Through this common order, Crl. Misc. No.10519-B of 2024, titled "Muhammad Rizwan v. The State and another", and Crl. Misc. No.10278-B of 2024, titled "Irfan Ali v. The State and another", are being decided because both the petitions, filed under Section 497 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C"), are emanating from crime report bearing FIR No. 122 of 2024, dated 07.11.2024, for offences under Sections 3, 4, 13, 14, and 16 of the Prevention of Electronic Crimes Act 2016 ("PECA") and Sections 419, 420, 468, 471, and 109 of the Pakistan Penal Code 1860 ("PPC"), registered with Federal Investigation Agency ("FIA") Cyber Crime Reporting Centre, Multan ("Crime Report" or "FIR"). Both petitioners seek grant of bail after arrest.
Attorney General for Pakistan ("AAGP") and have gone through the record with their able assistance.
3. Tentative assessm ent of the record reveals that the precise allegations levelled against the petitioners, along with their co-accused, pertain to their involvement in acts of electronic financial fraud and forgery, specifically in the unlawful acquisition of funds from both national and international bank accounts. However, the same remains to be determined after the recording of evidence by the learned Trial Court, who precisely utilized these accounts to perpetrate the alleged offences. At present, no conclusive evidence has been gathered by the investigating agency with regard to the above-mentioned aspect of the prosecution case. Due to the absence of sufficient material at this stage to connect the petitioners with the offences alleged against them, the matter becomes one of further inquiry into the guilt of the petitioners in terms of subsection (2) of Section 497 of the Code.[1]
4. Even otherwise, offences in terms of Sections 3, 4, 13, 14, and 16 of PECA, along with Sections 420 and 471 of the PPC, are bailable. In "Mian Mahmud Ali Qasuri & others v. The State" (PLD 1963 Supreme Court 478), the Honourable Supreme Court of Pakistan held that 'The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished'.[2] At this juncture, the learned Assistant Attorney General for Pakistan objected and averred that due to the Prevention of Electronic Crimes (Amendment) Act 2025 ("Amendment Act"), provisions of Sections 13 and 14 have become non-bailable by virtue of the amendment made in Section 43 of PECA. Learned counsel for the petitioners averred that the Crime Report got lodged on 07.11.2024, whereas the Amendment Act got promulgated on 29.01.2025, to which the learned Assistant Attorney General for Pakistan contended that the amendment is retrospective in nature. Two questions of law arise, namely: a. Whether bail in a bailable offence is a substantive right or merely a matter of procedure?; and, b. Whether the amendment in Section 43 of PECA by the Amendment Act, to the extent it converts bailable offences into non-bailable will have retrospective applicability or will the same only apply prospectively?
5. In order to address these questions, jurisprudence on the subject was examined. The Honourable Supreme Court of Pakistan in "Khurshid Soap and Chemical Industries (Pvt.) Ltd. v. Federation of Pakistan" (PLD 2020 Supreme Court 641) held that '[w]hen an Act of Parliament provides that it will come into force at once then every provision of it becomes enforceable from the day the Act receives the assent of the President unless any provision of the Act itself suggests that it will come into force only when some authority nominated in this behalf so decides or on the happening of an event'. The Amendment Act, as observed earlier, in subsection (2) of Section 1 provides that it shall come into force on the day it was promulgated, i.e., 29.01.2025, therefore this Court will examine whether provision of Section 43 of PECA as amended by the Amendment Act can be applied retrospectively to offences under the Crime Report, commission of which took prior to the promulgation of the Amendment Act, or prospectively, which will be based on whether the amendment in Section 43 to the extent of making bailable offence as non-bailable is merely procedural or substantive in nature.
