2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Atta Muhammad Khaskheli has impugned order dated 04.03.2016, passed by learned Court of IV-Additional Sessions Judge, Karachi-East, whereby his earlier bail application was declined.

2. Relevant facts mentioned in FIR are that complainant Jehangir Sarwar Sahro moved application to Complaint Cell against the unknown persons in respect of blackmailing them through social medial website, i.e. linkhttp//www.facebook.com/boomboom.kotri (user name) ANTY WAIS ANTY WARIS. Such FIR was lodged and during enquiry, it was revealed that alleged Facebook account was found deactivated. Complainant is his statement has stated that he is Ex-Member of Taluka Council TMA Kotri and social person and said Facebook IDS with different names have been used by Atta Muhammad Khskhali working at Raja Communication situated at Main Liaquat road, who is blackmailing them through said IDS by uploading various pictures of the politicians with vulgar comments, hence causing mental stress, defamation.

3. Learned counsel for applicant contended that applicant is about 20 years old and student of matric and was employed in the shop of co-accused Amjad Alam and has been falsely involved in present crime by the complainant. Learned counsel further emphasized that learned trial Court has already granted bail to main-accused Amjad Alam, while case of the applicant is on better footings to his case and is entitled for release under the rule of consistency; that alleged offence is punishable upto seven years, which does not fall within the restraining clause of section 497(1), Cr.P.C.

4. Considering the above submissions, learned Standing Counsel extended no objections.

5. Heard arguments advanced by learned counsel for the parties and perused the available record which emanates that complainant has lodged instant FIR against unknown persons for blackmailing by uploading pictures of various politicians with vulgar comments. During the course of investigation, Investigating Officer has not collected any material or e-mail that applicant has caused any damage or attempted to damage with intent to alter, modify, delete, remove, generate, transmit or store any information through or in any information system knowingly that he is not authorized to do any of the foregoing. Similarly, Investigating Officer has also failed to collect any material to prima facie establish that applicant has gained or attempted to gain access to any information system with or without intent to acquire the information, whether or not he is aware of the nature or contents of such information, when he is not authorized to gain access, as aforesaid, consequently, it is for learned trial Court to record evidence of the witnesses and scan the documentary proof adduced by the prosecution to substantiate the factum of commission of fraud and forgery by misusing any electronic system or electronic device to commit or attempt to commit offence as contemplated under sections 36 and 37 of Electronic Transactions Ordinance, 2002 read with section 500, P.P.C., as per averments of FIR and Charge Sheet, allegedly applicant had been uploading picture of various politicians with vulgar comments but no material or e-mail against the complaint was available in CPU recovered from the shop of co-accused Amjad Alam Memon which may have caused any damage to complainant. It is significant to mention that main accused Amjad Alam has already granted bail vide order dated 04.03.2016 while the applicant is behind the bars for about five months. After completion of investigation, challan has been submitted and applicant is no more required for further investigation, hence his further detention will not serve any useful purpose. Offence under sections 36 and 37 Electronic Transactions Ordinance, 2002 is punishable up to 7 years, while offence under section 500, P.P.C. is punishable for 2 years or fine or with both, hence alleged offences do not fall within the ambit of restraining clause of section 497(1), Cr.P.C.

6. Considering the facts and circumstances referred supra, applicant has succeeded to make out a case for grant of post-arrest bail on the ground of further enquiry as envisaged under subsection (2) of section 497, Cr.P.C. Resultantly, applicant is admitted to post arrest bail subject to his furnishing solvent surety in sum of Rs.100,000/- (Rupees one lac only) with PR bond in the like amount to the satisfaction of the learned trial Court. The observations made supra are tentative in nature and trial Court shall decide the subject case strictly on its merits. WA/A-163/Sindh Bail granted.