A case analysis: Sheraz Khan Vs The State, etc. reported as HCDC/C-12
In this case, the complainant had been the subject of an online scam, whereby s/he agreed to transfer the defendant Rs.28,57,230 for the promise of a bank transfer of $1,900,000. Given that both parties met on Facebook, it is unsurprising that the Court was critical of the complainant for their greed and naivety, which led them to fall for the fairly obvious scam.
Nonetheless, the important result was that the perpetrators of the scam were identified, which is often the most difficult task in such cases.
In the high court, an application was made for post arrest bail. In determining whether or not to grant such bail, the Court made several important observations.
The key contention of the petitioner (the accused) was that offences under the Pakistan Penal Code (PPC) could not be investigated by the Federal Investigation Agency (FIA) along with offences under the Prevention of Electronic Crimes Act, 2016 (PECA).
As outlined between paragraphs 7-9 of the judgment, where an offence can be tried under two or more different statutes, it is wrong to assume that an action against the accused can be brought under all of those statues within the same proceedings.
Therefore, a court constituted under the PECA cannot try offences of the PPC, and likewise, a court constituted under the PPC cannot try offences under the PECA.
There is legislation which permits for the holding of joint trials, but such legislation expressly permits so. i.e. Section 17 and Section 21-M of the Anti-Terrorism act 1997.
Therefore, the petitioner’s arguments were technically correct. Whilst the purpose of the petition was to seek and obtain post arrest bail, the helpful analysis of the Court in this case serves as an important reminder to practitioners who see more than one statute assisting their clients.
With the rapid growth of the fintech sector in Pakistan, and the laws which govern it, the necessity for legal professionals to be sufficiently aware of how to protect their clients against offences relating to cyber crime, is essential.
For legal advice in corporate or commercial matters, contact Asma Hamid Associates. We are specialist commercial litigation advocates who represent clients all over Pakistan.
Written by: Zubair Mughal