2017 PLP 230 (YLRN)

SHAHNAWAZ TARIQ, J.

With this common order, I intend to dispose of three bail applications referred supra, whereby applicants have impugned order dated 26.05.2016, passed by learned Special Judge Anti-Corruption (Provincial), Karachi and their earlier bail applications were declined.

2. Relevant facts in nutshell that complainant moved application to Deputy Director, Anti-Corruption that he is working at Estate Agency under the name of Top Line Property at Gulistan-e-Jauhar, he visited office of Mukhtiarkar, Gulshan-e-lqbal and met with clerk Irfan and asked him to provide photocopy of Form VII of Survey No.171, 172 Deh Gujhro, Entry No.102, dated 10.09.1992 and Irfan demanded Rs.60,000/- however, Rs.35,000/- were settled to be paid after providing said photocopy. On 10.05.2016 he again visited said office and also met lqbal Abbasi and he assured him to provide such copy on payment of Rs.35,000/-. On 11.05.2016, a raiding party headed by Juridical Magistrate, Karachi-East was constituted and mashirnama dated 11.05.2016 at 1420 hours was prepared whereby 35 tainted notes of Rs.1000 each denomination along with their numbers were mentioned.

3. Learned counsel for applicant contended that applicants are innocent and have been implicated falsely in the crime with ulterior motive; that applicant is working in State Agency and neither he was owner of the said property nor was authorized to obtain certified copy from the concerned office; that applicants have no nexus with the said record, hence question of issuance of photocopy does not arise at all; that per mashirnama 35 notes of Rs.1000 denomination were handed over to him, however, at the time of search only 20 notes of Rs.1000 denomination were recovered and such mashirnama was also prepared at 1600 hours; that there is no mention about remaining 15 notes of Rs.1000; that conversation made between the parties was at the some distance, hence raiding party was unable to hear them: that challan has been submitted and learned trial Court has taken cognizance. Learned counsel relied upon the case law reported in the case of Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708); Sameej Jan (Naib Tehsildar) v. The State (PLD 2011 SC 509) and Tariq Bashir v The State (PLD 1995 SC 34).

4. While controverting the above submissions, learned A.P G. vehemently contended that applicant Aijaz Ali Solangi and lqbal Ahmed Kalhoro were apprehended on the spot and tainted amount was also recovered from their possession, hence they are not entitled to concession of bail, however, he extended no objection for grant of bail to applicant Irfan Haider.

5. Heard learned counsel for applicants, learned APG and perused the material available on record, which emanates that complainant has been working in an Estate Agency and he approached applicants for obtaining photocopy of Form VII of Survey Nos. 171, 172 Deh Gujhro, Entry No. 102 dated 10.09.1992. Admittedly neither applicant is owner of the said property nor he was authorized by the actual owner to obtain certified copy from the concerned office of Mukhtiarkar. Per mashirnama of handing over tainted money dated 11.05.2016 at 1420 hours, at the time of raid 35 currency notes of Rs.1000 each denomination were handed over to the complainant. Conversely, per mashirnama of recovery dated 11.05.2016 at 1600 hours, during search of applicant lqbal Ahmed Rs.5000/-, while Rs.15000/- were recovered from possession of applicant ljaz Ahmed Solangi and in all 20 currency notes of Rs.1000 denomination were recovered but there is no plausible explanation for non-recovery of remaining 15 tainted currency notes from possession of applicants which also requires serious consideration. Indeed, raiding party was available at some distance from the place of occurrence and it was not possible for them to hear the conversation made between the complainant and applicants, and even words uttered correctly while passing money to applicants which also requires further inquiry for which recording of evidence of witnesses is essential. Moreover, offence under section 161, P.P.C. is for three years or fine or both. Likewise, offence under section 5(2) Act-II, 1947, is also punishable for seven years or fine or both. It is well settled that while considering the question of bail, Court should consider the minimum aspect of the sentence provided for the alleged offence in schedule. In present case, if learned trial Court awards only sentence of fine then applicants could not be compensated for the period of their detention for the same offence, thus they could be deprived from post-arrest bail which is contrary to the right of liberty of a person. Alleged offences do not fall within the ambit of restraining clause of section 497(1), Cr.P.C. and in such nature cases bail should be granted as a matter of right and refusal is just exception. Furthermore, investigation has been finalized and physical custody of applicants is no more required further, hence their detention will not be beneficial for prosecution. Applicants are serving as junior clerks in office of Mukhtiarkar, thus there is no probability of misusing of concession of bail or disappearance from the trial.

6. Considering the above facts and circumstances, applicants have succeeded to make out their case for grant of bail on the ground of further inquiry as contemplated in section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail upon furnishing a solvent surety in the sum of Rs.100,000/- each and PR bonds in the like amount to the satisfaction of learned trial Court.

7. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. WA/I-36/Sindh Bail allowed.