OMAR SIAL, J.---Adil Nadeem, the applicant has sought post-arrest bail in Crime Nd. 02 of 2020 registered under section 22(1) of the Prevention of Electronic Crimes Act, 2016. Earlier Application seeking bail was dismissed, by the learned Sessions Judge, Hyderabad.
2. The background to the case is that an undercover operation was launched by the cyber-crime unit in Milan to fight the diffusion of child sexual abuse material through groups on Telegram and Whatsapp in which 351 foreign numbers were investigated. The Interpol coordinated with the cyber- crime wing of the FIA because one cell number was of Pakistan origin. FIA conducted its inquiry and discovered that the cell phone number been provided by the Interpol, being 0342-5435006 was in the use of the applicant Adil Nadeem in Nawabshah. The FIA conducted a raid at the address of the applicant and seized one cell phone as well as two computer hard drives.
The seized devices were sent for forensic analysis and images/videos of minors were found.
I have heard the learned counsel for the applicant as well as the learned Assistant Attorney General, for Pakistan.
My observations are as follows.
1. The FIA in this case appears to have conducted a thorough and comprehensive investigation. The telephone number that had been identified by the Interpol was admittedly in the use of the applicant. The IMEI number of the set seized also reconciled with the Call Data Record that was obtained by the FIA. There is no denial that the cell phone and the hard drives were recovered from the house of the applicant and was in his use. The cell phone and hard drives were seized under a memo with specific details. The same equipment was sent for forensic analysis and a professional analysis was carried out which did reveal incriminating material consisting of photos and videos of minors in various sexual acts. The recording of such material is in FIA's possession.
2. The learned counsel for the applicant has argued that the FIR was lodged after 3 years: that the images/videos had been uploaded and saved on hard drive by the brother of the applicant who died somewhere in 2016. The learned counsel has however stressed on the argument that the offence with which the applicant is charged does not fall within the prohibitory clause of section 497.
3. As regards the delay in the filing of the FIR, the impact of such delay on the prosecution case will have to be evaluated at trial. However , upon a tentative assessment and in the circumstances of the case, in which a sting undercover operation was conducted at an international level and a gang of persons from all over the world were clandestinely investigated and their respective details obtained and then traced back to the individual countries from where the child pornography originated would justify the delay at this preliminary stage.
4. Upon a tentative assessment and keeping in view the fact that the equipment was in the sole and exclusive use of the applicant for the last few years and that he had taken pains to install application locking passwords on the same, whether it was the dead brother of the deceased who had uploaded and saved the images/videos of the minors requires deeper analysis of evidence.
5. I have given anxious thought to the last argument raised by the learned counsel i.e. that the offence with which the applicant is charged carries a potential sentence of 7 years and thus falls within the non-prohibitory clause of section 497, Cr .P.C According to the learned counsel this would entitle the applicant to the grant of bail.
In the landmark case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) the Honorable Supreme Court held: Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced .from this provision of law is that in non-bailab le offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is "a rule and refusal an exception". So the bail will be declined only in extraordinary and exceptional cases, for example:-
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence:
(c) where there is danger of the offence being repeated if the accused is released on bail: and
(d) where the accused is a previous convict.
6. Possession of child pornography and disseminating it on online forums is a very serious offence and must not be taken lightly . In the present case the accusation is not of possession of child pornography which could happen for a number of reasons. Some offenders may be satisfied with the mere viewing of child pornography others could very easily engage in contact sexual offensive behaviour . The images shown to me during the hearing are indeed very disturbing to say the least. Having given the matter a deep thought and having tentatively assessed the material gathered during the investigation. I am not satisfied that it can be conclusively said at this stage that the behaviour will not be repeated if bail is granted or that the applicant will not abscond. In my view, the nature of the accusations and the material collected to date is such that merits the case to fall within the exception of granting bail when the of fence falls within the non-prohibitory clause of section 497, Cr .P.C.
7. The application stands dismissed. The learned Trial Court is however directed to use its best endeavors for an expeditious disposal of the case, preferably within 4 months. Let a copy of this order be- sent to the learned Trial Court for compliance