SHAHZAD ASGHAR GONDAL vs The STATE and another
This petition was filed by the petitioner, Shahzad Asghar Gondal, seeking pre-arrest bail in a criminal case involving allegations of operating an illegal gateway exchange. The core legal question was whether the petitioner was entitled to the extraordinary relief of pre-arrest bail given the nature of the allegations and the evidence collected during the investigation. The Court held that the petitioner was not entitled to pre-arrest bail, noting that he was nominated in the FIR, the investigation revealed his involvement in operating an illegal VOIP gateway exchange causing loss to the national exchequer and posing security threats, and that forensic evidence supported the prosecution's case. The Court emphasized that pre-arrest bail is an extraordinary remedy reserved for cases involving mala fide, enmity, or where no offence is prima facie established. Finding no evidence of mala fide by the investigating agency and noting that the petitioner's custodial interrogation was necessary for further recoveries, the Court dismissed the petition and recalled the ad-interim pre-arrest bail previously granted.
- Is pre-arrest bail appropriate when the accused is required for further investigation and recovery of evidence?
- Does the operation of an illegal gateway exchange constitute grounds for denying pre-arrest bail?
- Under what circumstances should a court exercise its extraordinary jurisdiction to grant pre-arrest bail?
- 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
ERUM SAJAD GULL, J.---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 and 37 of Electronic Transactions Ordinance, 2002, Section 31(1) Pakistan Telecommunication (Re-organization) Act, 1996 read with Sections 420 and 109, P.P.C., 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 laptop 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 mala fide of the FIA authority to falsely implicate the petitioner. The offences under Sections 36 and 37 of Electronic Transactions 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 v. 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 v. 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 03.07.2015, 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.