Shahzad vs State and another
This criminal petition challenged an order of the Islamabad High Court denying post-arrest bail to the petitioner in a case involving the transmission of objectionable photographs and videos. The core legal question was whether the petitioner was entitled to bail given the circumstances of the case and the principle of consistency. The Supreme Court observed that while the petitioner was found in possession of the mobile phone, the SIM card used for the alleged transmission belonged to a co-accused who had already been granted bail. Applying the rule of consistency, the Court held that the petitioner was entitled to the same concession. Furthermore, the Court noted that the offences charged did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898, making the grant of bail the rule and refusal the exception. Consequently, the petition was converted into an appeal, and the petitioner was admitted to post-arrest bail, emphasizing that bail should generally be granted in non-prohibitory offences absent exceptional circumstances.
- Does the rule of consistency apply when a co-accused has already been granted bail in the same case?
- Is the grant of bail the rule and refusal the exception for offences falling outside the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Does the lack of a previous criminal record influence the grant of post-arrest bail in non-prohibitory offences?
- Section 21, Prevention of Electronic Crimes Act, 2016
- Section 24, Prevention of Electronic Crimes Act, 2016
- Section 109, Pakistan Penal Code, 1860
- Section 509, Pakistan Penal Code, 1860
- Section 497, Code of Criminal Procedure, 1898
ORDER
Sardar Tariq Masood, J.-- Criminal Miscellaneous Application No. 1831/2022. For reasons set out in the application for condonation of delay, the same is allowed and the delay of 63 days in filing of the petition is condoned.
Criminal Petition No. 1353/2022.
2. The petitioner has impugned the order dated 15.07.2022 of the Islamabad High Court, whereby post arrest bail was declined to him in case FIR No. 58 dated 09.05.2022 registered at Police Station FIA/CCRC, Islamabad, under Sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 read with Sections 109 and 509 of the Pakistan Penal Code, 1860.
3. Although the petitioner was nominated in the above said FIR with the specific allegation of transmitting the objectionable photographs and videos of the complainant but the record reveals that the `sim' used for the purpose of transmitting the said photographs and videos was owned by one Abid Mehmood, co-accused, and according to Abid Mehmood he forgot his `sim' at the house of Tayyab, another co-accused. Abid Mehmood and Tayyab both are brothers-in-law of the complainant. Although according to the investigation, the mobile phone in which the said objectionable photographs and videos were available, was recovered from the possession of the petitioner but according to the prosecution while transmitting the said objectionable photographs and videos the `sim' owned by Abid Mehmood was used. Bail has ' already been granted to Abid Mehmood and in that eventuality, the petitioner has become entitled to the concession of bail on the principle of rule of consistency. Even otherwise, the offences mentioned in the FIR are out of prohibition contained in Section 497 of the Code of Criminal Procedure, 1898 and in such like cases grant of bail is a rule and refusal is an exception, as laid down in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34); besides, the petitioner has no previous criminal record.
4. For the forgoing, this petition is converted into an appeal and the same is allowed. The petitioner Shehzad is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.
200,000/- (two hundred thousand only) with two sureties in the like amount to the satisfaction of the trial Court.