THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1087 of 2020
Cr. Bail Application No.1010 of 2020
Applicant (in Cr. Bail : Muhammad Saleem son of Ghulam
Appln. No.1087/2020) Haider, through Mr. Muhammad
Aslam Bhutta, Advocate.
Applicant (in Cr. Bail : Hassam Rabbani son of Tariq
Appln. No.1010/2020) Rabbani, through Mr. Muhammad
Ghaffar Khan Kakar, Advocate.
Respondent : The State/FIA through Chaudhry
Waseem Akhtar, Assistant Attorney General.
Complainant : Ali Faisal, Zonal Director (Enforcement)
Pakistan Telecommunication Authority
Zonal Office Wireless Compound, Opp.
JPMC, Karachi, through M/s. Shahnawaz and Ali Akbar Sahito,
Dates of hearing : 16.12.2020
Date of order : 22.12.2020
Abdul Maalik Gaddi, J. – By this common order, I intend to decide the captioned bail applications as they relate to same incident and crime.
2. Through these bail applications, applicants seek post arrest bail in Crime No.16 of 2020 registered at Police Station FIA, CCRC, Karachi, under Sections 13, 14, 16, 17, 26, PECA 2016 read with Sections 419/420/467/468/471/109, PPC. Prior to filing these bail applications, applicants approached to the trial Court for grant of same reliefs, which were declined vide orders dated 09.07.2020.
3. Brief facts of the prosecution case in nutshell are that FIA CCRC, Karachi conducted inquiry on complaint of one Ali Faisal, Zonal Director (Enforcement), Pakistan Telecommunication Authority, Karachi, against cell numbers as mentioned in complaint to be involved in illegal activities. During the course of enquiry, Muhammad Haris disclosed that he has purchased the BVS device and unregistered SIMs from alleged Hassam alias Mohsin resident Gujranwala Contract No.0300959530. He further stated that he has also sent the active SIMs to Muhammad Abbas son of Muhammad Ismail resident Adda Khaji wala Khairpur Tamewali District Bhawlpur CNIC No.3120460759953 and same SIMs were sent used for the scamming, Jeeto Pakistan, Jazz Cash, Benazir Income Support Program, etc and received payment through Jazz Cash. He is active member of different Facebook/WhatsApp group where NADRA data, CDRs, SIMs sales and purchase. He used the SIMs card of his father and as well as he transferred the payment to his father’s bank account through Jazz Cash Account. He contacted with the whole Pakistani scammers who involved in the Jeeto Pakistan, Jazz Cash, Benazir Income Support Program etc. He creates the fake Jazz Accounts on the active SIMs and same were sent to scammers. Further he/Haris stated that he used the SIM card of his father namely Muhammad Saleem also transfer the payment of his father’s bank account through fake Jazz Cash Accounts i.e. 0300-0989862. In order to nab the alleged Hassam, the subscriber information of Cell No.03009595300 has been obtained which is found to be in the name of Mariam Hassan wife of Hassam Rabbani resident of Street No.13, Mohallah Islamabad Rata Road Gujranwala Punjab. Accordingly, telephonic conversation of Muhammad with the said Hassam Rabbani alias Mohsin was tactfully arranged on which Hassam Rabbani asked Muhammad Haris to come at my school, near Khurram Dastageer Road Gujranwala Punjab. Accordingly, Muhammad Haris was taken to my school near Khurram Dastageer Road Gujranwala Punjab. On reaching there, the FIA party took the positions at different clandestine places. After some time, one