' MUHAMMAD TASNIM, J.---Applicant Waqas Ahmed Siddiqui is booked in Crime No,7 of 2011 under section 37 of Electronic Transactions Ordinance 2002 (hereinafter called Ordinance 2002) at P.S. FIA, Cyber Crime Circle, Karachi. Initially the applicant applied for bail` before learned III-Additional Sessions Judge, Karachi Malir, who dismissed the bail application per order dated 3-8-2011. Against the aforesaid order present bail application has been filed.
2. Facts as set out in the F.I.R., are that complainant Mst. Sahida Ahmed daughter of Ahmed Din was married to the applicant on 3rd September, 2006 and out of wedlock one son Ayan was borne and finally on 26-2-2011 complainant was divorced by way of Khula by the present applicant. It is alleged in the F.I.R. That applicant on 11-3-2011 has scattered all the objectionable pictures of the complainant to the complainant's family members and friends to make fun and such Objectionable material was also sent to the complainant. It is further alleged that applicant threatened the complainant that her objectionable video will also be uploaded on the internet. It is further claimed that on 11th March, 2011 the applicant with ulterior motives and to malign the complainant generated and transmitted email amongst the friends and family members of the complainant with all her objectionable pictures. Accordingly, the F.I.R. Was lodged.
3. Learned counsel for the applicant has submitted that since the marriage between the applicant and complainant has been dissolved and due to enmity false F.I.R. Has been registered against the applicant. Learned counsel says that allegations made in the F.I.R. Are totally false and all the prosecution witnesses are FIA officials/employees. Learned counsel submits that provisions of Ordinance, 2002 are not applicable to the case in hand and there is delay of about three months in lodging of F.I.R. Which has not been explained by the prosecution. He says that if provisions of section 37 of Ordinance, 2002 are read with the preamble it will be noticed that provisions of section 37 for which the applicant has been charged does not apply in the circumstances of the case. Learned counsel for the applicant further submitted that applicant is an ailing person and suffering from TB and prior to his arrest he has remained in hospital for more than one month for his medical treatment. He says that applicant was arrested in May, 2011 and ever since then he is in custody and his medical condition is not good. Learned counsel further says that offence charged provides sentence not exceeding seven years or fine which may extend to one million rupees or with both which does not fall under prohibitory clause. Learned counsel further says that allegations made in the F.I.R. Require recording of evidence as allegations cannot be substantiate unless prosecution brings tangible evidence on record to prove the allegations made in the F.I.R.
Learned counsel says that it is a fit case in which further enquiry is required. Learned counsel prays that applicant be enlarged on bail. In support of his arguments learned counsel for the applicant has relied upon the following judgments:--
(1) HAJI WALI MUHAMMAD .V. THE STATE (1969 SCM R 233)
(2) MUNIR MUHAMMAD AND 3 OTHERS V. THE STATE (1976 SCM R 145)
(3) IJAZ AKHTAR V. THE STATE (1978 SCM R 64)
(4) TARIQ BASHIR AND 5 others V. THE STATE (PLD 1995 SC 34)
(5) ZAFAR IQBAL V. MUHAMMAD ANWAR AND OTHERS (2009 SCM R 1488)
(6) SUBHAN KHAN V. THE STATE (2002 SCM R 1797)
(7) FAZAL ELLAHI AND ANOTHER V. THE STATE (2004 SCM R 235)
(8) SAEED AHMED V. THE STATE (1996 SCM R 1132)
(9) MUSLIM KHAN V. THE STATE (2000 PCr.LJ 814)
(10) GHULAM MUHAMMAD_V. THE STATE (NLR 1983 CRIMINAL 372)
(11) ZAKHIM KHAN MASOOD V. THE STATE (1998 SCM R 1065)
(12) MUHAMMAD ZAFAR MANIAR V. SHAHZAD AHMED AND ANOTHER (2011 M LD 602)
(13) UNREPORTED CASE OF WAQAS AHMED V. THE STATE (SPECIAL CRIMINAL BAIL APPLICATION No,25 of 2011)
(14) UNREPORTED CASE OF MUHAMMAD ANWAR V. THE STATE (SPECIAL CRIMINAL BAIL APPLICATION No,06 of 2011)
(15) BANARAS V. THE STATE (1978 SCM R 191)
4. On the other hand, learned counsel for the complainant has vehemently opposed the grant of bail and has submitted that provisions of section 37 of Ordinance, 2002 are fully attracted in the circumstances of the case. He further says that allegations in F.I.R. Are fully supported by the witnesses in their statement recorded under section 161, Cr.P.C. Learned counsel further submitted that P.W. Abdul Ghaffar is a Forensic Expert of FIA Cyber Crime and has submitted a forensic report implicating the applicant with the commission of offence. Learned counsel for the complainant further says that since objectionable material has been emailed to different persons and also objectionable photographs of the complainant have been uploaded on the Internet provisions of section 37 of Ordinance, 2002 are fully attracted in the circumstances of the case. He submitted that at the bail stage deeper appreciation of record cannot be gone into. Learned counsel says that prima facie applicant is connected with the commission of offence and he is not entitled to bail. With regard to ailment of applicant learned counsel for the complainant submitted that TB is neither such a disease which cannot be cured in prison nor the same can be made basis for grant of bail. Learned counsel further says that there is ample documentary evidence including the forensic report which has been obtained from the laptop of the applicant which fully connects the applicant with the commission of offence. In support of his contention learned counsel for the complainant has relied upon the following cases:--
