' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment dated 28-2-2008 passed by the learned Additional Sessions Judge, Rawalpindi, whereby he convicted the appellant accused under section 31 of Pakistan Telecommunication Re-Organization Act, 1996 and sentenced him to undergo one year imprisonment and to pay fine of Rs,500,0000 (rupees five million), in default whereof to undergo imprisonment for six months. Half of the fine amount if recovered from the convict was directed to pay PTCL, Islamabad, which has suffered monitory loss while he was acquitted of the charge under sections 36/37 of Electronic Transaction Ordinance, 2002 and under section 420 P.P.C. Benefit of section 382-B, Cr.P.C. Was, however, extended to him in case F.I.R. No,8 dated 13-4-2005, offence under section 31 TRA 1996, Sections 36/37 of Electronic Transaction Ordinance, 2002 read with Sections 420/109 P.P.C. Registered at Police Station, F.I.A/Corporate Crime Circle Rawalpindi.
2. Precisely, the prosecution story as alleged in the complaint is that Sajad Latif Awan, Zonal Director Enforcement P.T.A., Rawalpindi, submitted an application (Exh.PB) to the Director F.I.A., Rawalpindi, copy of which was also sent to Lt. Col.(Rtd.) Aurangzeb, Regional Manager NSS, PTCL, Islamabad, the contents of which are stated as under:-- "PTA has received a complaint from PTCL that Messrs Sazeb Enterprises is involved in operation of International Voice Traffic Termination by passing legal gateway using quantum switches and Internet Protocol (I.P) address 203.99.54.134 as source which has been obtained by some Mr. Abdul Aziz Chughtai having telephone No,051-5583225 at 36/1 Harley Street, Rawalpindi Cantt. As per section 20 of T.R.A. 1996 such service cannot be provided until and unless a valid licence to establish, maintain and operate LDI service is obtained for which Pakistan Telecommunication Authority (P.T.A) is the only authorized body for issuance of Licence. This licence has a cost in shape of licence fee as 0.5 Million US Dollars along with installation of standard equipments and provision of monitoring equipment to Government of Pakistan. Certain taxes are involved to be paid by such operators to Government of Pakistan and in present case the accused is enjoying all unjustified benefits in his favour, as he has neither applied for nor obtained any licence."
3. After due investigation report under section 173, Cr.P.C. Was submitted against the appellant accused. Charge was framed against the appellant accused, who denied of the charge, pleaded not guilty and claimed trial. To prove the charge, the prosecution produced its evidence. The appellant accused was examined under section 342, Cr.P.C. Although the accused neither opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. Yet he produced documentary evidence in his defence Exh.D.1 to Exh.D.7. The learned trial Court after hearing the learned counsel for the parties passed the above said judgment, which is being assailed through this appeal.
4. The learned counsel for the appellant has contended that the Internet Protocol I.P. Address is like home address as admitted by P.W.2, P.W.3, and P.W.10, hence nobody else could know about the same and that I.P. Number mentioned in F.I.R. Is different from the given number on the warrants of arrest (Exh.PC/1) and in fact the actual accused were Messrs Sipra and Company who were using that I.P. Address given in warrant of arrest and the appellant was involved in the instant case falsely. He further argued that recovery memo. (Exh.P.C), according to the Investigating Officer as well as the witnesses, was prepared and signed at the spot but these documents were computer made and could not be prepared at the spot. Similarly, he assessed that Exh.PC and Exh.PD are the said documents, which are of no use as the equipments were taken by the P.T.A. For the purpose of statistical report without permission of the Court particularly when P.T.A. Is the complainant and all the equipments were available in the market and selling of the same is not prohibited and the appellant cannot be burdened for criminal liability mere on possession of such articles and there is no rule whereby retaining of the same is prohibited. The cables allegedly used for the purpose of, operation, were not recovered from the spot. Block diagram was not prepared in the present case; P.Ws 1 and 2 have admitted that they had not received the required technical training 'about know how of installation, and the agreement Exh.PG/1 for the purpose of connection from Micro net Broad Band Private Limited Company Islamabad was not signed by the appellant, same could not be used in evidence. There are no details of loss suffered by the P.T.C.L., so the bill prepared was a forged document as call receiving having no physical existence and there is no record of call termination. The Sims, which were allegedly recovered belonged to some company but no action against that company was taken and that without foreign partner such business cannot be done but no such evidence is available. The formula of evidence applied is discriminatory which in similar cases was applied to other accused.