persons reached there and alleged Muhammad Haris pointed out the raiding party, on which he was encircled by the members raiding party and apprehended. On spot questioning, he admitted to have indulged in the crime with Muhammad Haris and he/Hassam Rabbani admitted that he sent the BVS Zong devices and unregistered SIMs to Muhammad Haris through TCS at Kot Adu District Muzafar Garh Punjab. Further Hassam Rabbani disclosed that he used to obtain the BVS devices from one Sajid who is working at Manager at Zong Franchise situated at Model Town near goat Park Gujranwala Punjab and the Radiant mobile service Mobilink Franchise Sugar Mill Chowk Rahwali Gujranwala, (ID No.GU-7126) where he used to contact Muhammad Usman, Sale Manager of the franchise and asked him for the devices, as a result of which of which he arranged two MFS/GSM devices with SIM No.0306-6612776 IMEI No.867332031347965 and SIM No.0306-0394861 IMEI No.867332030336340 which he sent to Haris Shaikh through courier. Accordingly, (1) One Q S6_MP_24_8 having IMEI Nos 353963080536313, 353963085536318 (2) One Infinix note 7 mobile having IMEI No.354359110104132, 354359110104132 these mobiles were taken into FIA possession under proper seizure memo prepared on the spot in presence of witnesses. On conducting spot initial technical analysis of the mobile phone of alleged Hassam Rabbani some WhatsApp group are found active for sale/purchase of the illegal CDRs, Transfer of money, and also contains illegal thumb impressions, images of illicit user thumbprints and images of Jazz Cash devices are available in the alleged mobile phone. He further disclosed that the franchise had the knowledge of illegal use of BVS devices however they used to give the BVS devices in order to meet their sale targets. On conducting spot initial technical analysis of the mobile phones electronic equipments some WhatApp groups are found active for sale/purchase of illegal CDRs. He is active member of different groups who sales purchased the CDR, NADRA data. Thereafter, on the pointation of alleged Hassam Rabbani, reached Shah Communication Zong Franchise situated at Gol Park Model Town Gujranwala Punjab where one person namely Anwar was found present, who disclosed Syed Naveed Amdani is owner of this franchise. On being asked about the Sajid on which he told that Sajid is not working here as he left the job. Thereafter, all the alleged persons were brought to FIA Cyber Crime Reporting Centre Karachi. The above facts constitute the commission of offences punishable under Section 13, 14, 16, 17, 26, PECA, 2016 read with Sections 419/420/467/468/471/109, PPC. Hence, the registration of the case against (1) Muhammad Saleem son of Ghulam Haider resident of Mohallah Rao Attaullah Wala, PO Gormani, Tehsell Kot Adu District Muzafar Garh Punjab CNIC No.3230332121771 (2) Muhammad Haris son of Muhammad Saleem resident of Mohallah Rao Attaullah Wala, PO Gormani, Tehsell Kot Adu District Muzafar Garh Punjab CNIC No.3230344934753, (3) Hassam Rabbani alias Hafiz Mohsin son of Tariq Rubani resident of Street No.28, Jamal Qasmi, Data Road Gujranwala Punjab CNIC No.34101-0148672-7 and others under the approval of competent authority. The arrest of accused (1) Muhammad Saleem son of Ghulam Haider (2) Muhammad Haris son of Muhammad Saleem, (3) Hassm Rabbani alias Hafiz Mohsin son of Tariq Rubani are effected.
