SHAHZAD ASGHAR GONDAL vs STATE & another
This is a criminal petition filed by Shahzad Asghar Gondal seeking pre-arrest bail in case FIR No. 76 dated 16.10.2014, registered under Sections 36 and 37 of the Electronic Transaction Ordinance, 2002, Section 31(1) of the Pakistan Telecommunication (Re-organization) Act, 1996, and Sections 420 and 109 of the Pakistan Penal Code 1860, relating to the operation of an illegal gateway exchange. The core legal question revolves around whether the petitioner is entitled to pre-arrest bail for operating an illegal VoIP exchange causing national exchequer loss and security threats. The Lahore High Court dismissed the petition and recalled the ad-interim pre-arrest bail, holding that the petitioner was directly nominated, forensic evidence linked his laptop to illegal VoIP operations, no mala fide was established against the investigating agency, and his custodial interrogation was necessary. The court laid down the principle that pre-arrest bail is an extraordinary remedy granted only in cases of established enmity, mala fide, or clear absence of an offence, and cannot be used to bypass normal investigation.
- Is an offence under Sections 36 and 37 of the Electronic Transaction Ordinance, 2002 bailable?
- Whether pre-arrest bail can be granted when an accused absconds during a raid and forensic evidence connects him to the crime?
- What are the essential grounds required for the grant of pre-arrest bail under criminal law?
- Section 36, Electronic Transactions Ordinance 2002
- Section 37, Electronic Transactions Ordinance 2002
- Section 31(1), Pakistan Telecommunication (Re-organization) Act 1996
- Section 420, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
ORDER
' Through this petition, Shahzad Asghar Gondal- petitioner seeks his pre-arrest bail in case F.I.R.No. 76, dated 16.10.2014, under Sections 36 & 37 of Electronic Transaction Ordinance, 2002, Section 31(1)Pakistan Telecommunication (Re-organization)Act, 1996 read with Sections 420 & 109, PPC, registered at Police Station Cyber Crime Circle, NRBC, Lahore.
2. The allegation against the petitioner is that he was operating an illegal gateway exchange installed by him.
3. Arguments heard. Record perused.
4. The petitioner is nominated in the FIR. There is no delay in the registration of the FIR and it is mentioned in the FIR that the Zonal ' Director Pakistan Tele-Communication Authority (PTA) lodged a complaint on 14.10.2014 and after fulfilling all the legal requirements FIR was registered. The Federal Investigation Agency after getting search warrants from the competent Court conducted a raid on the house of the petitioner. Lap-top of the petitioner was taken into possession through a recovery memo. Duly signed by the father of the petitioner, as the petitioner absconded when he saw the raiding party. It is admitted that the Laptop taken into possession by the FIA belongs to the petitioner. The Hard Disk of the said lap-top was sent to the Forensic Science Laboratory from where it was declared that the said Hard Disk was used for operating the business of illegal VOIP (Voice over internet protocol).
5. It was held during investigation that the petitioner was guilty of operating an illegal gateway exchange, causing loss to the Government exchequer and creating serious security threats, because communication via unknown routes could not be tapped or monitored by security intelligence agencies.
6. There is no malafide of the FIA authority to falsely implicate the petitioner. The offences under Sections 36 & 37 of Electronic Transaction Ordinance, 2002 are not bailable. Petitioner is required for further investigation. Granting pre-arrest bail to the petitioner would mean that accused is exempted from joining investigation and by not joining investigation prosecution case may suffer for want of further recoveries. Reliance is placed upon `Sarwar Sultan versus The State and another'
(PLD 1994 Supreme Court 133). Pre-arrest bail is granted only when a case is based on enmity, mala fide or when no offence is proved to have been committed. No case has been made out for this Court to use its extra ordinary jurisdiction by granting pre-arrest bail and diverting the normal course of law. Reliance is placed upon 'Malik Aqeel versus The State' (2011 SCM R 170).
7. For what has been discussed above, this petition is dismissed and the ad-interim pre-arrest bail already granted to petitioner on 3.7.2015, is recalled. However, it is made clear that the above findings are tentative in nature and shall have no bearing on the trial of the case.