This single order shall deal with two bail applications i.e. Crl.Misc.No.13884-B/2014 "FAISAL RIAZ, Etc vs THE STATE, Etc." and CrI.Misc.No.14140-B/2014 "RASHID BASHIR vs THE STATE, Etc" as petitioners in both the petitions seek post arrest bail in one FIR No.67/2014 dated 26.09.2014 under sections 36, 37 of Electronic Transaction Ordinance, 2002 read with sections 420, 468, 471, 109 PPC registered at police station FIA/Cyber Crime Circle, Lahore, which precisely contains that:- "A piece of information was received from a reliable source that a group of criminals is involved in stealing/Hacking of credit cards data related to the Banks of UK and other Countries. This data is being used for payments of student's fee and -other payables. Upon receiving the information a raiding team was constituted by. the competent authority comprising of Ch. Sarfraz DD/FIA, Asif Iqbal AD, Ch. Samar Inspe ctor, Ahmar Sindhu, Inspector , Muhamamd Asif SI, headed by Mian Asif Ali AD./FIA/CC/Lahore. The team raided at 33-M, Ist Floor , Model. Town ext Lahore dated 25-09-2014. During the raid it found that a person namely Rashid Bashir S/o Muhammad Bashir r/o House No.285 block 111 sector D-H Green Town Lahore having CNIC 35202- 8812992-1 was running a call center along with the illegal business for the payments of students fee and other payables by using the hacked credit cards data belonging to different Banks of UK and other countries. During on spot investigation, the owner of the call center was unable to present the license/legal documents of the call center . Rashid Bashir S/o Muhammad Bashir confessed during investigation that he is involved in stealing/hacking and using credit cards data related to different Bank of UK by the help of Faisal Riaz S/o Riaz Masih r/oH-6 Block No44 New Abadi Gohawa Badian Road Lahore Cants, Aakash Patrick S/o Ilyas Masih r/o H-k-809 Nishat Colony Lahore, Digital media was seized for forensic analyses form the alleged premises."
2. We have heard the arguments of learn ed counsel for the parties at length and perused the available record with their assistance.
3. As regards the case against Rashid Bashir (CrI.Misc.No.14140-B/2014), we observe that-
(i) Rashid Bashir was arrested from the premises where raid was conducted;
(ii) He was found running the Call Center illegally , as he could not produce either before the Investigating Agency or before this Court any proof with regard to registration of Call Center , as required by Pakistan Software Export Board (G) Ltd, Ministry of Information Technology Government of Pakistan (PSEB);
(iii) Number of Computers/CPUs. Laptops and one Mobile set were recovered from the premises of raid and during investigation Rashid Bashir pointed out the concerned Laptop and Mobile Cell. On forensie/technical analysis of pointed Laptop and Mobile Phone, repor t's were prepared. The report with regard to LAPT OP is precisely to the following ef fect:- "Forensic Analysis Facts and Findings: On the basis forensic analysis of the subject hard disk, following are the forensic facts and findings:
1. The scanned copies of electricity and gas bills payments has been extracted from the subject hard disk drive Note : The data is annexed at " Flag-C "
2 During the forensic analysis of the subje ct hard disk drive, it was found that confidential/private information of the foreigners are extracted.
Note : The data is annexed at " Flag-D "
3. The document related to electricity bill with the name of Jagdish Ruparelia was found sent by T ricon Rashid.
Note : The data is annexed at " Flag-E "
4. Huge numbers of records of TT of W all Street Exchange company has been extracted; Note : The data is annexed at " Flag-F "
5. Huge numbers of bank receipts has been extracted and are attached at " Flag-G "
6. A confidential document of different business owners has been extracted whose utility bills were being paid from the stolen/hacked credit cards.
Note : The data is annexed at " Flag-H"
7. Miscellaneous documents has been extracted from the seized hard disk drive and are attached at " Flag-I ".
Conclusion: On the basis of aforementioned forensics facts and findings extracted after carrying out advanced forensics analysis techniques and using pre-indexed keyword searches using Forensic Toolkit software, it is hereby concluded that this laptop hard disk drive was involved in stealing/hacking and misuse of credit cards data belonging to the United Kingdom and other countries for the payments of students, fee and other payables." .The report with regard to Mobile Cell is to the following ef fect:..
"Forensic Analysis Facts and Findings: On the basis forensic analysis of the subject Mobile, following are the forensic/T echnical facts and finding: I. The Mobile is dual SIM one W arid T elecom and other Mobilink Network.
2. IMSI Numbers of the SIMS are (1) 410072060166670 W arid T elecom, (2) 41001813730978- Mobilink S1M/USIM Contacts are attacked at " Flag A"
The call detail record of Missed, Dialed and received are attached at " Flag-B "
After technical analysis of SMS detail it has been verified that the subject mobile was being used for financial transactions and payments of utility bills Note : The SMS detail is attached at " Flag-C "
During the forensic analysis of the subject cell phone, it was found that confidential/private information of the foreigners are extracted.
Note: The data is annexed at " Flag-D "
Online transaction of Barclays and other banks has been extracted and are attached at " Flag-E : During the forensic analysis of the subject cell phone, it was found that online transaction through Internet information of the foreigners are extracted.
Note : The data is annexed at " Flag-F "
9. Huge numbers of bank receipts has been extracted and are attached at " Flag-G"
10. Miscellaneous documents have been extracted from the seized hard disk drive and are attached at " Flag-l ".
Conclusion : On the basis of aforementioned forensics/technical facts and findings, it is hereby concluded that this Cell Phone was involved in the misuse of credit cards data belonging to the United Kingdom and other countries for the payments of Utility Bills and payment of student' s fee."
