2001 P Cr (PLP)

2. On 21‑3‑2001 Muhammad Iltaf, complainant reported to a secret Agency that his Company was working as Contractor for construction of roads etc. and officials of WAPDA were demanding 4s.36,000 as illegal gratification out of which he had paid Rs.24,000. on 31‑3‑2001 and the remaining amount of Rs.12,000 has been promised to be paid on 12‑4‑2001. On receipt of information, a raiding party was arranged and tainted amount of Rs.12,000 was handed over to the complainant. The XEN directed the complainant to hand over the said amount to Muhammad Afzal Usmani, Junior Clerk at his residence at R.B.C. Colony. On payment, the said amount was recovered by raiding party from petitioner No.2 and the case was registered.

3. Mr. Ishtiaq Ibrahim, the learned counsel representing. the petitioners argued that nothing was recovered from petitioner No. 1, though as per allegations of prosecution a sum of Rs.12,000 was recovered from petitioner No.2 but the raiding party did not hear the conversation between the person Who paid the money and the recipient of the allegedly recovered money. Reliance in this regard was placed on Bashir Ahmad v. The State 2001 SCMR 634 and Muhammad Ashraf v. The State 1996 SCMR

181. It was also argued that the case of the accused‑petitioners does not fall under prohibitory clause of section 497, Cr.P.C. and the sections of law with which. the accused‑petitioners are charged are also punishable with fine also. When the imposition of fine is envisaged by the law, then the accused petitioner is entitled to be released on bail as of right.

4. It was further argued that petitioner No. 1 was suffering from heart ailment. He is under treatment of doctors and the treatment of said disease is not available in jail where the petitioner No. 1 has been presently confined.

5. It was further argued that the petitioners are Government officials and there is no likelihood of their abscondence.

6. On the other hand Mr. Hafiz Aman, Advocate, representing the Federation/State argued that the accused‑petitioners were charged with the offence of corruption and the corruption is rampant in the society, and it is eating the society day by day, therefore, even if their case does not fall under the prohibitory clause of section 497, Cr.P.C. they are not entitled for the grant of bail as there is a strong case against them.

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

8. Without going deep into the merits of the case suffice it to say at this stage that the accused‑petitioners are charged under section 161, P.P.C. which is punishable only for 3 years or with fine or with both. Section 5(2) of Prevention of Corruption Act is also punishable with 7 years or with fine or with both and section 109, P.P.C. has been made applicable for abetment. The punishment provided for the abovementioned sections of law do not fall under the prohibitory clause of section 497, Cr.P.C. and grant of bail in such‑like cases is a rule while refusal is an exception. Moreover, when an offence is punishable with fine only, accused would be entitled to bail as of right because if at the trial he is only sentenced with fine, period as under trial prisoner spent by him due to refusal of bail shall amount to a case of double jeopardy. Reliance in this regard is placed on Bashir Ahmad v. The State PLD 1993 Pesh. 104.

9. The accused‑petitioner No. 1 was admittedly not present at the spot and the tainted amount has also not been recovered from his possession, therefore, it is yet to be established as to whether he had any connivance with the accused‑petitioner No.2 or not. Moreover, the amount of Rs.12,000 the tainted money, though allegedly recovered from petitioner No‑2 but the question as to whether the raiding party heard any conversation between the complainant and the recipient i.e. petitioner No.2, requires further enquiry as in such‑like transaction not only the bribe money to the accused by the complainant is to be seen, but also conversation between the complainant and the recipient has to be heard by the members of the raiding party which is necessary to eliminate the chances of involvement of innocent persons as held in Bashir Ahmad v. The State 2001 SCMR 634 and Muhammad Ashraf v. The State 1996 SCMR 181.

10. Accused‑petitioner No.l has placed sufficient material on record to indicate that he has been suffering from unstable angina and has been under the treatment of Senior Cardiologist of A.F.I.C. since, 1999. The treatment of said ailment is admittedly not available in the jail. He' is, therefore, entitled to be released on bail on this ground too.

11. The accused‑petitioners are officials of WAPDA and there is neither any likelihood of their abscondence nor there is any chance of tampering with the evidence by them as the prosecution has already taken into possession the requisite documents. The investigation of the case is complete and the accused‑petitioners are no more required for investigation. I, therefore, admit the accused‑petitioners to bail provided each one of them furnishes bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties each in the like amount to the satisfaction of the trial Court. The learned Presiding Officer shall ensure that the sureties are local, reliable and men of means. N.H.Q./295/P Bail allowed.