Faisal Malhi Versus State

Order

Muhammad Tariq Nadeem, J .--- Through this petition, filed under Section 497 Cr.P.C, Faisal Malhi, petitioner herein, seeks admission to post arrest bail; in a criminal case registered against him vide FIR No.104 dated 20.05.2021 with Police Station Cyber Crime/FIA Faisalabad under Sections 20, 21 and 24 of the Prevention of Electronic Crimes Act, 2016 on the complaint of Usman Sajjad.

2. Contentions heard. Record perused.

3. Precisely the allegation against the petitioner, as per FIR, is that he was sending nude and objectionable pictures of sister of the complainant namely Sabina Sajjad to his facebook I.D and he was also threatening her to send nude pictures and objectionable data to other family members. He was also harassing and blackmailing her and forcing sexual relations. Afterwards the matter was reported to FIA and a raiding team was accordingly constituted and he was caught red handed and on his personal search, cellphone, a Vivo 1901 bearing IMEI Nos. 86256404728 7711 and 86256404728 7703 recovered from his possession. On spot analysis of mobile phone, objectionable pictures/videos related to the complainant were recovered.

4. This is petition for post-arrest bail and only tentative assessment is to be made and deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible. However, it divulges from record that the cell phone was not actually owned by the petitioner. Though the investigating officer has tried to establish that the sim was used in the cell phone recovered at the instance of the petitioner but it is noted from record that no independent witness was joined into recovery proceedings of said cell phone. No other evidence is available on record. In the backdrop of above facts, the evidentiary value of the said recovery as well as involvement of the petitioner in the instant case would be adjudged by the learned trial court seized with the power after recording evidence. Moreover, the entire evidence, so far collected by the FIA authorities is based upon documentary evidence, which is already in the possession of the prosecution and there is no likelihood of tampering with the same by the accused/petitioner. Reliance is placed on the case titled "Sared Ahmad v. The State" (1996 SCMR 1132). Record further reveals that victim is the ex-wife of the petitioner and she has obtained and ex-parte decree for dissolution of marriage. Even otherwise, the identity created on social media is in the name of "Ch. Faisal Malhi URL https:/www. facebook.com/fasi.malhi" Faisal Mallhi "URL Https://www.facebook.com/ chfaisal shifaisal 739, the actual usage of the social media on Faceoook/whatsapp, by the petitioner is a question of evidence which can only be done at the trial stage, hence the case against the petitioner is also one of further inquiry as contemplated in subsection (2) of Section 497 of the Code of Criminal Procedure, 1898.

5. Moreover, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance is placed on case reported as "Haji Muhammad Nazir v. The State" (2008 SCMR 807). Even otherwise the offence allegedly committed by the petitioner carries maximum punishment of five years and three years respectively, hence do not fall within the prohibitory clause of section 497 Cr.P.C. and in such like cases bail is a rule and refusal is an exception as laid down by the Hon'ble Supreme Court in the case of "Tariq Bashir and 5 others v. The State" (PLD 1995 SC 34). "Muhammad Danial Farrukah Ansari v. The State" (2021 SCMR 557) "Ahmad Khalid Butt v. The State and another" (2021 SCMR 1016). The exceptions mentioned in supra case, are not available in the present case as the petitioner has no previous criminal record. The petitioner is behind the bars since his arrest. The investigation to the extent of present petitioner is completed and he is no more required to the police for further investigation, as report under Section 173 Cr.P.C has been filed. No useful purpose would be served by keeping the petitioner behind the bars for indefinite period.

6. Consequently, this petition is allowed and the petitioner Faisal Malhi is enlarged on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees five lac) with one surety in the like amount to the satisfaction of the learned trial court.

7. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.

UN/F-15/L Petition allowed.