' MUHAMMAD HASHIM KHAN KAKAR, J.---Applicant, Mustafa Ali son of Sharafat Ali, seeks post-arrest bail in case F.I.R. No.1 of 2014 dated 28th March, 2014, under sections 36, 37(1) of the Electronic Transactions Ordinance, 2002 (the "Ordinance of 2002"), read with sections 420, 506, 507 and 509 of the Pakistan Penal Code, 1860 (P.P.C.), registered at Federal Investigation Agency (FIA) Police Station, Quetta.
2. Brief facts, as per F.I.R., are that initially on 21st May, 2013, an inquiry was registered at FIA, NRSC, Rawalpindi on the complaint of one Javeria Maqbool, daughter of Muhammad Maqbool, resident of G-6/1-4, Street No.88, House No.259-C, Islamabad, who alleged that some unknown person had created fake facebook ID in her name (Javeria Maqbool). That the said person/unknown accused had used her profile/details, uploaded her photographs and had also been sending her obscene and threatening messages, thereby causing threats and harm to her reputation. As the IP addresses of the activities carried out through fake facebook profile were found to have been formed and operated from Quetta according to the record provided by Facebook Inc., California, USA, therefore, the inquiry was transferred to NRSC Quetta for further legal action. During inquiry, it transpired that user IP addresses 203.135.38.205 assigned to fake facebook ID was used by phone No.081-2870066 installed at House No.204. Block-D Jinnah Town, Quetta, which was found office of a Non-Governmental Organization (NGO). Further inquiry revealed that fake facebook profile of the complainant was created and used by the forenamed accused/applicant, who is Manager Programme Development in the said NGO and an ex-University-fellow of the complainant.
Therefore, after obtaining search warrant of the premises, raid was conducted by the FIA personnel in supervision of principal investigator Muhammad Tariq. During search of his cabin-cum-office, laptop (HP), modem, PTCL Evo (Wingle), mobile phone and other incriminating material was seized, on his pointation, for further handing over to the Forensic Laboratory, NRSC, Quetta for the purpose of digital evidence recovery.
3. Chaudhry Mumtaz Yousaf, learned counsel for the applicant contended that there is delay in lodging of F.I.R., which has not been explained by the prosecution; that the provisions of sections 420, 506, 507 and 509 of the P.P.C. Do not fall within the ambit of prohibitory clause of section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.), while sections 36 and 37(1) of the Ordinance of 2002 are bailable in nature; that the applicant was arrested on 28th March, 2014 and since then he has been in custody; that the documents relied upon by the prosecution are yet to stand the test of scrutiny and cross-examination; that there are two punishments provided for the offence i.e. Imprisonment or fine, which makes the case as one of further inquiry for the purpose of bail.
4. On the contrary, Mr. Shabir Shah, learned Standing Counsel, while defending the bail refusing order dated 9th April, 2014, passed by the learned Additional Sessions Judge-III, Quetta, submitted that the applicant has admitted his guilt about creating a fake facebook ID in the name of complainant Javeria Maqbool by unauthorisedly using her profile and posting her photographs and also sending her obscene and threatening messages before the concerned learned Judicial Magistrate, while recording his judicial confession; that there are tangible pieces of evidence available on record to establish the complicity of the applicant with the commission of the alleged offence, thus, he is not entitled for the concession of bail.
5. Considering the arguments advanced by the learned counsel for the parties and looking at the facts and circumstances of the case, I have noted that the applicant is, in custody since 28th March, 2014. The investigation has been completed and report under section 173 of the Cr.P.C. Has been submitted before the competent Court of law for trial and, therefore, one of the factors for detaining the applicant, being the necessity of custodial interrogation, does not subsist any more.
6. It is admitted feature of the case that the offences under sections 420, 506, 507 and 509 of the P.P.C. Do not fall within the purview of prohibitory clause as contained in subsection (1) of section 497 of the Cr.P.C. And grant of bail in such like cases is a rule and refusal is an exception as has been held by honourable Supreme Court of Pakistan in the case of Tariq Bashir v. The State (PLD 1995 SC 34), whereas under sections 36 and 37 of the Ordinance of 2002, one of the alternative sentences i.e. Fine only is also provided, which read as under:-- "36 Violation of privacy of information.---Any person who gains or attempts to gain access to any information system with or without intent to acquire the information contained therein or to gain knowledge of such information, whether or not he is aware of the nature or contents of such information, when he is not authorised to gain access, as aforesaid, shall be guilty of an offence under this Ordinance punishable with either description of a term not exceeding seven years, or fine which may extend to one million rupees, or with both."
"37 Damage to information system, etc.---(1) 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 authorised to do any of the foregoing, shall be guilty of an offence under this Ordinance.
(2) 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 authorised to do any of the forgoing, shall be guilty of an offence under this Ordinance.
(3) The offences under subsections (1) and (2) of this section will be punishable with either description of a term not exceeding seven years or fine which may extend to one million rupees, or with both."
7. Undisputedly, the aforementioned sections of law levelled in the F.I.R. Provide two alternate punishments of imprisonment of seven years or fine or both. In such like cases, bail has to be granted to the accused/applicant on the principle that when a statute provides two punishments then for the purpose of bail, the lesser one is considered. Whether the trial Court, after conclusion of the trial, inflicts sentence of imprisonment or fine, it is the sole discretion of the trial Court and the same cannot be ascertained at this stage and this fact alone makes case of the applicant as one of further inquiry as to which punishment is to be inflicted.
8. I, therefore, accept this bail application and allow the accused/applicant bail, subject to furnishing bail bond in the sum of C Rs.5,00,000 (Rupees five hundred thousand only) with one surety and PR bond of the like amount to the satisfaction of the trial Court/Additional Registrar of this Court. However, it is clarified here that the above observations are tentative in nature and meant only for the disposal of the matter in hand, there shall have no bearing at all on anybody's case at trial.
' These are the reasons of my short order dated 24th April, 2014, announced in the open Court.