ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1722 of 2016
Applicant: Farhan Kamrani s/o. Shahid Kamrani,
Through Mr. Salahuddin Khan Gandapur, Advocate.
Respondent: The State, through Mr. Muhammad Javed K.K.,
Assistant Attorney General.
Complainant: Tahira Tariq w/o Muhammad Tariq,
Through Mr. Altamash Arab, Advocate.
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Date of hearing: 23.02.2017
Date of order: 23.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused Farhan Kamrani s/o. Shahid Kamrani seeks post-arrest bail in Crime No. 25 of 2016, registered at PS FIA Cyber Crime Circle (NR3C), Karachi under Section 21 of the Prevention of Electronic Crimes Act, 2016 (hereinafter referred to as “the Act”), read with section 419/500, P.P.C. His earlier bail application bearing No. 2364 of 2016 was heard and dismissed by the learned Sessions Judge, Karachi-East, vide order dated 26.11.2016.
2. Allegations against the applicant/accused, as per aforesaid F.I.R. lodged on 04.10.2016 by the complainant, namely, Mrs. Tahira Tariq w/o Muhammad Tariq, are that he made fake facebook ID of the complainant and superimposed her photographs from Greenwich University page onto porn videos/ photographs, which also contained abusive language, as well as he shared a link of same on the website of Greenwich University where complainant was serving as a teacher.
3. The learned counsel for the accused has mainly contended that the accused is a highly qualified person, he is PhD from Karachi University and serving as professor of Psychology, he is innocent and has falsely been implicated in this case by the complainant, who had emotional feelings for the accused and wanted to marry with him; however, since the accused was already married, he declined her proposal but latter on at her request he created facebook ID of the complainant, who in order to teach a lesson to the accused planted the alleged incriminating material/data to blackmail him and she succeeded in defaming him in Karachi University by misusing said facebook ID; that the articles allegedly recovered from the accused were neither sent for forensic report nor any forensic expert is cited as witness in the challan; that no independent witness has been associated in the case; that the alleged offence was allegedly committed in the month of March 2016 when Electronic Transactions Ordinance, 2002 was enforced and since provisions of Section 21 of the Act having no retrospective effect, the same are not applicable in this case as the Act was promulgated on 19th August, 2016, while the date of commission of alleged offence is mentioned in F.I.R. as March, 2016; that even otherwise Section 21 of the Act does not attract to the present case, rather Section 20 of the Act would attract, which carries punishment with imprisonment up to three years; as such, the same is bailable, even offence under section 21 of the Act, being punishable with imprisonment up to five years, does not come within the purview of prohibitory Clause of Section 497 Cr.P.C.; hence, the accused is entitled to bail.
4. On the other hand, learned counsel for the complainant has vehemently opposed this application for grant of bail on the ground that the accused has seriously damaged /ruined the career, modesty and prestige of the complainant by uploading her superimposed porn photographs on the internet; that the complainant is a married woman having four children and she is enjoying her married life, thus there is no reason to propose the accused to marry, so also she has no personal vendetta or malice against the accused to involve him falsely in the case, which fact is established from record that the complaint was against unknown person; that the offence alleged falls under Section 21 of the Act; that the offence of transmission was continue until the new law came into force therefore, the same is applicable in this case; that tangible physical evidence is available with the prosecution to connect the accused with the commission of alleged offence; therefore, he is not entitled to concession of bail.
5. The learned Assistant Attorney General for the State while adopting the arguments of the learned counsel for the complainant also opposed grant of bail to the accused, on the ground that the accused has maligned the honour and prestige of the complainant in the society by superimposing and uploading her porn pictures on the internet. He has also contended that the digital equipments recovered from the accused have been sent to Forensic Laboratory for forensic report and in case prosecution deems it necessary to include the name of forensic expert in the calendar of witnesses, the same shall be done in the final report / challan.
6. I have considered the arguments advanced by the learned counsel for the accused, complainant and learned Assistant Attorney General for the State as well as perused the material available on record.
7. It appears that the complainant made a complaint to F.I.A. regarding sharing link https://www.facebook.com/ نائکہ- طاہرہ – طارق Tahira-Tariq 1093551024041636/?fref=ts on Greenwich University page containing her porn pictures created by mixing her photos from Greenwich University page with porn videos/photos, which also contain abusive language. During the course of enquiry a request was sent to the facebook authorities by the F.I.A. for providing Internet Protocol (IP) address of alleged fake facebook I.D. In response, the facebook authorities provided the IPs logs i.e. 113.203.171.2016, 113.2013.198.109 and 113.203.190.166. The said IPs belonged to the M/s. Qubee; therefore, a request was made to M/s. Qubee for providing subscriber information of the said IP, and upon receiving detailed information F.I.A. officials proceeded to the house of accused and analyzed Desktop (Lenovo) PC and found incriminating material regarding alleged facebook ID of the complainant; therefore, they seized in presence of witnesses under a seizure memo (1) one broadband Modem having Mac address: 0021040053B1, (2) One PC Desktop Lenovo having 250 GB Seagate Hard Disk, Sr. 5QE52RZL and (3) one Q Mobile, and arrested the accused. Hence, prima facie prosecution has sufficient material against the accused to connect him with the commission of alleged offence.