5. On the other hand, learned Deputy Attorney General assisted by the learned counsel for the complainant has opposed the prayer made by the learned counsel for the appellant.
6. I have heard the learned counsel for the parties, gone through the evidence and record available, with their able assistance.
7. After going through the evidence on record, I have found that Muhammad Ahmad, P.W.4, Manager, Finance Micro net Broad Band Private Limited, Islamabad, an Internet provider Company, appeared before the learned trial Court, where he deposed that they provided Internet connection under use, to Sazeb Enterprises, which was activated on 24-11-2004 and connection was installed on telephone No,5583225 at 36/1 Harley Street Rawalpindi and Mobile number of the consumer as per record is 0333-5133080, which is in the name of the appellant Alamgir Khalid, the ownership of the company to whom the connection was issued is not denied by the learned counsel for the appellant. However, he has only submitted that he got registered the said company but he did not do any business in the name of the said Company but the registration of the company Sazeb Enterprises in the name of the appellant was affirmed by Muhammad Saeed Toor, (P.W.6) the Deputy Registrar, of the Firm, according to which, there were three directors or partner of the said Firm, namely Sajida Nasim, Temour Khalid and the appellant, who was holding 40% share. Similarly, the place of commission of crime being the residence of the appellant i,e, 36/1 Harley Street Rawalpindi was not denied. However, the learned counsel for the appellant stated that house was in the name of father of the appellant, who had died and his other legal heirs were also owners of the said house. Mobile number provided by the consumer to connection providing Company was owned by the appellant. The telephone number where the connections of internet was installed that is also at the same premises but according to the learned counsel that was in the name of father of the appellant. So for all the practical purposes, the number used in the crime traced, the place of occurrence and the company to whom the connection was provided that was not in the use of the appellant, as admitted and proved through the evidence available on record and no other inference is possible. Much emphasis laid by the learned counsel that I.P number, which was used in the crime, is like a personal address and nobody else could know about the same but the evidence on record would show that the I.P. Number 2039954134 was detected by operational staff of P.T.C.L. And the same number was involved in the International Voice Traffic Termination (illegal gateway) and on inquiry it revealed that said I.P. Number was allotted to Messrs Sazeb (registered Firm of appellant) by Micro net Broad Band DSL operator and the same was duly mentioned by the complainant/PW-1 in the F.I.R., and during cross examination, when P. W.1 was asked that it was correct that the above mentioned number was mentioned in the complaint made to F.I.A. He admitted this fact. Even all the other documents available on the file in the evidence bear telephone numbers and I.P number of the appellant, so the contention of the appellant that on arrest warrant a different number was mentioned is of no help to him, as that may be a clerical mistake at the time of issuance of warrant of arrest. It is a case of cyber crime wherein when termination of voice traffic was detected then prior inquiry was necessary to detect, the culprit and place, where crime was being committed so it was deposed by Aurangzeb (P.W.2), Ltd. Col. (R)
Manager, NSS, P.T.C.L., that prior to conduct of raid, necessary ground work of checking and other investigations were carried out and after being fully satisfied, the complaint was moved and thereafter at the time of raid the whole illegal set up installed by the appellant was found operational and 16 telulars were taken into possessions vide P.1 to vide P-16. Sims of mobile of different companies were also recovered from the spot along with other accessories, which were taken into possession vide memo. Exh.P.17 to Exh.P.h.32 and recovery memo Exh.PC was prepared, which was proved through evidence of complainant-P.W.1 Sajjad, P.W.2 Aurangzeb, Manager, P.T.C.L., P.W.3 Kashif Ghafoor, Assistant Divisional Engineer, P.W.5 Major Retired Mazhar Hussain and P.W.10 Nazar. Muhammad, S.