IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail Application No.S-472 of 2021
Applicant :
Allah Ditto s/o Ghulam
Mustafa Bhutto,
Through Mr.Shabbir Ahmed Bozdar, advocate.
Respondent :
The State,
through,
Mr. Talib Hussain Siyal, Addl. P.G
--------------
Date of hearing
: 13.08.2021
Date of order : 13.08.2021
--------------
ORDER
ZAFAR
AHMED RAJPUT, J.- Having
been rejected his first criminal bail application bearing No. 40 of 2021 by the
trial Court viz. Special Judge Anti-Corruption (Provincial) Sukkur Division,
Sukkur vide order, dated 05.05.2021; second criminal bail application bearing
No. S-286 of 2021 by this Court vide order, dated 11.06.2021, as not pressed on
the ground that the parties had entered into compromise; third criminal bail application bearing No. 44 of
2021by the trial Court vide order, dated 14.06.2021; forth criminal bail
application bearing No. S-379 of 2021by this Court vide order, dated
28.06.2021, as withdrawn on the ground that the applicant would file a bail
application before the trial Court on fresh ground and fifth criminal bail
application bearing No. 48 of 2021 by the trial Court vide order, dated
17.07.2021, applicant/accusedabove-named through thiscriminal bail application
seekspost-arrest bail in Crime/F.I.R. No.03 of 2021, registered at P.S. ACE,Ghotki
under sections 161, 34, P.P.C., read with section 5(2) Act-II of 1947.
2. Briefly stated,the facts of the prosecution
case are that, on 26.04.2021, complainant Saleh Muhammad lodged the aforesaid
F.I.R. alleging therein that his cousins and he had harvested wheat on their 27
acres agricultural land situated in Deh Dilwaro. Since he was in need of empty
bags (Bardano), he along with Ghulam Qadir met with In-charge Food
Centre, Ubauro, namely, Muhammad Akmal Dashti and requested him for 1000 empty
bags, who demanded Rs. 100/= per bag and he immediately paid him before said
witness Rs. 10,000/= as illegal gratification. As that time empty bags were not
available, he assured for delivery after few days. After 2/3 days, he along
with said witness met with DFC Allah Warayo who also demanded illegal
gratification of Rs. 1,00,000/=, he paid Rs. 40,000/= to him before said
witness, who directed In-charge Food Centre, RantiAllah Ditto (applicant)to
hand over 1000 empty bags after receiving Rs.50,000/=, he then paid Rs. 5,000/-to
applicant in presence of said witness and told him to pay remaining amount on
26.04.2021 and lodged the F.I.R. After lodging of the F.I.R., Circle Officer,
ACE, Ghotki arranged a trap on 26.04.201 in presence of Judicial Magistrate and
recovered tainted amount of Rs. 45,000/= from the applicant.
3. Learned
counsel for the applicant has contended that the applicant is innocent and has
falsely been implicated in the case by the complainant with mala fide intention
and ulterior motive; that the trap party did not hear the conversation of the
applicant and the complainant for what purpose, he paid the amount to the
applicant, even the trap party did not see handing over the tainted amount to
applicant by the complainant; that the main allegation of demanding and partly
receiving illegal gratification is against the co-accused Allah Warayo and
Muhammad Akmal, who have already been admitted to bail by the learned trial
Court vide orders dated 03.05.2021; that one of the prosecution witness,
namely, Ghulam Qadir has already filed his affidavit to the effect that has no
knowledge about the case; that growing 2500 kilograms wheat in 27 acres land is
impossible, as the complainant wanted 1000 empty bags for wheat, which does not
appeal to a mind of a prudent man; that the alleged offence does not fall
within prohibitory clause of section 497, Cr.P.C.; that
the prosecution case is highly doubtful and ambiguous and therefore, guilt of applicant
requires further inquiry as envisaged under section 497 (2), Cr. P.C.
4. Per
contra, learned Addl. P.G while opposing grant of bail to applicant has
maintained that the applicant in furtherance of common intention along with
co-accused has committed the alleged offence; that after lodging of the FIR,
ACE recovered from the applicant tainted money in presence of a Judicial
Magistrate; that sufficient evidence is
availablewith the prosecution against the applicant to connect him prima
faciewith the commission of alleged offence and the deeper appreciation of
evidence is not permissible at bail stage under the law.
5. Heard the learned counsel for the applicant as
well as Addl. P.G and perused the material available on record with their
assistance.
6. It appears from the perusal of memo of tainted money
and trap report, dated 27.04.2021,prepared
by the Circle Officer, ACE Ayaz Hussain Memon and Ist Judicial
Magistrate, Ubauro, respectively, that the said C.O. handed over tainted
currency notes of Rs. 45,000/= to complainant in the Court of said Judicial
Magistrate for delivering the same to the applicant, then they came at main
gate, New Sarwar Cotton Factory, NHA, Ubauro where complainant and mashir Hadi
Bux were separated from the trap party. After some time, the said mashir
signaled the trap party to come in action. The trap party immediately responded
and managed to apprehend the applicant and recovered tainted money from his
left side pocket. As such, trap party neither witnessed the delivery of tainted
money by the complainant to applicant nor they did hear the conversation
between them in respect of handing over of the tainted money, Hence, it is yet
to be determined if the tainted money allegedly recovered by the trap party was
in fact illegal gratification paid by the complainant to applicant/ accused,
which is necessary to prove the charge of receiving illegal gratification by
the applicant/accused, as held by the Honorable Supreme Court of Pakistan in
the case of Bashir Ahmed v. The State(2001 SCMR 634) that the transaction
not only to the payment of bribe money to the accused by the complainant is to
be seen but also the conversation between them has to be heard by the members
of the raiding party. Under the circumstances, I have found the case of the
applicant one of further inquiry as envisaged under sub-section (2) of section
497 Cr.P.C.
7. It further appears that the applicant
is confined in judicial custody since 26.04.2021 and ACE has already submitted
the challan against him; therefore, he is no more required for investigation
and thus, his further detention will not serve any useful purpose. Co-accused
Allah Warayo and Muhammad Akmal have already been admitted to bail by the trial
Court. Besides, the offence under
section 161 P.P.C. is punishable up to three years and Section 5 (2) of the
Act-II of 1947 provides punishment up to seven years, hence the alleged offence
does not fall within the prohibition contained in Section 497 (1) Cr. P.C. and
grant of bail in a case not falling within the prohibitory clause of Section
497 Cr. P.C is the rule and its refusal is only an exception. It goes without
saying that in the absence of any exceptional circumstances, withholding of
post-arrest bail is not the intention of law. Law as emphatically available in
the criminal jurisprudence and repeatedly ordained by Superior Courts aims at
ensuring that the accused are made to be available for trial, but it has never
been, nor it can ever be, the intention of law to punish the accused for the
offence the trial whereof is still pending against him, as the concept of
punishment is essentially relatable to the conclusion of the trial.
8. Under the circumstances, I allow this application, the applicant /
accused is admitted to bail, subject to his furnishing a solvent surety in the
sum of Rs.50,000/= (Rupees Fifty Thousand Only) and PR Bond in the like amount
to the satisfaction of the trial Court.
9. Needless to mention here that the observations
made hereinabove are tentative in nature and would not influence the trial
Court while deciding the case of the applicant on merits and if applicant in
any manner tries to misuse the concession of bail, it would be open for the
trial Court to cancel his bail after issuing him the requisite notice.
10. Above
are the reasons of my short order dated 13.08.2021.