Muhammad Zafeer Siddiqui vs The State
This matter arises from a bail application filed by Muhammad Zafeer Siddiqui against the State in respect of Crime No. 16 of 2016 registered at P.S. FIA Cybercrimes, Karachi under Sections 16, 20, 21, and 24 of the Prevention of Electronic Crimes Act, 2016. The core legal question concerns the legality of the arrest and challan of the accused without obtaining the mandatory independent forensic report required under Section 40 of the Prevention of Electronic Crimes Act, 2016, and whether the offences fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. The Sindh High Court held that the investigating agency acted improperly by making an arrest and submitting a challan without the requisite forensic report, noting that the offences largely do not fall within the prohibitory clause. Consequently, the court granted post-arrest bail to the applicant subject to surety, and directed a report regarding the training and competency of cybercrime investigators. The key principle laid down is that arrest and prosecution under the Prevention of Electronic Crimes Act, 2016 without fulfilling statutory prerequisites such as obtaining a mandatory forensic report under Section 40 vitiates the justification for keeping an accused behind bars, favouring the grant of bail.
- Whether bail can be granted when the investigating agency fails to obtain the mandatory forensic report required under Section 40 of the Prevention of Electronic Crimes Act, 2016?
- Do offences under Sections 16, 20, 21 and 24 of the Prevention of Electronic Crimes Act, 2016 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Can an accused be arrested and challaned without the foundational statutory prerequisites being fulfilled by the investigating agency?
- Section 40, Prevention of Electronic Crimes Act 2016
- Section 16, Prevention of Electronic Crimes Act 2016
- Section 20, Prevention of Electronic Crimes Act 2016
- Section 21, Prevention of Electronic Crimes Act 2016
- Section 24, Prevention of Electronic Crimes Act 2016
- Section 497, Code of Criminal Procedure 1898
ORDER
1. Instant case is infested with the illegalities and infirmities committed by the investigating agency, that itself took the responsibility of investigation as well as arrest of the accused without having required forensic report mandated under Section 40 of the Prevention of Electronic Crimes Act, 2016 (PECA, 2016). Learned counsel states that the offences under Sections 16, 20, 21 and 24 of PECA 2016 do not fall within prohibitory clause of Section 497 Cr.P.C rather are bailable except under Section 21, which essentially requires public exhibition, display or transmission of information. I.O is unable to satisfy that why in the absence of requisite independent forensic report accused was not only challaned as well as arrested, who is behind the bars from last 2 months, who per learned counsel, is a student of BS.
2. In the circumstances at hand, bail is granted to the applicant namely Muhammad Zafeer Siddiqui S/o Rashid Ali subject to his furnishing solvent surety in the sum of Rs.20,000/- with PR bond in the like amount to the satisfaction of the Nazir of trial Court, in Crime No.16 of 2023 registered with P.S FIA Cybercrimes, Karachi under Sections 16, 20, 21 and 24 of PECA, 2016.
3. Let report be called from the Director Cyber Crimes, Karachi as to the competency and training of the inspectors, sub-inspectors in cybercrimes to their understanding of the legal aspects of the cybercrimes, who to be presented in person on the date given hereunder with the report.
4. To come up on 04.08.2023.