6. The law can be categorised as either substantive or procedural. Substantive law defines rights, while procedural law deals primarily with the process or remedies involved. Procedure is merely machinery, a means to an end, and its objective is to facilitate, not obstruct, the administration of justice.[3] Earl T. Crawford, in his book "The Construction of Statutes" (1998, pg. 581-583), writes that 'As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation.... Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions'. This reasoning has been adopted in our jurisprudence. In "Pakistan Steel Mills Corporation v. Muhammad Azam Katper" (2002 SCMR 1023), it was held that: 'It is a settled proposition of Law that Legislation not concerning procedural matters would operate retrospectively. However, Legislation of concerning mere procedure but more than a matter of procedure and touching a right in existence at the time of its passing will not operate retrospectively unless Legislature either by express enactment or by necessary intendment given Legislation retrospective effect, considering that the dispute having become past and closed transaction having created a right in one's favour could not be taken away by giving retrospective operation to the amended statutory provision'.
Similarly, in "Muhammad Shabbir and another v. Quaid-e-Azam University" (2022 SCMR 487), while relying on ratio decidendi laid down in "Gul Hassan and Co. v. Allied Bank of Pakistan" (1996 SCMR 237), it was authoritatively held that a statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective affect unless contrary is provided expressly or impliedly, or it affects the existing rights, or causes injustice or prejudice. It is a well- settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indictment" retrospective operation has been given. However, a statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to the substantive right.[4] In a recent landmark judgement titled "The Commissioner Inland Revenue and others v. Mekotex (Pvt.) Limited and others" (PLD 2024 Supreme Court 1168), the Honourable Supreme Court held, as under: 'This presumption is rooted in the rule of fairness, as altering accrued rights and obligations retrospectively is often considered unfair. Since the legislature is not expected to act in an unfair manner, it becomes essential to closely scrutinize a law that appears to have such an effect, ensuring that this was indeed the legislature's intent. Thus, the legislature is presumed not to have intended to alter the law applicable to accrued rights and obligations or past events and transactions unless a clear contrary intention is expressed.[5] ...Therefore, in our jurisdiction, the established principles for interpreting laws that have or appear to have retrospective effect are as follows. Every statute that relates to substantive rights and obligations should be deemed prospective unless, by express provision or necessary implication, it has been given retrospective effect. Courts must lean against giving a statute retrospective effect that affects vested rights and/or past and closed transactions by adhering to two rules: first, if two interpretations are reasonably possible, the one that saves vested rights and/or past and closed transactions should be adopted; and second, no statute should be construed to have retrospective effect to a greater extent than its language necessarily requires.[6] Although vested rights may be affected and taken away by express provision or necessary implication, past and closed transactions can be disturbed and reopened only by express provision.[7] This is because, as noted above, the greater the unfairness, the more explicit the legislature's intent must be. ... A statute is considered retrospective if it takes away or impairs any vested right already acquired under the then existing law or creates a new obligation or disability in respect of a transaction that is already past and closed.[8] In other words, a statute that does not affect vested rights or create new obligations regarding past and closed transactions cannot be said to be retrospective.[9] Similarly, a statute that extinguishes, by repeal of an existing law, a bare, abstract, inchoate or contingent right is not deemed to be retrospective, and such rights do not survive the repeal of the law under which they existed.[10] ... As for vested rights, the legal position is also well settled. A right vests when all the facts required by law to establish that right have occurred. In other words, when all the facts necessary to create a right have occurred, the right is said to be "vested". A right remains inchoate and contingent when some, but not all, of the investitive facts have occurred. A "vested right" is, therefore, one that is absolute, complete and unconditional, with no obstacles to its exercise. It is immediate and perfect in itself, not dependent upon any contingency'.[11] [emphasis supplied] As elucidated in the jurisprudence examined above, an amendment in law will operate prospectively if it affects substantive rights unless the legislature expressly provides for retrospective application. Given that substantive rights cannot be taken away without clear legislative intent, any modification that alters a person's entitlement must be presumed to have future applicability, ensuring fairness and preventing undue prejudice. Conversely, an amendment in law operates retrospectively if it pertains purely to procedural matters, such as changes in the forum, mode of trial, or rules of investigation, unless it impacts vested rights or causes injustice.
Procedural laws are generally presumed to have retroactive applicability unless expressly stated otherwise or if their application would disturb past and closed transactions, create new obligations, or impair existing rights.
