The petitioner, Safdar Iqbal, is seeking post-arrest bail in case F.I.R. No,313, dated 20-7-1999, registered at Police Station, Banni, District Rawalpindi, for the offence under section 25 of the Telegraph Act, 1885 and section 506, P.P.C. At the instance of complainant, Sh. Aminuliah; for an occurrence dated 11-7-1999, in which the petitioner is alleged to have made an obnoxious telephone call from Lahore at the complainant's telephone number at Rawalpindi and is alleged to have made threats to murder all the family members of the complainant.
2. The petitioner was arrested on 24-7-1999. His application for the grant of post-arrest bail has been dismissed by the Additional Sessions Judge, with the powers of Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975). Investigation is complete in which the petitioner has been found guilty and the challan papers have also been completed for the submission before the trial Court. The petitioner is connected with the offence as the complainant had got installed Callers Line Identification (CLI) system on his telephone and the obnoxious call received by the complainant from the petitioner on 11-7-1999 at 11-52 a.m. From Lahore has been traced to the telephone No,7418680, installed at Lahore, which is in the use of the petitioner.
3. It is contended by the learned counsel for the petitioner that the delay in lodging the F.I.R. Is not explained, the telephone number from which the call is stated to have made from Lahore is not in the name of the petitioner, and even otherwise it is not a proof that the obnoxious call was made by the subscriber of the telephone because the call could have been made by anyone from the telephone pole or by cutting the wire from outside the premises where the telephone is installed and even otherwise the tracing of the call to the telephone number installed at Lahore does not mean that the same was obnoxious or threatening and, therefore, it is a case of further enquiry.
Learned counsel has further contended that reading of the F.I.R. Shows that the offence of section 25 of the Telegraph Act, 1885 is not made out and the same falls under section 25-D of the Telegraph Act which creates a distinct offence providing a separate penalty and the same is not an offence provided in the Schedule of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the learned Additional Sessions Judge, Rawalpindi, enjoying the powers of Special Judge, illegally refused to grant bail to the petitioner amongst others, on the grounds, that the provisions of section 8 of Suppression of Terrorist Activities (Special Courts) Act, 1975 bar the grant of bail to an accused person who is believed to have been guilty of scheduled offence. It is submitted next that the offence as alleged against the petitioner is punishable with 3 years' imprisonment or with fine or with both and the same does not fall within the prohibitory clause of section.497, Cr.P.C., therefore, the petitioner is entitled to the grant of bail.
4. The contentions have been opposed by the learned counsel for the State as well as by the complainant. Learned counsel for the State while opposing the petition has submitted that the petitioner is in the habit of making such threats to the complainant-side and previously also he has been involved in similar cases by the complainant side and if released on bail, he is likely to repeat the offence. He has, however, admitted that as the investigation is complete, therefore, the person of the petitioner is no more required by the police for any further investigation. Learned counsel for the complainant while vehemently opposing the petition has submitted that the previous conduct of the petitioner has disentitled him to the grant of bail. In answer to a query posed by this Court, the learned counsel for the State has informed that the only material available against the petitioner is in the shape of the record of the Telephone Department, showing that the call on the abovementioned date was made from the abovesaid telephone number from Lahore, which is in the use of the petitioner. It is, however, admitted that the voice print of the petitioner is not available with the Telephone Department and the call was not recorded, therefore, whether the call was made by the petitioner or by someone else is a matter of further enquiry and the same can he determined by the trial Court only after recording of evidence. Similarly in the absence of any tape-recording of the relevant call, the obnoxious and threatening nature of the call is also a matter of further enquiry. We are also of the view that the offence as alleged against the petitioner does not fall within section.25 of the Telegraph Act, 1885 and falls within section 25-D of the said Act, which creates distinct offence providing a separate penalty and is not covered by section 25 of the said Act and section 25-D of the Act is not included in the Schedule of Suppression of Terrorist Activities (Special Courts) Act, 1975. Reference in this regard may, be made to Tariq Altaf v. District Magistrate, Lahore and 3 others 1994 PCr.LJ 1557 (Lahore) and Muhammad Tahir Abid v. The State and another 1993 PCr.LJ 1211 (Lahore).
5. In view of the fact that the matter is of further enquiry and that the offences as alleged against the petitioner, do not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner, in our opinion, is entitled to the grant of bail because the grant of bail in such-like cases is a rule and the exceptional circumstances, warranting declining of the same in the absence of any direct evidence connecting the petitioner with the commission of offence, so far do not exist.
6. In view of the above mentioned, the application is allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties, each in the like amount, to the satisfaction of the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.