Ali Asghar vs The State and others

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 26.08.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail on statutory ground in case registered vide FIR No. 147 dated 31.07.2018 under sections 9/10 of Prevention of Electronic Crimes Act, 2016 read with sections .419/109, P.P.C. at Police Station FIA/Cyber Crime Circle , Lahore, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he had grudge against the complainant, and due to this reason' he started false and fictitious campaign against him about desecration of Holy Quran on social media through his Facebook account titled "Ali Asghar KD" and shared multiple-posts on various dates, which provoked the general public against him and ultimately a mob encircled and attempted to set his house on fire.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case. Contends that the petitioner is behind the bars for the last more than three and half years and the conclusion of trial is not insight in near future, therefore, under the provisions of section 497, Cr.P.C., the petitioner is fully entitled for the grant of post-arrest bail on statutory ground. Contends that the delay in conclusion of the trial is not attribut able to the petitioner rather the same occasioned due to the prosecution, the pandemic of COVID and the co-accused, therefore, the petitioner deserves the concession of bail on statutory ground. Lastly contends that the co-accused of the petitioner has been granted post-arrest bail by the learned High Court, therefore, following the rule of consistency , the petitioner also deserves the same treatment to be meted out.

4. On the other hand, learned counsel for the complainant assisted by learned Law Officer defended the impugned order by contending that the petitioner has committed a heinous offence, which cannot be tolerated. Contends that delay in conclusion of trial has been occasioned due to the act of the petitioner , therefore, he cannot take the shelter of law on this ground.

5. We have heard learned counsel for the parties at some length and have perused the record with their assistance.

As per the contents of the crime report, the allegation against the petitioner is that he incited the general public against the complainant by posting fake posts on social media through his Facebook I.D about desecration of Holy Quran due to which feelings of anger and grief aroused among the public and they tried to set complainant's house on fire. However , we have noticed that although the people attempted to burn complainant's house but eventually no harm was caused to his house. The petitioner is behind the bars since 01.03.2 018 and despite lapse of more than three and half years, the conclusion of trial is not insight in near future. This Court vide order dated 04.11.2021 had requisitioned a report from the Trial Court so as to identify the reasons for the delay in conclusion of trial. The perusal of report clearly reveals that the delay occurred due to pandemic of COVID-19, law and order situation and filing of miscellaneous applications by the co-accused and by the complainant. The learned Judicial Magistrate has categorically held responsible the co-accused- of the petitioner for the delay . The report clearly shows that the delay is not attributable to the petitioner in any manner . A plain language of provis o 3 to subsection (1) of section 497, Cr.P.C. clearly reveals that in cases of non-bailable offences, which are not punishable with death where the accused has been detained for a continuous period exceeding one year and it is found that the delay in the trial has not been occasioned due to any act or omission of the accused, the Court shall direct that the accused be released on bail. This Court has time and again held that liberty of a person is one of the most Cherished attributes, perhaps more important than the other freedoms guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away without exceptional foundations. The co-accused of the petitioner , who happens to be his father , and was ascribed a somewhat similar role has been granted post-arrest bail by the learned High Court, which has not been challenged by the complainant, therefore, the petitioner is entitled for the concession of post- arrest bail on this score alone. Taking into consideration all the facts and circumstan ces stated above, we are of the view that the case of the petitioner squa rely falls within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 26.08.2021. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.

500,000/- with two sureties in the like amount to the satisfaction of learned Trial Court.