ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No.1261 of 2009
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Date Order with signature of Judge
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FOR HEARING.
Mr. Shoukat H. Zubedi Advocate for the applicant/ accused.
Mr. Shahab Sarki DAG.
-.-.-.-.-.-.-.
Through this bail application, applicant/ accused Mohammad Ilyas has sought bail in crime No.10/2009 registered at FIA Crime Cricle, Karachi, under sections 4/7/8/9/11/165/19 P.E.C.O 2007 read with 31(1) of PTC (Re-Org) Act, 1996. Earlier the applicant/ accused moved a bail Application before the learned Trial Court, which was dismissed vide order dated 12.11.2009.
The facts of the prosecution case as narrated in the FIR are as under:-
"Pakistan Telecommunication Authority is body corporate established under Pakistan Telecommunication (re-organization) Act, 1998 to regulate the establishment, operation and maintenance of telecommunication services in Pakistan.
PTA Zonal office Karachi has received a complaint No.2-47 (vigilance) PTA/09, dated 12th August 2009 from Director (vigilance) Pakistan Telecommunication Authority Headquarters, Islamabad, via email dated 12th August 2009 by Director (enforcement) wherein it has been stated that the analysis of ZONG mobile CDRs has shown that 48 post paid connections are suspected to be involved in illegal voice termination.
The undersigned believes that in view of the record it is established that the suspected persons are indulged in crime of illegal voice termination without obtaining license from complainant and it is a prima facie case of violation of section 31-1 of Pakistan Telecommunication (reorganization) Act 1996, section 3, 37 of ETO and prevention of Electronic Crimes Ordinance 2007.
It is therefore requested that necessary investigation be carried out and legal action may be taken against the person/ persons who are involved in crime terminating international voice traffic/ GREY traffic and save government of Pakistan for further loss of revenue.
The team of PTA will be available for any assistance required by FIA round the clock. An early action will be highly appreciated.
On receipt of above complaint, an enquiry No.52/2009 was registered, consequent upon which it was revealed that one Mohammad Ilyas son of Allah Rakha visits the franchise of Zong Mobile at Kharadar, Karachi and makes heavy payments of different mobile phones, which lead to believe that he is the person who is using the mobile phones of Zong for illegal voice termination as mentioned by the complainant in his complaint. Accordingly, the sources were deployed with the directions to inform the undersigned as and when the said suspect visits the franchise of Zong at Kharadar viz M/s Aliya Communication, office D-R-5/18-16, 10-E, 1-74/G-A, main Tower, opposite Habib Metropolitan Bank, Karachi. Today i.e 27.10.2009, information was received from the sources that the said suspect is to visit the said franchise of Zong. According, I alongwith the staff members of FIA, Cyber Crime Circle, Karachi and PTA officers namely Mr. Abdul Batin, Zonal Director, Mr. Ali Waqas Raza, Assistant Director, Syed Muhammad Hassan, Assistant Engineer, rushed to the Franchise of Zong viz Aliya Communication and intercepted the said suspect. Upon enquiry he voluntarily admitted to have been running illegal gate way exchange at his house situated at 64/II, 11th Commercial Street, Phase-IV, DHA Karachi. Accordingly, the raiding party took him to his residence. The raiding party of FIA and the PTA were taken inside the house by the said Mohammad Ilyas son of Allah Rakha were after he (applicant/ accused) pointed out the illegal gate way exchange in active condition in a surreptitious place i.e in a bathroom situated at first floor of the house which was closed from all sides with walls and plaster however, there was a narrow entrance made through a drawer like door and the bathroom was only accessible by crawling. Mr. Mohammad Ali Syed, Principle Investigator, Mr. Amjad Ali Abbasi both of FIA and Mr. Ali Waqas Raza assistant Director, and Mr. Syed Munawar Hassan Assistant Engineer, both of PTA were asked to enter the bathroom and to ascertain whether there is any illegal gate way exchange in active condition. On which they entered the bath room and found the illegal gate way exchange in active condition. The above officers have recorded the above proceedings in a video movie. The above officials unplugged the power cables and brought the equipment in an open place. Accused Mohammad Ilyas son of Allah Rakha was questioned on the spot to produce any permission from the competent Authority for running such gateway exchange, on which he could not give any plausible reply. Accordingly, the equipment were seized under proper memo of search and seziure dated 27.10.2009 which also consists of list –1 (serial numbers of sims of Zong found installed in the active system) and list –2 (serial numbrs of Sims of Zongs placed separately in a box) as part and parcel of said memo of search and seizure.
From the recovery of active system/ equipment it transpired that the international GREY traffic from USA/ Canda being received through internet connected with two world Call Modems (having dynamic Ps 115.186.114.19 and 115.186.118.94 at the time of raid) comes to CPU through 08-Port Switch. In the CPU there are 03-applications being run viz. 1 Tunnel server (for creating encrypted VPN-Virtual Private Network), 2. VIP switch application (used for voice over (P) and 3. TIZO (DDNS Dynamic Domain Name server used for adjusting change of IPs, calls/ GREY traffic from outside Pakistan when reaches the above VoIP switch application is forwarded to quantum gate way which passes on the international calls to GSM box having local sims for dialing through local numbers to throw the call to and user.