-I, who were the members of raiding party. The learned counsel contended that the other articles like cables, which were required to make the installation in operation were not recovered, so these recoveries were of no help to the prosecution, but in evidence of all the above mentioned P. Ws. It is available that there were sockets installed and the cables were used at the time of operation, so in that scenario it was not possible to detach everything from ground when the major instruments which were used being operational were taken into possession. Exh.PE, Exh.PE/1 and Exh.PF would further show that all the articles, which were taken into possession were technically checked by the Expert of P.T.C.L. And found in operation and they also provided the details about the working of recovered articles. The contention of the learned counsel for the appellant was that the same could not be checked without permission of the Court is of no avail, however, when he was asked that what provision of law has been violated he was unable to answer the query. Even otherwise, it was only relevant technical staff, who could analyze the working of these articles and that was only available with P.T.C.L., and said report is admissible as a primary evidence as the legislature keeping in view the intricacy of the crime has made major changes in Qanun-e-Shahadat, 1984 as provided in section 29 of ETO, 2002 and Schedule-II. As far as the contention of learned counsel for the appellant that the agreement Exh.PG/1 between the appellant and the Micro Net Broad Band Company was not signed by the appellant, same is of no consequence when issuance of connection to Firm of appellant, and the telephone numbers are not denied. Similarly, the detail of loss or calculation is available, as the call receiving has no physical existence but it was available on the computer. All the details of telephone numbers including I.P. Number of the appellant which was taken from computer is evident from Exh.PA containing 18 pages and similarly, the time consumed by the appellant was calculated 1332 hours and the monetary loss suffered by P.T.C.L. Was calculated to the tune of about one Crore thirty one lack and D.S.L. (Digital subscriber line) user details was also tendered in evidence which consists of about 26 pages and that loss itself contained the customer name as Sazeb Enterprises, billing address, residence of the appellant and telephone number, owned by the appellant. All these copies were prepared from Computer. The learned counsel for the appellant has contended that the documents were not proved in accordance with Qanun-e-Shahadat, 1984 and were not dmissible in evidence but in my view section 3 of Electronic Transactions Ordinance, 2002 is the complete answer to the objection raised by the learned counsel for the appellant which is re-produced below:-- "Legal recognition of Electronic Forms.--No document, record, information, communication or transaction shall be denied legal recognition, admissibility, effect, validity, proof or enforceability on the ground that it is in electronic form and has not been attested by any witness."
' The above quoted provisions of law would show that this is a special law, according to which, all the above documents, record and information were admissible in evidence in their present form, even if those were not attested by any witness, but in the present case all the documents tendered in evidence were attested by the witnesses, who appeared in the Court and proved the authenticity of said documentary evidence. Another objection of the learned counsel for the appellant, was regarding calculation of the timing used and loss occurred by PTCL which was hand written with pen ink on the said papers and contended that billing documents do not come on the said criterion to deal with the contention raised.
' Section 5(2-a) ibid, which is re-produced below for facility of reference:-- ' Section 5."Requirement for original form.--(1) The requirement under any law for any document, record, information, communication or transaction to be presented or retained in its original form shall be deemed satisfied by presenting or retaining the same if: (a)............................
(b)............................
