2017 PLP 741 (YLR)

RASHEED AHMED SOOMRO, J.

Through instant bail application, applicants namely Najamuddin Bhatti and Tarique Hussain Khaskheli are seeking post arrest bail in Crime No.03 of 2016 of Police Station ACE Larkana registered for an offence under sections 161, 34 P.P.C. resident Section 5(2) Act-II of 1947. Brief facts of the prosecution case as narrated in the FIR are as under:-- "It is complained that I own a house measuring 450 Sq.fts. situated in Mohalla Allah Abad near Petrol Pump Larkana. The aforesaid house is registered in my name and I had applied for loan from NBP Main Branch Larkana against said house, but there was NOC of Map required from Sindh Building Control Authority Larkana. About 5/6 months back I went to the office of Sindh Building Control Authority Larkana where I met an officer namely Najam Bhatti and narrated him above facts. He demanded Rs.10,000/- as bribe and thereafter he directed me to deposit government fees Rs.9860/= in the bank for issuance of NOC and assured that the same would be issued. Then on 27.01.2016 I deposited fees Rs.9860/= through (Challan No.5 and produced the said challan before Najam Bhati, Officer of Sindh Building Control Authority Larkana. Then on 12.5.2016 I along with Zeeshan Ali son of Shamsuddin Khokhar went together to Inspector Tarique Khaskheli, who called my documents and after seeing them demanded illegal gratification of Rs.20,000/= for NOC on passing of map. On my request he agreed to receive Rs.15,000/= and I told him to prepare the documents I will give you Rs.15,000/-- on 16.5.2016 in the office. Whereas Inspector Tarique Khaskheli in collusion with Najam Bhatti, Officer of Sindh Building Control Authority have received illegal gratification from me and today according to promise Tarique Khaskheli, Inspector Sindh Building Control Authority will receive Rs.15,000/= as illegal gratification. I am complainant, investigation be made." After registration of FIR the trap party raided the office of applicants/accused and trapped applicant/accused Tarique Khaskheli showing recovery of tainted money lying on his table and so also arrested applicant No.1 Najamuddin from the same office. Bail plea moved on behalf of applicants/accused was declined by the trial Court vide order dated 25.5.2015, giving rise to filing of instant bail application. I have heard learned counsel for the applicants and learned ADPP appearing on behalf of the State as well as gone through the material brought on record. Mr. Imtiaz Ahmed Bhatti, advocate for the applicant No.1 Najamuddin mainly argued that the applicant No.1 is innocent and has been falsely booked in this case and no role has been assigned to him as admittedly neither he is said to have received the tainted money nor it was recovered from his table but he has been falsely implicated by the complainant with mala fide and ulterior motives in connivance with Anti-Corruption Department. On the other hand, Mr.Habibullah Ghouri, advocate for the Applicant No.2 Tarique Hussain Khaskheli argued that the applicants are serving as Building Inspector and Accountant respectively in the Sindh Building Control Authority and they are not competent to issue NOC as it domain of Regional Director and in fact the applicants are victim of enmity and personal grudge of Mohammad Parial Morio, Circle Officer ACE, Larkana because the Sindh Building Control Authority Larkana had issued notice to one Sajan Morio, the brother of above named C.O ACE Larkana, for payment of requisite government fees for approval of map of his house but he refused to make payment and Sindh Building Control Authority Larkana had refused to issue NOC or withdraw/cancel the notice therefore, in the background of such enmity, said Mohammad Paryal Morio, C.O. ACE Larkana has managed this false case against the applicants through fake complainant. Learned counsel further argued that after about 15 minutes of alleged delivery of tainted money, the trap party reached there and recovered tainted money from the table of Tarique Hussain Khaskheli thus it is admitted position, the trap party neither witnessed the delivery of tainted money nor they did hear conversion between the complainant and accused in respect of any receipt or delivery of tainted money. It is further argued that the case does not fall within prohibitory clause of section 497, Cr.P.C. Learned counsel for the applicants, relied upon cases reported in 1996 SCMR 1132, 2013 PCr.LJ 1051, 2014 YLR 1385 and PLD 2011 SC

509. Mr. Nadeem Tunio, learned ADPP for the State vehemently opposed the grant of bail to the applicants on the ground that they have committed offence against society. I have carefully considered the arguments advanced by learned counsel for the parties and perused the material brought on record. As regard role of applicant No.1 is concerned, it is only alleged in the FIR that about 5/6 months back he had demanded bribe from complainant for NOC and approval of Map of his house but neither the same was received by him nor any tainted money was recovered by trap party from applicant No.1 Najamuddin. As regards case of applicant No.2 Tarique Hussain is concerned, the perusal of mashirnama of recovery shows that the trap party reached after 15 minutes of alleged delivery or payment of tainted money and recovered the same amounting Rs.15000/- from the table of accused Tarique Hussain, thus admittedly the trap party neither witnessed the alleged delivery of tainted money by the complainant to the accused nor they did hear the conversation between the parties in respect of handing over of the tainted money therefore, it is yet to be determined that whether the tainted money recovered by trap party from table of accused was in respect of gratification allegedly paid by the complainant to the accused. The plea taken by the accused that they are victim of enmity and personal grudge of Mohammad Paryal Morio, C.O. ACE Larkana whose brother namely Sajjan Morio was served with notice for payment of government fees issued by Sindh Building Control Authority Larkana for approval of the map of his house who had refused from payment on which the NOC and approval of map was not issued to him, also carries weight and creates doubt in the prosecution case against the present applicants which calls for further inquiry. Offence under section 161, Cr.P.C. is punishable upto three years and section 5(2) Act-II of 1947 carries punishment upto seven years thus the offence against the applicants does not fall within prohibitory clause of section 497, Cr.P.C. Besides, I am also fortified by the dictum laid down in the cases reported as Mohammad Sulleman v. The State (2013 PCr.LJ 1051) and Dr. Iftikhar Ahmed Seehar v. The State (2014 YLR 1385) in which this Court has granted bail to the accused in the circumstances identical to the case in hand. In view of above, the prosecution case against the applicants calls for further enquiry and the applicants Najamuddin Bhatti and Tarique Hussain Khaskheli have made out case for concession of bail which is granted to them subject to their furnishing solvent surety in the sum of Rs.100,000/- each and P.R. bond in the like amount to the satisfaction of trial Court. WA/N-40/Sindh Bail granted.