7. In order to address the first query framed by this Court, the following question will also need to be examined, namely, whether bail in a bailable offence is merely a matter of procedure or a substantive right. There is not much jurisprudence on the subject, but this Court found two cases which may be applicable. In "Emperor vs Shreekant Pandurang Ketkar" ((1943) 46 Bom. L.R. 50 (FB)), the Full Bench of the Bombay High Court held that: 'The contention is that certain rights relating to the trial, viz. trial by jury, the right of appeal in case of conviction, and even the right of bail throughout the pendency of the criminal proceedings, are substantive and vested rights in the accused which could not be taken away by changing the procedure after the commencement of the criminal proceedings. On this point reliance has been placed not only in the arguments before us but also in the several judgments recently given by other High Courts on the analogy between civil actions and criminal proceedings. It may be taken as established that a right of appeal, a right to be tried by jury and even a right to get bail are substantive rights'. [emphasis supplied] In "State (Govt. Of Nct Of Delhi) vs Pankaj Yadav S/O Sh. Braham Dutt Yadav",[12] the amendment made to Section 354 of the Indian Penal Code ("IPC") was the same as the amendment under scrutiny. The Delhi District Court held that: 'After the amendment, making S. 354 IPC cognizable and non-bailable, the substantive right of the accused persons has been affected' and 'the procedural law affecting substantive right of accused has to be presumed to be prospective in nature and applicable only to offences committed subsequent to the amendment'. [emphasis supplied]
8. Drawing upon the aforementioned settled principles of law as examined hereinabove, it is held that the amendment made to Section 43 of PECA through the Amendment Act whereby offences under Sections 13 and 14 of PECA have been converted into non-bailable offences is not merely procedural but substantive in nature. Therefore, the same will apply prospectively because the grant of bail in bailable offences is an indefeasible vested (substantive) right to be granted as a matter of right,[13] it is absolute and unconditional, with no contingencies affecting it. Reason being that although bail is sought under the rules of procedure, i.e., the Code, but it pertains to the liberty and movement of the accused and the Amendment Act effects the said rights of the accused by making a previously bailable offence and converting it into non-bailable, thereby affecting the substantive right of the accused, i.e., to be released forthwith as a matter of right. To this end, it is trite, as expounded in the aforementioned cases that substantive right cannot be taken away or impaired retrospectively and any retrospective application of the Amendment Act will disturb the vested right of the accused and create legal unfairness, making it impermissible under the settled principles of jurisprudence. As such, the Amendment Act, to this extent, will only apply prospectively. Answered in the above terms.
9. Even otherwise, neither of the provisions, namely, Sections 13 and 14 of PECA, whether before the Amendment Act came into force, or after, fall within the confines of the prohibitory clause like the provisions of offence in terms of Section 419 and 468 of the PPC, which also do not attract the prohibition contained in subsection (1) of Section 497 of the Code. In "Syed Muhammad Ali Jaferi v. The State and another" (2025 SCP 61), it was held that 'the offences alleged in the FIR fall outside the prohibitory clause of section 497 Cr.P.C ... Grant of bail in suchlike cases is a rule and refusal an exception'.[14] The petitioners have been behind bars since 07.11.2024 and are no longer required by the investigating agency for further investigation. There is no proof available with the prosecution that the petitioners will either abscond or tamper with the prosecution evidence. No exceptional circumstance has been pointed out to refuse the concession of bail to the petitioners.
10. For the foregoing reasons, both Crl. Misc. No.10519-B of 2024, titled "Muhammad Rizwan Vs. The State and another"; and, Crl. Misc. No.10278-B of 2024, titled "Irfan Ali Vs. The State and another" are also allowed, and the petitioners, namely, Muhammad Rizwan, and Irfan Ali, are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of PKR. 1,000,000/- (rupees one million only) each, with two sureties each, in the like amount, to the satisfaction of the learned Trial Court.
11. Before parting with this order, it is clarified that the aforementioned reasoning qua prospective effect of the Amendment Act is only to the extent of conversion of bailable offences into non- bailable offences in Section 43 of PECA and should not be misconstrued as interpretation of any other provision.