(2) For the purpose of clause (a) of subsection (1):
(a) the criterion for assessing the integrity of the document, record, information, communication or transaction is whether the same has remained complete and unaltered, apart from the addition of any endorsement or any change which arises in the normal course of communication, storage or display; and ' No doubt that criterion for assessing the admissibility, of the document or information, etc. Is that the same should remain complete and un-altered but at the same time it is also provided in the above quoted law that if there is any addition in instrument, and that arise in normal course, and the document is still complete and un-altered, that could not be brushed aside. The legislature in its wisdom has amended the provision of Article 2(e) of Qanun-e-Shahadat, 1984 in terms of section 29 of Electronic Transactions Ordinance, 2002 and by said Ordinance various changes have been made in definition clause, by addition of Article 2(e) of the Qanun-e-Shahadat, 1984 and all the documents prepared, produced or generated through Modern devices are admissible in evidence. So, thereafter there remains no ambiguity that any document electronically transmitted was prepared whether the same is signed or unsigned could be questioned with reference to the crimes which is subject matter of this appeal. For facility of reference section 29 and section 2 of the Electronic Transactions Ordinance, 2002 and Article 2(e) of Qanun-e- Shahadat Order are re-produced below:-- "Section 29. Amendment of Presidential Order No,X of 1984.--for the purposes of Ordinance, the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984) shall be read subject to amendments specified in the schedule of this Ordinance."
"2(e) the expression, "automated", "electronic", "information", "information system", "electronic documents", "electronic signature", "advanced electronic signature", and "security procedure" shall bear the meanings given in the Electronic Transactions Ordinance, 2002."
Similarly extensive changes have been brought by the legislature in Qanun-e-Shahadat, 1984 through second schedule of E.T.O.,2002 to meet with the situation like present one and electronically gathered evidence is to be treated as primary evidence, so the documents tendered in evidence from Exh.PA to Exh.Ph/1 are admissible and duly proved and there is nothing on record which could show that narration therein was altered. I may observe here that this is a case of cyber crime wherein latest technology was used whereby the whole operational system of the State was by-passed meaning thereby an advance and most revenue generating department of the State was set at naught with illegal installations. Such crime have become rampant in the society and that is the reason the legislature in its wisdom has provided a different criterion about admissibility of evidence in such like cases. Now a days without any wire one can have the facility of connection all over the world and the whole business of the world is going on through Internet, E-Mail etc. And due to development in Science and Technology, it would not be possible to bring on record the physical existence of everything, as the whole technology is based on satellite operational networks.
8. As far as defence of the appellant that he was made scapegoat and the culprits were Messrs Sipra Enterprises Limited that does not appeal to reason as the documents tendered in defence belonged to one Messrs Sipra Enterprises who were also involved in a similar offence and later on were convicted and sentenced in a different case. Hence, the defence plea is absolutely absurd.
9. For what has been discussed above, I am of the considered view that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt. Resultantly, this appeal having no merits is dismissed.
10. Before parting with this judgment, it is observed that the appellant was convicted under section 31 of the Pakistan Telecommunication (Re-organization) Act, 1996 and sentenced to one year's imprisonment and also to pay fine of Rs,5 million and in case of default he was to undergo six months imprisonment as alternate but in my view the alternate sentence of six months due to non-payment of fine was illegal as there is no alternate punishment provided under section 31 ibid and fine if imposed that is to be recovered by way of arrears of Land Revenue from the appellant. In this view of the matter the sentence of six months as alternate is set aside and it is directed that the amount of fine shall be recovered, from the appellant or his property as Arrears of Land Revenue and half of same shall be paid to P.T.C.L., whereas other half shall go to State.
11. The appellant is on bail. He was in attendance on all the previous dates of hearing but today he is not in attendance. The District Police Officer, Rawalpindi is directed to ensure arrest of the accused appellant and thereafter send him in judicial custody. Office is directed to send a copy of this order to the D.P.O. Concerned for compliance.
12. As the appellant has absented himself; therefore, the surety amount is forfeited in favour of the State and proceedings under section 514, Cr.P.C. Are directed to be initiated against the surety of the appellant. Office is directed to maintain separate file of the surety and notice be also issued to the surety to show cause as to why he should not be burdened with surety amount.