8. As regards the argument of learned counsel for the accused, it may be observed that although the complainant made a written complaint to F.I.A. authority regarding commission of alleged offence in the month of March 2016 but when the digital / electronic equipments were seized and accused was arrested, the superimposed porn photographs of the complainant were uploaded on internet sharing the above-mentioned link on Greenwich University page on 04.10.2016, the Act had already been promulgated; hence, the prosecution has rightly charged the accused with the offence under Section 21 of the Act. It may be relevant to mention here that by virtue of sub-section (1) of Section 54 of the Act, Sections 36 and 37 of the Electronic Transactions Ordinance, 2002 (LI of 2002) have been omitted and sub-section (2) of Section 54 of the Act provides saving to the actions taken by or proceedings pending under the provisions of Ordinance 2002, repealed by sub-section (1) ibid. I am also not convinced with the arguments of learned counsel for the accused that the alleged offence falls under section 20 of the Act. For the convenience sake, the provisions of Sections 20 and 21 of the Act are reproduced, as under:-
20. Offences against dignity of natural person.--- (1) Whoever intentionally and publically exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both:
Provided that nothing under this sub-section shall apply to anything aired by a broadcast media or distribution service licensed under the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIll of 2002).
(2) Any aggrieved person or his guardian, where such person is a minor, may apply to the Authority for removal, destruction of or blocking access to such information referred to in sub-section (l) and the Authority on receipt of such application, shall forthwith pass such orders as deemed reasonable in the circumstances including an order for removal, destruction, preventing transmission of or blocking access to such information and the Authority may also direct any of its licensees to secure such information including traffic data.
21. Offences against modesty of a natural person and minor.
(1) Whoever intentionally and publically exhibits or displays or transmits any information which,----
(a) superimposes a photograph of the face of a natural person over any sexually explicit image or video; or
(b) includes a photograph or a video of a natural person in sexually explicit conduct; or
(c) intimidates a natural person with any sexual act, or any sexually explicit image or video of a natural person; or
(d) cultivates, entices, or induces a natural person to engage in a sexually explicit act,
through an information system to harm a natural person or his reputation, or to take revenge, or to create hatred or to blackmail, shall be punished with imprisonment for a term which may extend to five years or with fine which may extend to five million rupees or with both.
(2) Whoever commits an offence under sub-section (1) with respect to a minor shall be punished with imprisonment for a term which may extend to seven years and with fine which may extend to five million rupees.
Provided that in case a person who has been previously convicted of an offence under sub-section (1) with respect to a minor shall be punished with imprisonment for a term of ten years and with fine.
(3) Any aggrieved person or his guardian, where such person is a minor, may apply to the Authority for removal, destruction of or blocking access to such information referred to in sub-section (1) and the Authority, on receipt of such application, shall forthwith pass such orders as deemed reasonable in the circumstances including an order for removal, destruction, preventing transmission of or blocking access to such information and the Authority may also direct any of its licensees to secure such information including traffic data.
From the plain reading of the afore-mentioned provisions of the Act, it transpires that Section 20 of the Act provides punishment for the offences of exhibiting, displaying or transmitting intentionally and publically false information, and intimidating or harming the reputation or privacy of a natural person through any information system, while section 21 of the Act provides punishment for the offences of intentionally and publically exhibiting, displaying or transmitting any information by superimposing photographs of the face of a natural person over any sexually explicit image or video, including a photograph or a video of a natural person in sexually explicit conduct, etc. Since, it is the case of the prosecution that the accused has superimposed the photographs of the complainant from Greenwich University page onto porn photographs, the alleged offence squarely falls within ambit of Section 21 of the Act.
9. Although, the offence under section 21 of the Act does not fall within the prohibitory clause of section 497 Cr.P.C. being punishable up to five (05) years, but in such like cases the grant of bail is not a right of the accused but a concession and since the accused is prima facie involved in a case of superimposing a photograph of the face of a woman over sexually explicit image, he is not entitled to the concession of bail simply for the reason that he is connected with such offence, which seriously affect the whole society. The accused has apparently gone to grotesque lengths to humiliate the complainant online, which may cause a detrimental effect on her. It may be observed that the impact of uploading on internet the superimposed porn photographs of a woman is more than the shame and shock that one might feel when she discovers herself to be the victim of this crime. The immediate real time effect is the social stigmatization of the victim by blaming her for the pictures and questioning her character. This may lead to depression, social alienation and in some extreme cases suicide attempts by the victim who cannot handle the pressure of dealing with such targeted vengeance. Under the circumstances, the accused is not entitled to the concession of bail; therefore, this application is dismissed, accordingly.
10. Above are the reasons of my short order dated 23.02.2017, whereby the instant criminal bail application was dismissed.
JUDGE
Athar Zai