Accused Mohammad Ilyas son of Allah Rakha and the seized material have been brought to the police station. The above mentioned facts constitute the commission of offences punishable under sections 4/7/8/9/11/16/19 PECO 2007 read with 31(1) of Pakistan Telecommunication (Re-organization) Act, 1996. Hence registration of the case against accused Mohammad Ilyas son of Allah Rakha r/o 64/II, 11th Commercial street, Phase IV, DHA, Karachi and others. Arrest of accused Mohammad Ilyas son of Allah Rakha is effected. The investigation of the case is taken up by the undersigned."
Learned counsel for the applicant/ accused at the outset has argued that the incident is alleged to have taken place between the August to October 2009, but the report has been lodged on 27.10.2009 upon a written complaint of Mr. Abdul Batin. As regards the offences falling under Pakistan Electronic Crimes Ordinance, 2007 with which the applicant/ accused is charged have died a natural death as the said Ordinance was not tabled before the National Assembly within the stipulated period of four months. Learned counsel for the applicant/ accused has further argued that there is clear violation of mandatory provisions of Section 103(5) Cr.P.C, which provides that search has to be made in presence of two independent witnesses of the locality failing which the recovery made is of no consequence. Admittedly, as per the FIR, search was made on the pointation of the applicant/ accused, who took FIA and PTA team members to the place voluntarily, but the members of the raiding team did not consider it appropriate to arrange for a private witness when specially they had much time to associate any private person from the locality. Even from the contents of the FIR it is not disclosed by the complainant that whether any private person was offered to witness the search. In order to fortify his submission he has upon a case reported as 2009 SCMR 1255, wherein the Honourable Supreme Court of Pakistan observed that requirement of section 103 Cr.P.C i.e. association of two members from the locality as mashirs for witnessing the recovery is mandatory unless it is shown by the prosecution that at the particular time it was not possible to have to mashirs from the locality. The relevant part of the judgment is reproduced as under:-
"It may be observed that it has been repeatedly held that the requirement of section 103 Cr.P.C namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."
Reverting to other offences i.e. under P.T.C (Re-organization) Act, 1996 learned counsel for the applicant/ accused has argued that the same is bailable being punishable with two years. However, he pointed out that even section 4 of PECO is punishable with three years and is not applicable in the present case. The complainant has mentioned Sections 7 and 8 though no material was produced and no allegation of fraud and forgery has been established against the applicant/accused and again the punishment is provided is of 7 years imprisonment. Learned counsel for the applicant has therefore argued that sections 7 and 8 have been added deliberately to make out non-bailable offence.
Coming to the next section 9, which provides misuse of system and use. It is contended that there is an ambiguity in the same viz a viz the present case as Section 19 of the PECO Act suggests that either offence committed and abated or not while sub section (2) of Section 19 analogy case requires further inquiry which is bailable. He has further stated that Data Excess information section is not offence, which does not fall under prohibitory clause of Section 497 Cr.P.C. He has drawn this Court attention to the violation and non-compliance of section 31(5) of the PTC (Re-Organization) Act 1996 by the complainant. Drawing this Court attention to the FIR, learned counsel has submitted that complainant has blindly taken cognizance on a police report. He referred to the definition of complaint as provided under section 4(h) Cr.P.C which stipulates that "complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but it does not include a report of police officer." He therefore, argued that it is clear that the cognizance should have been taken by the Trial Court and not the complainant himself by registering an FIR, which is contrary to law. The Pakistan Telegraphic Act, which is special law which is governed by special procedure and clearly provides that if information received earlier then why did not complainant approach the Magistrate for search warrant. They did not even apply for it, thereby it is presumed that they had no intention of showing recovery. However, a copy of an order passed in Cr.B.A.No.471/2009 was placed by learned counsel for the applicant, which was decided by my learned sister Qaiser Iqbal J. (As she then was) wherein incidentally investigation officer was the same as well as the offences with which the accused was charged were the same. The Court after discussing all the material available before it, granted bail to the accused.
After hearing the complainant Advocate at length Mr. Sarki appearing for the State has raised objections in which he has submitted that requirement of section 103 Cr.P.C does not apply in the present case as all the senior officers have given their testimony and this is not illegal. In the FIR he has further submitted that at the time of search a video recording of the place was taken and the aiding and abetting enquiry still under process against Zong people and approximately 300 sims were recovered from the place. He has stated in our country the law, which is still in infancy while the crime is much more well advanced.
I have given anxious consideration to the arguments advanced at bar. It is fact that the investigating agency has submitted interim challan, offences with which the applicant is charged which are punishable upto 7 years. Grant of bail in offences punishable with less than imprisonment for less than 10 years is rule and refusal is an exception as laid down in the case reported as (PLD 1995 S.C 34). The case against the applicant/ accused does not fall within the prohibitory clause of section 497(1) Cr.P.C. The prosecution has collected relevant record and documentary evidence including the server. However, keeping in view the principle governing the grant of bail in non-bailable cases, I am inclined to extend the concession of bail to the applicant/ accused.
For the foregoing reasons I had admitted the applicant/ accused on bail on furnishing solvent surety in the sum of Rs.500,000/- and P.R bond in the like amount to the satisfaction of this Nazir of this Court vide order dated 25.11.2009.
These are the reasons for the short order.
Judge.