2007 PLP 345 (YLR)

TARIQ SHAMIM, J.-Through this petitioner seeks bail before arrest in case F.I.R. No.22 dated 13-4-2006, registered under section 161, P.P.C. and 5(2)47, P.C.A., at Police Station ACE Circle Faisalabad.

2. Brief facts of the case are that the petitioner, who is a constable, is alleged to have received Rs.70,000 as bribe from the complainant on the pretext of procuring his appointment as Lamberdar through concerned officers.

3. Learned counsel for the petitioner contended that two inquiries in the case were held by the Anti-Corruption Establishment and both inquiries were dropped as the allegations of the complainant were found to be baseless; that legal opinion was sought from the Deputy Director (Pros.), who in the report submitted on 30th of November, 2005 opined that the recommendations for registration of a case against the petitioner appear to be premature, hence could not be endorsed; that the complaint against the petitioner was tiled after a delay of one year for which no plausible explanation was given; that the complainant of the case as well as the witnesses mentioned in the F.I.R. were, in fact, involved in a number of criminal cases, hence no credibility could be attached to their statements; that the provisions of section 161, P.P.C. were not applicable to the case of the petitioner, that it was not a case of raid but a transaction between the two private parties; that the version given in the F.I.R. did not appeal to' the mind as a police constable could not have possibly procured appointment of the petitioner as Lamberdar and that the offences mentioned in the F.I.R. were not hit by the prohibitory clause of section 497, Cr.P.C., hence the petitioner was entitled to the concession of pre-arrest bail.

4. On the other hand, learned counsel appearing on behalf of the State assisted, by the learned counsel for the complainant contended that the first two inquires referred to by the learned counsel for the petitioner were not conducted in accordance with law, hence the necessity of initiating third inquiry arose; that the petitioner was duly nominated in the F.I.R. and specific allegation of receiving illegal gratification had been levelled against him; that the witnesses mentioned in the F.I.R. in their statements under section 161, Cr.P.C. fully supported the prosecution case; and that the offences mentioned in the F.I.R. were non-bailable offences, hence the petitioner did not deserve the extraordinary concession of pre-arrest bail.

5. I have heard the learned counsel for the parties and perused the record.

6. Admittedly, there is a delay of one year in lodging of the complaint. The reason as to why the complainant refrained from lodging the complaint for such a long time has not been explained. The petitioner was exonerated in two inquiries held by the Anti-Corruption Department and after both the inquiries had been dropped, the necessity for initiating third inquiry has not been adequately explained. The only explanation provided by the learned counsel for the complainant is that the first two inquiries were not conducted in accordance with law which is belied by the fact that on the application filed by the petitioner against initiation of third inquiry the Director-General Anti-Corruption Establishment raised serious objection to the same. In the report submitted by the Deputy Director (Pros), it was observed that the alleged transaction did not relate to the official duties of the petitioner in his capacity as public servant and that the registration of the case against the petitioner appeared to be premature. The contention of the learned counsel for the petitioner that the petitioner had been roped in the case on account of party faction by the complainant also finds support from the said report. The complainant himself appears to be involved in a number of criminal cases, hence no much credibility can be attached to the complaint or the statement made by him before the Investigating Officer. Prima facie, the provisions of section 161, P.P.C. are not applicable to the case of the petitioner. Even otherwise, the petitioner is a constable, who by no stretch of imagination could have procured the appointment of the complainant as Lamberdar from the concerned authority. The case in hand is not a case of raid conducted by a Magistrate but a transaction which took place between the parties. Further, the offences mentioned in the F.I.R. are not hit by the prohibitory clause of section 497, Cr.P.C., hence grant of bail is a rule as held by the Honourable Supreme Court in Tariq Bashir's case (PLD 1995 SC 34). Reference is also made to case of Zahoor Ahmed v. The State (2006 YLR 1567). The investigation of the case is complete, hence incarceration of the petitioner at this stage would not serve any useful purpose. Profitable reference can be made to the cases of Nadeem Asghar Kaira v. The State (2006 YLR 164) and Syed Abdus Salam v. The State (2004 MLD 1947).

7. For what has been discussed above, this petition is accepted and the ad interim pre-arrest bail granted to the petitioner vide order dated 11-8-2006 is confirmed subject to his furnishing fresh bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. S.M.B./U-8/L Bail granted/confirmed.