P L D 1991 Peshawar 61 (PLP)

Date of hearing: 20th February, 1991. As a consequence of a raid conducted under the supervision of Mr. Iqbal Ahmad Mufti, Magistrate 1st Class, Peshawar, on 24‑1‑1991, at 5 P.M. Ijaz Ahmad, the accused‑petitioner herein, was arrested on the alleged recovery of tainted money from the counter of the Pakistan Railways at Peshawar Railway Station where he was performing the duties as Booking Clerk and was allegedly in his charge. Thereafter, on the basis of the raid report made by the learned Magistrate, a case was registered by the F.IA. Crime, Peshawar vide F.I.R. No.11 dated 24‑1‑1.991 at 7‑00 p.m. under sections 161, P.P.C. and 5(2), Prevention of Corruption Act, 1947.

2. The accused‑petitioner moved an application for his release on bail before the learned Special Judge (Central) Peshawar which was, however, turned down vide his order dated 3‑2‑1991. Hence the instant petition.

3. I have heard Mr. Abdul Latif Yousafzai, learned counsel for the petitioner and Mian Muhammad Ajmal, learned Deputy Attorney‑General for Pakistan on behalf of the State at length and also perused the record of the case with considerable degree of care.

4. It is contended on behalf of the petitioner that the tainted money was not recovered from the person of the petitioner and it was rather from the counter of a colleague of his, namely, Ismail Khattak who had temporarily gone out of the cabin and the petitioner, per force of circumstances, performed his duties too in his absence. It was also submitted that punishments provided for both the offences, under which the case is registered against him do not fall within the prohibitory clause of section 497, Cr.P.C. and the investigation having been completed, the petitioner is no longer required for any further inquiry. It was finally urged that the petitioner being a public servant, the process of obtaining sanction for his prosecution shall take some time and the petitioner having already been in custody for about a month, deserves the concession of bail.

5. As against this, the learned counsel for the State contended that the petitioner was exclusively incharge of the counter and his conduct, when viewed in the context of the statement of the complainant Muhammad Jamil, before as well as after the raid was conducted, goes a long way to connect the accused‑petitioner with the offence allegedly committed by him. He, however, conceded that the offences he has allegedly committed, do not fall within the prohibitory clause of section 497, Cr.P.C. but argued with a measure of vehemence that ,such a situation does not prima facie bestow on the accused‑petitioner to seek bail as of right and the way accused‑petitioner, serving in a department of public utility, conducted himself deserves to be viewed rather seriously and with strong hands.

6. I have given `my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.

7. A reference to the record reveals that the investigation stands completed and as such the accused‑petitioner having been sent to judicial lock‑up, his presence is no more required by the Investigating Agency. It is also as undisputed fact that sanction for the prosecution of the accused‑petitioner is required to be obtained from the competent authority which, as per available record, is yet to be received. The petitioner is a public servant and I do not feel that there can be any apprehension of his abscondence.

8. True the menace of corruption is too rampant to permit indulgence in exercising discretion in favour of releasing such a person on bail as is involved therein, but then the anti‑social activities constituting offences under section 161, P.P.C./5(2), Prevention of Corruption Act, 1947 as alleged against the petitioner, however heinous in nature these may be, do not furnish a sound judicial principle B whereby bail should be refused to an accused charged with the offences not falling within the prohibitory clause of section 497, Cr.P.C.

9. Such being the legal position, when it is too clear to permit any ambiguity with regard ‑to the punishment for the aforementioned offences being neither death nor imprisonment for life or 10 years, the Court keeping in view circumstances of a case, would generally lean favourably to exercise its discretion in granting, rather than refusing bail. Viewed in the perspective of the foregoing discourse, I am of the considered opinion that the concession of bail in the circumstances of the instant case, cannot be denied to the petitioner.

10. Resultantly, I hereby allow this petition and order that the accused‑petitioner shall be released on bail, provided he furnishes a bond in the sum of Rs.75,000 (seventy‑five thousand) with two local sureties of means in the like amount to the satisfaction of the learned Special Judge (Central), Peshawar. N.H.Q./1180/P Bail allowed.