IBAD-UR-REHMAN LODHI, J.---The petitioner, who has been involved by the Federal Investigating Agency, Cyber Crime Circle, Rawalpindi in case FIR No.20 dated 19-6-2014 registered under sections 36, 37 of the Electronic Transactions Ordinance, 2002 read with sections 419, 420, 468, 471 and 109, P.P.C. Has moved the present petition seeking his release on post arrest bail.
2. According to the contents of the FIR, after permission of "competent authority" a raiding party of Federal Investigating Agency conducted a raid at a flat in Bahria Town, Rawalpindi and found three laptop computers along with one Wi-Tribe, one PTCL EVO, one external Hard Disk and seven credit cards, The present petitioner as per showing of the FIR was amongst those three persons who were found present at the time of raid in the said premises and allegedly after admitting their guilt as to the unauthorized access/issuance of online air tickets through stolen/hacked credit cards, surrendered their email accounts/websites along with passwords which were taken into the possession through some seizure memo. According to the technical analysis report, the accused persons were found involved in illegal and unauthorized issuance of online air tickets through hacked/stolen credit cards of different issuer companies.
3. The learned counsel for the petitioner, while referring the provisions of sections 36 and 37 of the Electronic Transactions Ordinance, 2002, has contended that no offence whatsoever has prima facie been made out at least against the present petitioner. He further questioned the raid conducted by the FIA raiding party and termed it violative to the provisions of section 32 of the Pakistan Telecommunication (Re-organization) Act, 1996. He further contended that no aggrieved person came forward with any complaint to whom, allegedly any air tickets were issued as a result of use of hacked credit cards. By referring the 'attraction of section 109, P.P.C. As an offence against the petitioner, the learned counsel contended that maximum as against the present petitioner the allegation of abetment is the case. Finally by referring the sentence provided under sections 36 and 37 of Electronic Transactions Ordinance, 2002, he argued that as the sentence of fine has independently been provided as a punishment, thus the case does not fall within the prohibitory clause of section 497, Cr.P.C.
4. As against the contentions of the learned counsel for petitioner, the learned counsel appearing for FIA has argued that the allegations contained in FIR are serious in nature and hackers should not be given any concession even in kind of the release on bail. By referring section 38 of Electronic Transactions Ordinance, 2002, the learned counsel has contended that the offences under said Ordinance are non-bailable.
5. After hearing the learned counsel for the parties and going through the record, it is evident that the raid was shown to have been conducted by the Federal Investigating Agency/Raiding Team after permission of "competent authority". "Appropriate Authority" although has been defined in section 2(e) of Electronic Transactions Ordinance, 2002 but in whole of the said law "competent authority" has no where been defined. When the learned counsel for petitioner argued as to the non-compliance of section 22 of Pakistan Telecommunication (Reorganization) Act, 1996 in non issuance of any search warrant, the FIA controverted said argument on the plea that provisions of Act, 1996 or any other law e.g. Wireless and Telegraphy Act, 1933 or Prevention of Electronic Crime.
Ordinance, 2009 are not applicable on the proceedings to be taken under ETO, 2002.
Section 22 of ETO, 2002, however negates the version of FIA as the provisions of Act, 1996 are made applicable with regard to proceedings to be taken under the provisions of ETO, 2002.
When asked, the learned counsel for FIA has frankly conceded that no email accounts/websites along with passwo rd related to present accused/petitioner has been taken into possession by the raiding party. The premises of flat which was raided, admittedly never belong to the present petitioner. By showing mere presence of the petitioner and alleged collective confession as to the guilt are very weak type of B circumstances in order to connect the petitioner prima facie with the criminality involved in the criminal case.
6. The assertion of section 109, P.P.C. In the FIR, decreases the gravity of offence at least against the present petitioner and only an C alleged abettor cannot be connected with the main offence.
7. Section 36 of Electronic Transactions Ordinance, 2002 provides that 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 authorized to gain access shall be guilty of an offence under the Ordinance.
Whereas, Section 37 of the Electronic Transactions Ordinance, 2002 provides that 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 the Ordinance.
8. In absence of any material connecting the petitioner with the alleged crime prima facie the petitioner, on the face of it, cannot be connected at this stage with any offence either under section 36 or 37 of ETO, 2002. The petitioner has been arrested and has been on physical remand and is not required for further purposes of investigation. The imposition of sentence of fine independently for both the offences under sections 36 and 37 of ETO, 2002 brings out the case of the petitioner from the prohibitory clause of section 497, Cr.P.C. The pre-trial punishment is not intention of the law and present period of detention is nothing but a pre-trial punishment which cannot be sanctioned under the law.
9. Resultantly, this petition is allowed and petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with one surety each in the like amount to the