonishment that report under section 173, Cr.P.C. was submitted on 29.04.2025. The perusal of the order dated 03.06.2025 demonstrates that the learned Trial Court did not take prima facie cognizance of section 21 of the Act, despite the petitioner is kept in confinement. Subsequently, the learned Trial Court did not make any observation regarding Section 21 ibid. Despite the bail order being in the field, the jail authorities refused to release the petitioner solely on the basis of the newly added offence. Moreover, the principle is well established that when an Investigating Officer adds a new offence after submission of the report under Section 173, Cr.P.C., the accused cannot be re-arrested without the order of the Court, first cancelling the bail already granted. If such a practice, where an accused already granted bail is re-arrested solely on the basis of newly added offences without obtaining prior judicial cancellation of bail, is allowed to prevail, it would seriously undermine the rule of law and erode public confidence in the judicial system. It would effectively vest arbitrary and unchecked power in the hands of the police, enabling them to bypass judicial oversight and detain individuals at will, contrary to constitutional guarantees of liberty and due process. This could open the door to widespread abuse, including political victimisation, harassment of vulnerable individuals, and manipulation of criminal proceedings, thereby leading to a breakdown of legal safeguards and creating a climate of fear, injustice, and institutional lawlessness in society.

8. The paramountcy of judicial orders must be preserved. Once a competent Court grants bail after considering the merits of the case, the said bail order cannot be rendered ineffective merely on account of administrative or police action, unless the prosecution seeks cancellation of bail through appropriate judicial recourse. If such a practice is allowed and continued, where police or jail authorities override judicial decisions without first seeking cancellation of bail through due judicial process, it would set a dangerous and destabilizing precedent that threatens the constitutional order. Allowing executive functionaries to nullify judicial orders at their discretion would render the safeguards enshrined in Article 4 of the Constitution, which ensures that every citizen shall be dealt with in accordance with law, wholly illusory. If this practice is continued unchecked, it will inevitably lead to arbitrary arrests, unlawful detentions, and the normalization of executive overreach, where law enforcement assumes the roles of judge and jury. Over time, such disregard for judicial authority will severely undermine public confidence in the courts, disturb the institutional balance of power, and corrode the foundational principles of due process, justice, and the rule of law. The continued perpetuation of this practice would mark a dangerous shift away from constitutional governance toward a system where individual liberties are at the mercy of unregulated state power.

9. Furthermore, it is pertinent to underscore that even in situations where an offence initially registered under Section 324, P.P.C. is subsequently converted into one under Section 302, P.P.C. due to the death of the victim, it is not permissible for the police or jail authorities to re-arrest or detain the accused without first obtaining appropriate orders from the competent court. The proper legal course in such circumstances requires the prosecution to move an application for cancellation of bail or for amendment of the charge, thereby enabling the trial court to issue notice to the accused, inform him of the addition of the new offence, and afford him an opportunity to be heard. Any deviation from this process would amount to a violation of due process as enshrined in Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 and undermine the sanctity of judicial orders.

10. In the present case, the refusal by the jail authorities to release the petitioner, despite a valid bail order passed by this Court and in the absence of any contrary direction from a competent court, amounts to unlawful and unjustified detention. The jail authorities possess no independent power under the Jail Manual or any statutory framework to disregard or override a judicial order. Their conduct in continuing the petitioner's confinement, notwithstanding the bail granted, not only exceeds their lawful authority but also constitutes a flagrant violation of the petitioner's fundamental right to liberty guaranteed under the Constitution. Such arbitrary action is patently illegal and cannot be sustained under any settled principle of law. The petitioner, if so advised, shall be at liberty to institute appropriate civil proceedings for damages against the jail authorities for their unlawful act and abuse of authority.

11. In view of the foregoing discussion, the continued detention of the petitioner by the jail authorities, in the absence of any judicial sanction, is declared to be without lawful authority and of no legal effect. Accordingly, this application is allowed. The jail authorities are directed to release the petitioner forthwith, unless he is required to be detained in any other case strictly in accordance with law.

12. However, it is clarified that this Court has not expressed any opinion on the merits of the newly added offences. The question as to whether the addition of Section 21 of the Prevention of Electronic Crimes Act, 2016 (PECA) is legally sustainable, and whether any further legal consequences flow therefrom, shall be determined by the learned trial court strictly in accordance with law, after providing due opportunity of hearing to all parties concerned, including the accused. MH/148/Isl. Order accordingly.