JAVED-UR-REHMAN vs THE STATE and another
This matter concerns a petition for post-arrest bail filed by the accused, Javed-ur-Rehman, who was charged under the Prevention of Electronic Crimes Ordinance, 2007 and the Electronic Transactions Ordinance, 2002, following allegations of defrauding the complainant through a fake lottery scheme involving electronic communications. The core legal question was whether the allegations, even if accepted as true, constituted offences under the cited electronic crimes legislation, thereby justifying the petitioner's continued detention. The court held that the allegations, which involved simple fraud and misrepresentation, did not satisfy the essential ingredients of the electronic crimes statutes, as there was no evidence of illegal access to documents or destruction of information systems. Consequently, the court found the petitioner's case to be one of further inquiry and granted the bail petition. The key principle laid down is that where the facts alleged in an F.I.R. do not prima facie constitute the specific offences under the invoked special electronic crimes laws, the case qualifies for further inquiry, entitling the accused to the concession of bail.
- Does the mere use of email to commit fraud constitute an offence under the Prevention of Electronic Crimes Ordinance, 2007?
- When does a criminal case qualify as one of 'further inquiry' for the purpose of granting bail?
- Can bail be granted when the allegations in an F.I.R. do not prima facie fall within the ambit of the special laws invoked?
- Section 7, Prevention of Electronic Crimes Ordinance, 2007
- Section 8, Prevention of Electronic Crimes Ordinance, 2007
- Section 9, Prevention of Electronic Crimes Ordinance, 2007
- Section 15, Prevention of Electronic Crimes Ordinance, 2007
- Section 19, Prevention of Electronic Crimes Ordinance, 2007
- Section 20, Prevention of Electronic Crimes Ordinance, 2007
- Section 36, Electronic Transactions Ordinance, 2002
- Section 37, Electronic Transactions Ordinance, 2002
RIAZ AHMAD KHAN, J.---Javed-ur-Rehman seeks post-arrest bail in case F.I.R. No.11 of 2009, dated 1- 4-2009, under sections 7,8,9,15,19,20 of The Prevention of Electronic Crimes Ordinance, 2007 read with sections 36, 37 of Electronic Transactions Ordinance, 2002, Police Station F.I.A. Cybre Crime Circle, Rawalpindi.
2. Brief facts as per F.I.R. Are that the complainant Janas Khan received an e-mail message sent by one Hanson Torence, through which he was informed that he had won lottery amounting to 1.3 Million US Dollars. The complainant was asked by a group on the basis of a fake letter to pay 7.5% of the total amount of lottery. The complainant accordingly transferred an amount of Rs.1,83,000 into the name of Miss Maryam Faqir, holder of an account in CRES Bank Islamabad, then transferred another amount of Rs.1,399,125 in the bank account maintained by the petitioner Javed-ur- Rehman in Faysal Bank, Blue Area Branch, Islamabad, again paid in cash US$ 20,000 to one Jon Cosmos, again sent 815.20 UK Pounds to one Hanson Terrence, UK through Western Union, then sent an amount of 2700 US Dollars to Hanson Terrence, UK through Western Union. On receiving the complaint, enquiry' was conducted and it transpired that account of Miss Maryam Fariq was being operated by Javed-ur-Rehman and she did not know anything about any transactions made in her account. Javed-ur-Rehman got signed blank cheques from Miss Maryam Faqir for the operation of her account. As a result, F.I.R. Was registered.
3. Learned counsel for the petitioner contended that the case has been registered with mala fide intention, as the petitioner has not committed the offence in which he has been charged. Learned counsel for the petitioner further contended that the case of the petitioner is one of further enquiry and the petitioner is entitled to the concession of bail.
4. On the other hand, learned standing counsel assisted by Assistant Director (Legal), FIA contended that the complainant has been defrauded and huge amount was embezzled by the petitioner.
5. I have heard learned counsel for the parties and have also perused the record.
6. In the present case, even if the allegations levelled in the F.I.R. Are admitted to be correct, no case under Prevention of Electronic Crimes Ordinance, 2007 or Electronic Transactions Ordinance, 2002 is made out. The only allegation against petitioner is that an e-mail message was sent to the complainant and then an agreement between complainant and two other accused was executed.
Even if this allegation is accepted, it would not mean that the petitioner had made illegal access to documents, record, or had destroyed the information system of any service provider. In fact, the alleged offence is not relating to telecommunication laws. On the face of it, it can be said that this is a case of simple fraud and misrepresentation. The accused has not been charged under relevant sections of laws. Even under the alleged sections of laws, the whole amount was not sent to the petitioner and the allegation that the amount was actually sent under misconception would require evidence, as such, the case of the petitioner is one of further enquiry. In the circumstances, this bail petition is accepted. The petitioner be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with two local sureties in the like amount to the satisfaction of learned trial Court.