ZAHID KAMAL vs STATE
The petitioner sought post-arrest bail in a case involving alleged illegal voice termination activities, registered under the Pakistan Telecommunication (Re-organization) Act, 1996, the Electronic Transactions Ordinance, 2002, and the Pakistan Penal Code, 1860. The core legal question was whether the petitioner was entitled to bail given the procedural irregularities in the search and the nature of the alleged offences. The Peshawar High Court held that the petitioner was entitled to bail, noting that the failure of the police to associate 'elders of the locality' during the search violated both the judicial magistrate's warrant conditions and Section 103 of the Code of Criminal Procedure, 1898, rendering the case one of further inquiry. Furthermore, the Court observed that the offences charged did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. The Court affirmed the principle that where an offence is punishable with fine only, refusing bail could lead to double jeopardy in violation of Article 13 of the Constitution of Pakistan, 1973, and that for offences carrying sentences of ten years or less, bail is the rule and refusal the exception.
- Does the failure to associate 'elders of the locality' during a search warrant execution violate Section 103 of the Code of Criminal Procedure, 1898?
- Is an accused entitled to bail as a matter of right if the offence charged is punishable by fine only?
- Does the refusal of bail for an offence punishable by fine only constitute double jeopardy under Article 13 of the Constitution of Pakistan, 1973?
- Is the grant of bail the rule and refusal the exception for offences carrying a punishment of ten years or less?
- Section 31, Pakistan Telecommunication (Re-organization) Act, 1996
- Section 36, Electronic Transactions Ordinance, 2002
- Section 37, Electronic Transactions Ordinance, 2002
- Section 419, Pakistan Penal Code, 1860
- Section 420, Pakistan Penal Code, 1860
- Section 103, Code of Criminal Procedure, 1898
- Article 13(a), Constitution of Pakistan, 1973
- Section 403, Code of Criminal Procedure, 1898
- Section 497(1), Code of Criminal Procedure, 1898
' The petitioner seeks post arrest bail in case FIR No, 13/2014 dated 14.12.2014, registered u/S. 31 PTA Act, 1996 r/w 36/37 ETO 2002, RANT 419/420, PPC, at P.S FIA/NR3C, Peshawar.
2. Briefly stated, the facts of the case are that the. FIA authorities conducted raid on a house situated at Kohat, on a complaint of PTA regarding suspected illegal Gateway where present petitioner was intercepted. On search different incriminating articles/equipments/devices used in illegal voice terminations as well as Mobile SIMs were recovered for which petitioner failed to offer any plausible reply for possessing the same. It was also transpired that petitioner used fictitious name of Kamran Majeed for installing PTCL connection at his home. Hence he was arrested and a case vide FIR mentioned above was registered against him.
' Arguments heard record perused.
3. Perusal of record reveals that for Conducting raid at the concerned house, a search warrant was issued by the learned Judicial Magistrate-VI, Kohat, with the direction that during search proceedings Lady constable alongwith 'elders of locality' should also accompany with Inspector Shahid Ilyas who shall ensure the sanctity of Chadar and Char Dewari but despite that no elder of the locality was associated by the concerned Officer during raid conducted on the house of petitioner which is not only violation of order of the Court as well as violation of provisions of Section 103, Cr.P.C., but also shows mala fide on the part of complainant/prosecution, making the case of petitioner that of further inquiry.
4. So far as Section 419, PPC is concerned, applicability of the same would be determined at trial after recording prosecution evidence as at present no. CNIC in the name of Kamran Majeed has been recovered from possession of petitioner which was allegedly used for installation of PTCL connection.
5. Section 420, PPC is bailable while applicability of Sections 36/37 ETO, 2002 could be seen at the trial as to whether the petitioner has violated the privacy of information or attempted to do any act with intent to impair the operation or prevent or hinder access, to any information contained in any information system which are the essential ingredients of Sections 36 & 37 ETO, 2002. Besides, both the Sections of law carry punishment upto 7 years or fine and as per settled law when an offence is also punishable with fine only, then accused is entitled to bail as of right because if at trial he was sentenced with fine only, then as under-trial prisoner refusal of bail would amount to a case of double jeopardy which is in contravention of Article 13(a) of the Constitution and also embodied the provision of maxim nemo debt bis vexari pro eadem causa (No person should be twice disturbed for the same cause) as well as Section 403, Cr.P.C. Because at the end of day, if accused was sentenced with fine alone, then it would not be possible to compensate him for his detention in judicial lockup during trial.
6. The punishment for offence u/S. 31 of PTA 1996 is also less than 10 years and does not come within the ambit of prohibitory clause of Section 497(1), Cr.P.C., so the offences which carries punishment upto 10 years or less than that, grant of bail is a rule and refusal is an exception.
Besides, petitioner has made no confession before the competent Court which could connect him with the commission of a non-bailable offence. He is behind the bar since his arrest and no more required for further investigation as investigation in the case is complete so keeping him behind the bar would serve no useful purpose.
7. In view of what has been observed above, this petition is allowed and petitioner is admitted to bail subject to furnishing bail bond to the tune of Rs, 5,00,000/- (Five Lac) with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local, reliable and men of means.
' The above are reasons of my short order of even date.