(1) KHALIDA BIBI V. NADEEM BAIG (PLD 2009 SC 440)
(2) SARDAR MUHAMMAD AND OTHERS V. MUHAMMAD, FAZIL AND OTHERS (2002 SCM R 1990)
(3) MALIK AQEEL V. THE STATE (2011 SCM R 170)
(4) SHAHZAD AHMED V. THE STATE (2010 SCM R 1221)
(5) GHULAM RAZA V. KHUDA BUX AND ANOTHER (2005 SCM R 1904)
(6) ZARIN KHAN V. THE STATE (1980 SCM R 305)
(7) AMEENA HASSAN ALIAS TINA OTHERS V. THE STATE (1994 PCr.LJ 1495)
(8) MUHAMMAD AKHTAR V. THE STATE (1984 PCr.LJ 2340)
(9) ZAFAR IQBAL V. MUHAMMAD ANWAR AND OTHERS (2009 SCM R 1488)
5. Learned Standing has adopted the arguments advanced by learned counsel for the complainant and has submitted that there is ample evidence available with the prosecution which connects the present applicant with the commission of offence and the applicant is not entitled to bail. He submitted that entire evidence is documentary and the charges levelled in the F.I.R. Are fully supported by the material available with the prosecution. Learned Standing Counsel submitted that Forensic Expert has opined that all the objectionable material available with the prosecution has been obtained from the personal laptop of the applicant. He says that applicant is fully connected with the commission of offence and he may not be enlarged on bail.
6. I have heard the learned counsel for the parties and have gone through the record so also the case-law cited at the bar.
7. With regard to delay of three months in lodging of F.I.R. The prosecution could not satisfy the Court or justify the delay in lodging of F.I.R. It is yet to be determined after recording of evidence as to whether the provisions of section 37 of Ordinance, 2002 are attracted in the circumstances of the case or not. Entire documentary material is to be proved in evidence in accordance with law. It is yet to be determined as to whether any objectionable material was uploaded on the internet by the applicant or not. It is also to be determined as to whether any Email containing objectionable material relating to complainant was sent to anyone by the applicant. No doubt, forensic report has been submitted by an expert but it is to be evaluated by the learned trial Court in accordance with law. Since there is inordinate delay in recording of F.I.R. The case of prosecution is not free from doubt. Even otherwise, an examination of Electronic Transactions Ordinance, 2002 preamble whereof shows that such Ordinance was promulgated to recognize and facilitate documents, records, information, communications and transactions in electronic form, and to provide for the accreditation of certification service providers. Perusal of section 37 of Ordinance, 2002 shows that it deals with damage to information system and according to such section any person who does or attempts to do any act with intent to alter, modify, delete, remove, generate, transmit or store any information through or in any information system knowingly that he is not authorized to do any of the foregoing, shall be guilty of an offence under this Ordinance. It further provides that any person who does or attempts to do any act with intent to impair the operation of, or prevent or hinder access to, any information contained in any information system, knowingly that he is not authorized to do any of the foregoing, shall be guilty of an offence under this Ordinance.
8. As stated above, the point as to whether provisions of section 37 of Ordinance 2002 are attracted in the circumstances of the case same cannot be decided while assessing the record tentatively. It is left open to trial Court to decide this issue after recording of evidence. It is settled legal position that at the bail stage deeper appreciation of the record cannot be gone into but a tentative assessm ent is to be made just to find out as to whether applicant/accused is connected with the commission of offence or not. The issue involved in this case, in my view, cannot be decided without recording evidence coupled with the fact that there is delay in lodging of F.I.R. This case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant is admitted to bail on his furnishing solvent surety in the sum of Rs,200,000 (Rupees two hundred thousand) with P.R. Bond in the like amount to the satisfaction of learned trial Court.