4. Mr. Muhammad Aslam Bhutta, learned Counsel for the applicant Muhammad Saleem contended that applicant is innocent and has been falsely implicated by the complainant with malafide intention and ulterior motives in collusion with one Alam Chandio and Farhat Shah with whom applicant Muhammad Saleem had business dispute; that the said Alam Chandio and Farhat Shah along with FIA Officials and private persons duly armed forcibly entered into applicant/accused’s house, maltreated, kidnapped and looted the articles; that son of Muhammad Saleem moved application before police station Mehmood Kot and different authorities but no action taken till today; that no private person was cited as witness of alleged incident which is violation of mandatory provision of Section 103, Cr.P.C.; that all the alleged offence mentioned in the FIR do not fall within the prohibitory clause of Section 497, Cr.P.C. Lastly he prayed for granting concession of bail to applicant. In support of his contentions, learned Counsel has relied upon the following case laws:-
(i) Basharat Hussain Shah v. The State reported as 2020 P.Cr.L.J Note 39;
(ii) Riaz Ahmed Khan v. The State (FIA) reported as 2019 P.Cr.L.J Note 33;
(iii) Zaheer Ahmed v. The State and another reported as 2018 YLR 982;
(iv) Muhammad Ehsan v. The State (FIA) reported as 2017 P.Cr.L.J 1250;
(v) Khaista Gul v. The State reported as 2018 YLR 368;
5. Mr. Muhammad Ghaffar Khan Kakar, learned Counsel for applicant Hassam Rabbani argued that applicant is innocent and has been falsely involved in this case as no any incriminating article is recovered from applicant/accused to connect him in the alleged offence; that no transit remand was obtained from near Magistrate Gujranwala which amounts to irregularity in the eyes of law; that according to Section 43 of PECA, 2016, the offences alleged in FIR are bailable, whereas, Section 467/419, PPC are not attracted in above circumstances; that applicant is in judicial custody and no more required to police for investigation. Lastly he prayed for concession of bail to applicant. In support of his contentions, learned Counsel has relied upon the case of Muhammad Azam Davi v. The State through FIA reported as 2017 P.Cr.L.J 1715.
6. Chaudhry Waseem Akhtar, learned Assistant Attorney General for Pakistan, assisted by Mr. Shahnawaz, learned Counsel for complainant, has opposed these bail applications on the ground that applicants/accused are nominated in FIR; that SIM Nos.0347-8553603 and 0345-5001378 used in commission of offence shown in complaint were in the name of Muhammad Saleem and during raid conducted at his house, it was come in knowledge that his son Muhammad Haris was using the said two SIMs and was involved in cheating/fraud with the general public in context with Jeeto Pakistan/Jazz Cash/Benazir Income Support Program etc. and he is also involved in activating SIMs for last couple of years and from the raid at his house, the FIA officials has seized four BVS devices of Zong S/n STC 0176193, MBDC 1213285, STC 0176191, STC 0178736, One Mobile having IMEI No.352207090657225 and 352207095657230, One Nokia Mobile having IMEI No.358903077399741 and 358903077309758, One Samsung China Mobile 4 Sims holder, Various Sims of Zong/Jazz, Lamination Sheet use for thumb sheets, One dell laptop having S/n DPNCFGY2100CRT, One dell laptop latitude E5510, One tube light box for fake thumbs, Thumb impression sheets, Tracing papers, One gas heater, One Vivo 1907_19 having IMEI No.863691048468914, 863691048468906 along with SIMs 03478553603 and 0312686138, One Cheque Book of MCB 0490 Kot Adu Branch in the name of Muhammad Saleem Account No.1023 6273 9100 9504 containing 07 blank leaves, One Cheque Book of UBL Village Gurmani in the name of Muhammad Saleem Account No.0112 1614 3710 4216 containing 14 blank leaves and One Toyota Corolla XLI White Model 2012, Registration No.LEA-7664, Chassis No.NZE1402129581. The said BVS devices and unregistered SIMs according to Muhammad Haris were purchased from Hassam alias Mohsin Contact No.03009595300. During investigation, FIA has also collected bank statements of applicants/accused which shows that huge transaction of money was in their accounts though they have no known source of income. During inquiry, illegal SIMs, BVS devices and other articles have been recovered from accused. He further argued that no doubt offences with which the accused would be charged do not fall within the prohibitory clause of Section 497, Cr.P.C. but Section 467, PPC provides the punishment of ten years which falls within the ambit of Section 497, Cr.P.C. The applicants/accused involved in defrauding poor public by means of electronic devices; hence, their case is not a routine but their case is exceptional, therefore, they are not entitled for concession of bail. In support of his contentions, learned Assistant Attorney General for Pakistan, assisted by learned Counsel for complainant has relied upon the case of Nasir Abbas v. The State reported as 2020 P.Cr.L.J Note 115.
7. I have heard learned Counsel for the parties at a considerable length and have gone through the case papers so made available before me.
