ORDER SHEET
IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.
Criminal Bail Application No.S-995 of 2016
Date of hearing: 06.01.2017.
Date of decision: 06.01.2017.
Applicant: Nisar Ahmed through Mr. MasoodRasoolBabar Memon, Advocate.
Respondent: The State through Mr. Aurangzeb Talpur, Standing Counsel.
O R D E R
KHADIM HUSSAIN TUNIO, J: - Through captioned application, the applicant seeks post arrest bail in crime No.26 / 2016 of PS FIA Crime under section 161 PPC r/w/ section 5 (2) PCA, 1947.
2. Briefly facts of the case as unfolded in FIR are that complainant SubInspector Abdul HameedQureshi on complaint of one Rashid Ali that Line Superintendent of Nazir Ahmed Chandio, (Incharge SDO) HESCO Sub-division Chamber came to village and demanded bribe amount, on his refusal applicant / accused issued detection bill of Rs.19012/- and said to him that electricity meter is low, forcibly changed his electricity meter and recovered Rs.11000/- as money of demand notice. Applicant Nisar Ahmed Chandio and Line man Ali Nawaz Umrani for changing the electricity meter again demanded bribe amount and due to compulsion he paid Rs.1000/- to them which they kept in their pocket and again demanded Rs.8000/- more. On refusal, they took away the meter without installing the same.
3. Consequently, the complainant was agreed to pay said illegal gratification and made complaint to the competent authority, thus, in supervision of Civil Judge and Judicial Magistrate-I, Chamber conducted trap / raid, therefore, the alleged recovery was effected from the applicant / accused, for which instant FIR was registered.
4. Mr. MasoodRasool Babar, learned counsel for applicant urges that there is five hours un-explained delay in lodging the FIR; that applicant is innocent and falsely been implicated by the FIA officials due to non-payment of monthly; that per FIR, no complaint was made by complainant as to demand of alleged tentative money, FIR shows that the complaint was only made for illegal removal of electricity meter; that no any number of reference/account of alleged meter is disclosed in the FIR; that no documentary evidence collected during the course of investigation which transpire that the alleged complainant is consumer of any electricity meter; that no any alleged tainted money recovered from applicant and same has been foisted upon him; that no personal search was conducted by the learned Magistrate per memo of recovery; that the bills and other documents attached with the alleged complaint pertaining to the electricity meter, same do not transpire the name of complainant but same are in the name of one Ali Muhammad; that none had witnessed while passing the tainted money to applicant by the alleged complainant per memo; that no any time, date and place of demand of alleged illegal gratification disclosed in FIR, which creates serious doubt in the prosecution case; that all the PWs are government officials and interested witnesses; that the offence under section 161 PPC is bailable while the section 5 (2) of PCA 1947 carries seven years punishment and does not fall within the ambit of prohibitory clause of section 497 Cr.P.C.
5. On the other hand, Mr. Aurangzeb Talpur, learned Standing Counsel for State vehemently opposed the grant of bail application and argued that the applicant is real culprit, he was apprehended raid handed and tainted amount was recovered from his possession in presence of learned Magistrate. He lastly argued that there is sufficient material on record to connect the applicant with the commission of alleged offence, therefore, he prayed that the application may be dismissed.
6. After minutely considering the contentionraised by the learned counsel for the applicant and carefully perused the material available on record, it contemplates that a raid was conducted at the time when an illegal gratification was settled and agreed to be paid. It also contemplates from the record that the alleged FIR is lodged with the delay of five hours; as such due deliberation and consultation on the part of complainant cannot be ruled out. It is pertinent to mention here that keeping the applicant behind the bar as a matter of punishment, would not serve any useful purpose, as thechallan has been already submitted before the learned trial Court and present applicant has been remanded to custody, he is no more required for further investigation. Applicant is government servant and there is no apprehension of tempering with the prosecution evidence as well as the material witnesses, who are interested one. Be that as it may, I am fortified in my view with the case law reported in ‘Bashir Ahmed v. The State’ (2001 SCMR 634), ‘Sameen Jan (NAIB TAHSILDAR) and another v. the State’ (PLD 2011 SCMR 509), ‘Usman Ahmed v. The State’ (SBLR 2015 Sindh 1116), ‘Dr. Iftikhar Ahmed Seehar v.The State’ (2014 YLR 1385), ‘Muhammad Sulleman v.The State’ (2013 P Cr. L J 1051), ‘Muhammad Waheed v.The State and another’ (2012 MLD 1945), ‘Nazar Muhammad v.The State’ (2003 P Cr. L J 175), ‘Kodomal and another v. The State’ (2001 P Cr. L J 1789), un-reported cases / orders passed in Cr. B.A No.S-993 of 2016 (Re. KelashMalhi v. The State) and Cr. B.A No.S-1219 of 2015 (Re. Muhammad MalookJatoi v.The State) by this Court.
7. In light of above discussion and circumstances the applicant has succeeded to make out his case for grant of post arrest bail within the ambit of section 497(2) Cr.P.C., therefore, he was admitted to bail, subject to his furnishing solvent surety in the sum of Rs.2,00,000/- (Two hundred thousand only) and PR bond in the like amount, to the satisfaction of trial Court. Above are the reasons for my short order dated 06.01.2016.
JUDGE
*Abdullah Channa/P.S*