IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No.S-761 of 2015

Date of hearing              :         03-12-2015

Mr. Qurban Ali Malano Advocate for applicant.

Mr. Syed Sardar Ali Shah APG.

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ORDER

SHAHNAWAZ TARIQ,J:-  Through captioned post-arrest bail application, applicant Imtiaz Ali has impugned order dated 11.09.2015,  whereby his earlier bail application was declined by the Court of learned Special Judge, Anti-Corruption (Provincial) Sukkur.

2.     The relevant facts narrated in F.I.R are that complainant reported Anti-Corruption Establishment, Ghotki that applicant has demanded Rs.15000/- as illegal gratification. Raiding party under supervision of Magistrate conducted raid and recovered Rs.6000/- from the possession of applicant, hence instant F.I.R.

3.     Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated by the complainant in the instant FIR; that applicant was posted as Tender Clerk and he has nothing to do with the issue of return of security deposits; that tainted currency notes of Rs.15000/- were mentioned in the complaint but during search only Rs.6000/-  were recovered from the possession of the applicant; that raiding party was not available at the spot nor they witnessed the incident; that alleged offence does not fall within the restraining clause of Section 497 (1) Cr.P.C. Learned Counsel relied upon the case of Saleem Jan (Naib Tehsildar and another v. The State and another(PLD 2011 Supreme Court 509), Muhammad Suleman v. The State(2013 P.Cr.LJ 1051)Dr. Iftikhar Ahmed Seehar v. The State (2014 YLR 1385) and Nazar Mohammad v. The State (2003 P.Cr.LJ 175).

4.     While controverting the above submissions, learned APG contended that applicant was apprehended at the spot and tainted amount of Rs.6000/- was recovered from his possession along with other documents as such applicant is not entitled for grant of bail. Mukhtiar Hussain Lashari, Circle Officer, Investigating Officer, P.S Anti-Corruption Establishment, Ghotki, is present in Court and submitted that after conclusion of the investigation, he has already submitted Challan before concerned Court and applicant is no more required for investigation.

5.     Heard arguments advanced by learned Counsel for the parties supported with case law and perused the record minutely.

6.     Indeed, applicant was posted as Tender Clerk in Town Committee, Ubauro, while complainant moved application to Administrator of Town Committee for return of security deposit amounting to Rs.4,50,000/- which was marked to the Accountant for taking further action and apparently applicant had no direct nexus with the issue of refund of security deposit. Per averments of F.I.R, complainant had paid Rs.30,000/- to applicant on 31.08.2015, while an amount of Rs.15000/- was to be paid on 01.09.2015. Per mashirnama15 currency notes with denomination of Rs.1000/- each, were allegedly tainted by the ACE. Raid was conducted under the supervision of Magistrate and complainant went inside of the office and made payment of the tainted currency notes to the applicant but the raiding party remained away/outside of the office of applicant. Neither raiding party heard the conversation made by the complainant with accused nor they witnessed the factum of payment of alleged tainted money. However, during search of accused instead of Rs.15000/-, only Rs.6000/- were recovered from his possession which requires serious consideration. Per Investigating Officer Challan has been submitted and accused is no more required further for investigation as such his further detention in the jail will not serve any useful purpose. It is well settled that concession of bail ought not to be withheld by way of premature punishment, while applicant is behind the bars for 04 months but prosecution has failed to examine a single witness to substantiate the charge against accused. The alleged offences under section 161 PPC R/W section 5(2) Act-II of 1947, are neither punishable for death sentence not imprisonment for life or 10 years, hence same do not fall within the prohibitory clause of Section 497(1) Cr.P.C.

7.     In the case of Saleem Jan (Naib Tehsildar) and another v. The State and another (Supra), the honourable Supreme Court of Pakistan has observed as follows:-

“Allegations leveled against the petitioners(Public Servants) pertained to their roles in attestation of a mutation on the basis of a Permanent Transfer Deed which was subsequently found to be a fake document. Investigation of the case had already been finalized and, thus, physical custody of the petitioners was not required at this stage for the purpose of investigation. Continued custody of the petitioners in jail in circumstances was not likely to serve any beneficial purpose at this juncture. Concession of bail ought not to be withheld by way of premature punishment. Applicant was enlarged on bail in the circumstances”.

In the case of Mohammad Suleman v. The State (Supra), it was observed that allegation against accused (Public servant) was that he demanded illegal gratification from the complainant, and after negotiations, part payment was made to accused, while remaining amount was to be paid to him at the later date. Members of trap party did not hear the conversation between the accused and the complainant party at the time when alleged illegal gratification was settled. Part payment made by complainant was recovered from the accused during the raid, however it was yet to be determined whether it was the part payment of illegal gratification allegedly settled between the parties.”

In the case of Dr. Iftikhar Ahmed Seehar v. The State (Supra) it was observed that accused being public servant caught by members of raiding party while taking a illegal gratification. Trapping party did not hear conversation between accused and complainant when alleged illegal gratification was settled and agreed to be paid, accused was enlarged on bail.

In case of Nazar Mohammad v. The State (Supra), it was observed that during raid Rs.1000/- were recovered from the possession of accused and he had been behind the bars for the last about one month and 20 days. Accused was no more required for further investigation by the police. Offence alleged against accused did not fall within the prohibitory clause of Section 497(1) Cr.P.C. Accused was enlarged on bail accordingly.

8.     For the fore going facts and circumstances supported with identical case law, applicant has succeeded to make-out a case for grant of bail on the ground of further inquiry as contemplated in section 497(2) Cr.P.C. Consequently, applicant is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty thousand) and PR bond in the like amount to the satisfaction of trial Court.

9.     The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits.

                Bail application stands disposed of in the above terms.

                        JUDGE

Ihsan