8. It is noted that case has been challaned and present applicants/accused are no more required for investigation. As per police papers, it appears that FIR has been lodged by the complainant Ali Faisal, Zonal Director (Enforcement) Pakistan Telecommunication Authority Zonal Office Wireless Compound, Opposite JPMC, Karachi, on 12.06.2020 at 18:30 hours, but date and time of occurrence has not been mentioned in the FIR except year 2019. It appears that FIR has been lodged by complainant on the basis of Inquiry No.193 of 2020, but police papers are silent with regard to number and name of witness, who have been cheated in this alleged incident. Besides this, the whole case of prosecution is based upon the evidence of FIA officials and no private person has been shown as witness in this case in respect of memo of arrest or recovery against any of the accused. No explanation has been offered in this regard.
9. It is argued by learned Counsel for the applicant Hassam Rabbani that nothing was recovered from the possession of Hassam Rabbani and he has been arrested on the basis of statement of co-accused, which cannot be accepted as gospel truth. When this aspect of the case was confronted to learned Assistant Attorney General, assisted by learned Counsel for complainant, they have no satisfactory answer with them. I have noticed that whole case of the prosecution is based upon the evidence of FIA officials and when the whole case of prosecution is based upon the evidence of FIA officials, therefore, their evidence are required to be minutely scrutinized at the time of trial whether the incident has been taken place as stated in FIR or otherwise.
10. I have also noticed that all the offences of Prevention of Electronic Crime Act, 2016 shown in FIR and charge sheet either are bailable or their punishments do not fall within the prohibitory clause of Section 497, Cr.P.C. except Section 467, PPC. It is settled principle of law that when an accused is charged under two different provisions and two different statutes for the offences which are alike of similar in nature then the case will be proceeded against him under statute, which provides lesser punishment for the offences alleged to have been committed by him. In this respect the reliance is placed upon the case of Muhammad Younus v. The State reported as 2001 P.Cr.L.J 157, therefore, applicants/accused in this case has been trailed under the provision of Prevention of Electronic Crime Act, 2016 which provides lesser sentence, therefore, case of applicants/accused qua the offences under provisions of Penal Code requires further inquiry.
11. As observed above, all the prosecution witnesses are the FIA officials and case is based upon documentary evidence, if any, therefore, no question does arise for its tampering at the hands of applicants/accused. Co-accused namely, Muhammad Abbas Ismail son of Muhammad Ismail, almost more or less on the basis of same allegations, has been granted bail by the trial Court vide order dated 21.07.2020, therefore, following the rule of consistency, the present applicants are also entitled for same treatment. Nothing on record that present applicants are previously convicted or they remained indulge in such type of activities in past. On perusal of police file, it also reveals that at present, there is no direct evidence against the applicants, therefore, merely arguing by learned Counsel for the complainant that recovery was effected from applicant Muhammad Saleem does not ipso facto connect him in this case, until and unless some independent evidence is brought on record, which is lacking in this case. Under these circumstances, further detention of applicants in jail would not serve the purpose.
12. In view of what has been discussed above I have come to the conclusion that case of the applicants/accused comes within the ambit of Section 497(2), Cr.P.C., which requires further probe, therefore, I accordingly, enlarge the applicants on bail subject to their furnishing solvent surety in the sum of Rs.500,000/- [Rupees Five Lac only] each and P.R. bond in the like amount to the satisfaction of the trial Court.
13. As observed above, it is a case of alleged cheating/fraud, therefore, I am sanguine that learned Presiding Officer of trial Court shall conclude the trial expeditiously and decide the matter as early as possible, preferably within sixty (60) working days, after receipt of copy of this order, in accordance with law and no unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II. Office is directed to immediately send copy of this order to trial Court through any swift means for information and compliance.
14. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits.
15. Before parting with the order, I would like to make it clear that during proceedings if applicants/accused misuse the concession of bail, then trial Court would be competent to cancel the bail of applicants/accused without making any reference to this Court.
Faizan A. Rathore/PA*