12. It is further clarified that the observations enumerated herein to the extent of touching the facts of the case, and not the interpretation of law, are tentative in nature and restricted only to the extent of these particular petitions, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
1. See "Mazhar Ali v. The State and another" (2025 SCMR 318); and, "Abdul Qadir alias Ali and another v. The State" (2022 YLR Note 22 Sindh).
2. Also see "Alam Zeb and another vs. the State and others" (PLD 2014 Supreme Court 760).
3. See "Muslim Commercial Bank Limited v. Punjab Labour Appellate Tribunal through Chairman, Lahore and others" (2025 SCMR 303)
4. This case was cited with approval in "Muslim Commercial Bank Limited v. Punjab Labour Appellate Tribunal through Chairman, Lahore and others" (2025 SCMR 303).
5. Footnote reproduced: Nabi Ahmed v. Govt. of West Pakistan PLD 1969 SC 599; C.I.T. v. Vatika Township (2015) 1 SCC 1 (5MB); L'Office Cherifien v. Yamashita-Shinnihon Steamship Co (1994) 1 AC 486 and Secretary of State v. Tunnicliffe (1991) 2 All ER 712.
6. Footnote reproduced: Nagina Silk Mill v. Income-Tax Officer PLD 1963 SC 322 (5MB); Province of East Pakistan v. Sharafatullah PLD 1970 SC 514; C.I.T. v. EFU Insurance Co. PLD 1982 SC 247; Ghulam Hyder Shah v. Chief Land Commissioner 1983 CLC 1585 + Chief Land Commissioner v.
Ghulam Hyder Shah 1988 SCMR 715; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 (5MB) and Muhammad Hussain v. Muhammad 2000 SCMR 367 (5MB).
7. Footnote reproduced: Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 (5MB) and Zila Council Jehlum v. Pakistan Tobacco Company PLD 2016 SC 398 (5MB). See also Shahnawaz (Pvt.) Ltd. V. Pakistan 2011 PTD 1558 (DB) Kar.
8. Footnote reproduced: Zaibun Nisa v. Land Commissioner PLD 1975 SC 397 and Yusuf Abbas v.
Ismat Mustafa PLD 1968 Kar 480 (Craies on Statute Law, Sutherland Statutes and Statutory Construction and Halsbury's Laws of England are cited on the point in Yusuf Abbas).
9. Footnote reproduced: Yusuf Abbas v. Ismat Mustafa PLD 1968 Kar 480.
10. Footnote reproduced: Lalji Raja and Sons v. Firm Hansraj Nathuram (1971)1 SCC 721 (5MB). In this case, it was observed: 'That a provision to preserve the right accrued under a repealed Act "was not intended to preserve the abstract rights conferred by the repealed Act...It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute"-see Lord Atkin's observations in Hamilton Gell v. White [1922] 2 K.B. 422. The mere right, existing at the date of repealing statute, to take advantage of provisions of the statute repealed is not a "right accrued" within the meaning of the usual saving clause-see Abbot v. Minister for Lands [1895] A.C. 425 and Ogden Industries Pty. Ltd. v. Lucas [1969] 1 All E.R 121.'
11. Footnote reproduced: Govt. of Punjab v. Kamran Bashir 2022 PLC (C.S.) 6 (FB) Lah (Several domestic and foreign cases, as well as legal dictionaries, encyclopedias and jurisprudential academic treatises, are cited in it on the point)] Vested right are thus free from contingencies, but ordinarily there are always specific occasions and circumstances under which such vested rights may be exercised.[Nabi Ahmed v. Govt. of West Pakistan PLD 1969 SC 599; Zaman Cement Co. v.
CBR 2002 SCMR 312 and Asdullah Mangi v. PIA Corporation 2005 SCMR 445.
12. https://indiankanoon.org/doc/13449242/?type=print
13. See "Alam Zeb and another vs. the State and others" (PLD 2014 Supreme Court 760); and, "Mian Mahmud Ali Qasuri & others v. The State" (PLD 1963 Supreme Court 478).
14. Also see "Ahmad Shahzad v. The State and another" (2023 SCMR 679); "Muhammad Ajmal v. State and another" (2022 SCMR 274); and, "Ahmad Khalid Butt v. The State and another" (2021 SCMR 1016).