(iv) "The above articles were taken into custody from the premises which was being used by the present petitioner (Rashid Bashir) for running an illegal Call Center and he could not produce any record to establish that the Laptop and Mobile Phone were used by someone else, whereas, lie being owner of the Call/Internet Centre, must have the data/particulars of the visitors/users of his internet cafe or for that matter the record with regard to use of the computers kept for internet usage;
(v) Investigation to the extent of Rashid Bashir petitioner is in progress and durin g investigation one person from United Kingdom sent. an Email to the Investigating Officer, reporting misuse of his credit card and said Email is also part of the record;
(vi) Gist of allegation is that accused had established a Tricon Communication Company and by posing them as representative of Titan Telecom, through websites by practicing fraud they obtain credit card information from the foreigners by enticing them to arrange for certain goods for them at 50% to 70% less rate. After obtaining credit card information, the accused instead of arranging such goods, through those credit cards make payments of bills of other persons and get half of the bill amount from those persons as commission through Money Exchange, thus, prima facie in a sophisticated manner , the entire crime has been managed;
(vii) The Investigating Officer has also collected number of receipts showing how the petitioner collected data and then the same was used for stealing/hacking and using credit cards related to dif ferent Bank of UK;
(viii) On the face of it, prima facie the petitioner is involved in a white-collar crime, and undoubtedly these offences are not victimless. A single scam can destroy a company , devastate families by whipping out their life savings, or cost billions of rupees to the victims. By passage of time such type of crimes are now becoming more sophisticated than ever, and the Investigating Agencies have to use modern devices and expertise skills to track down the culprits. In these circumstances, although direct evidence is available in this case, but even when indirect/ circumstantial evidence is collected by the Investigating Agencies without breakage of chain, the same can be considered suf ficient evidence/ material to connect the accused with commission of the crime;
(ix) The Hon'ble Supreme Court of Pakistan in the case "SHAHZAD AHMED versus THE STATE through F.I.A.
Islamabad" (2010 SCMR 1221 ), held that:- "It is also settled principle of law that in case of bail the Court is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the. crime. See Chaudhry Shujahat Hussain v. The State 1995 SCMR 1249 and Government of Sindh through Chief Secretary and others v. Raeesa Faroo q and others 1994 SCMR 1283 . It is universal maxim that man is born innocent; it is the institutions of society that spoil him. It would also be relevant to consider that our nation is overwhelmed with an avalanche of corruption under whose weight it is being relentlessly crushed. Whatever the true in the observations, we seem to have institutionalized corruption.
The bloody putrescence of the virus oozes out of every pore of the body politic and every segment of national life, be it Government politics, business, law, medicine, health or education. The landmark judgment of this Court reported as Dr. Mubashir Hassan's case (PLD 2010 SC 265) has raised hopes that the Courts will now play a significant role in the eradicating corruption and other social evils. Therefore, it is humbly highlighted that in such a situation a more pragmatic approach than has been the case so far on the parts of the Court is needed at the investigation as well as bail stages of corruption cases, because if the Courts show almost motherly leniency towards people accused of high corruption then it would be impossible to successfully investigate and help brining the culprits to book or to check the ever increasing cancer of corruption. It is settled principle of law that while deciding bail application the Court should consider the following pieces of evidence:--
(a) Allegations made in the F .I.R.
(b) Contends of the F .I.R. and statements recorded under section 161, Cr .P.C.
(c) other incriminating material against accused .
(d) Nature and gravity of the charge :
(e) Plea raised by the accused ."
[Emphasis has been supplied by us] Further , the Hon'ble Supreme Court of Pakistan in the case "KHURSHID versus THE STATE" (PLD 1996 SC 305), held that:- The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same have not Faisal Riaz, etc. Vs. The State, etc. (Muhammad Qasim Khan & Muhammad Anwaarul Haq J. ) prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reasons that in most of the criminal cases the criminals get away without being punished on technicalities."
Almost, same view was reiterated by the apex Court in the case "JAFAR ALI versus THE STATE" (1998 SCMR 2669 ). xi) When the case of Rashid Bashir is gauged on the touchstone of above referred judgments of the apex Court, especially the underlined portion from "SHAHZAD AHMED versus THE STATE through FLA. Islamabad" (2010 SCMR 1221 ), we are convinced that prima facie sufficient incriminating material has been collected by the Investigating Of ficer to connect Rashid Bashir with commission of crime.
6. For what has been discussed above, we find no merit in the bail applicat ion of Rashid Bashir , thus Criminal Miscellaneous No.14140-1 1/2014 is hereby dismissed.
7. As regards the case of Faisal Riaz and Aakash Patric (CrI.Misc.No.13884-B/ 2014), the learned Law Officer remained unable to rebut the contention of learned counsel for these petitioners that against these two petitioners, there is only statement of co-accused Rashid Bashir . Furthermore, on court query , the learned. Law Officer could not refer any independent corroborative piece of evidence in support of said statement of Rashid Bashir coaccused. Additionally , we observe that Faisal Riaz and Aakash Patric are behind the bars for quite some time investigation to their extent is complet e and furthermore, as observed above for the moment independent corroboration to the extent of these petitioners is lacking, therefore, involvement of Faisal Riaz and Aakash Patric in the commission of the alleged offence, requires further inquiry . Consequently , Crl.Misc.No.13884-B/20 14 is allowed and Faisal Riaz as well as Aakash Patric petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs/00,000/- each with one surety each in the like amount to the satisfaction of learned trial court.