' SYED SAEEDUDDIN NASIR, J.---Through this bail application, the applicant Jhamandas seeks post arrest bail in Crime No,02/2016, registered at P.S ACE Mirpurkhas under Sections 161, 34, P.P.C. Read with Section 5(2) of Act-II, 1997, after dismissal of his earlier bail application by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad vide order dated 05.05.2016.
2. Brief facts of the prosecution case are that on 27.04.2016 at 1000 hours complainant Mian Amjad Saeed son of Haji Saeed appeared at ACE Mirpurkhas and lodged FIR stating therein that he is owner of Al-Saeed Petrol Pump at Kot Ghulam Muhammad and that he has contract for supplying petrol to the Town Committee Kot Ghulam Muhammad whereas the Assistant Commissioner/Administrator of the said Town Committee namely; Jhamandas has been regularly extorting bribe from him for the payment/clearance of outstanding petrol bills for the petrol supplied by him to the said Town Committee. It is further stated in the FIR that since the year 2014, the accused has been extorting bribe amounts from the complainant for clearance of petrol bills and letting the complainant to continue the said contract in this manner, otherwise, the accused threatened him that his contract with the Town Committee Ghulam Mohammad for the supply of petrol shall be terminated. The accused used to collect the bribe money as aforesaid either himself or through his peon Sadar Mughal, who, up to now has received a total bribe amounting to Rs,500,000/- from the complainant on different occasions in the presence of one Partab. The complainant further alleged in the FIR that he went to the accused Jhamandas for payment/clearance of the bills for the month of February, 2016 amounting to, Rs,3,80,050/-, upon which the applicant/accused demanded bribe amounting to Rs,200,000/-for continuing the contract and for clearance of the outstanding bills against the Town Committee in the presence of one Naveed, however, the complainant told him that he did not have such a huge amount available with him at the moment, upon which the accused gave him discount of Rs,10,000/- and demanded Rs,1,90,000/- for clearance of the said bills of the complainant, and threatened that in case of failure, his bill will not be passed/cleared and the Town Committee will stop taking petrol from his petrol pump. Hence, the complainant appeared at Police Station of ACE, Mirpurkhas where he registered the instant FIR.
3. After registration of such FIR, ACE constituted a trap party under the supervision of Civil Judge and Judicial Magistrate, Digri on 27.4.2016, which conducted raid at the office of the applicant/accused, during which, the accused was arrested alongwith 38 notes of Rs,5000/- denomination, which were recovered from the first drawer of his table. The numbers of such currency notes were already noted by the said Judicial Magistrate heading the raiding party, and thereafter upon usual investigation, the applicant/accused along with co-accused peon Sadar Mughal, was arrested by the Circle Officer, Anti Corruption, Mirpurkhas, who prepared the mashirnama of arrest and recovery and sent up the accused persons for trial while submitting interim challan.
4. Mr. Muhammad Yousuf Leghari, learned counsel appearing for applicant/accused has, inter alia, contended that the applicant/accused is innocent and has been involved falsely in this case due to ulterior motives; that there is no reasonable ground to believe that the applicant/accused has committed the alleged offence with which he stands charged; that the prosecution story is false, fabricated,. Untrustworthy and highly unbelievable and is without any independent or corroborative piece of evidence except some interested and hostile witness; that from bare reading of FIR, it appears that no date and time of alleged demand and acceptance of bribe amount is mentioned in the same, even the witness of the recovery of alleged bribe amount is close friend of complainant, therefore, case of applicant/accused requires further inquiry; that in fact prior to alleged incident the complainant brought a wrong bill to the applicant/accused directly, which was not accepted by the applicant/accused and he cancelled the agreement with complainant and entered into a contract for the supply of petrol with another company namely Messrs Darya Ram Petroleum Service, Kot Ghulam Muhammad on 01.03.2016, due to which the complainant got annoyed and concocted a false story mentioned in the present FIR, therefore, the case of applicant/accused requires further inquiry; that at the time of alleged trap, the applicant/accused came out from the washroom and was having an informal talk with the complainant for passing of outstanding bills, which he refused to pay, however, suddenly the trap party came in and effected recovery from drawer of the table of applicant/accused and foisted the same upon him for which the applicant/accused has no knowledge, which shows that entire drama was made-up in the absence of applicant/accused, therefore, the case of applicant/accused requires further inquiry; that the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C, therefore, the applicant/accused is entitled to concession of bail; that the alleged recovery is foisted upon the applicant/accused and nothing was recovered from the possession of applicant/accused, therefore, his false implication. Cannot be ruled out; that the law for the purpose of bail cannot be stretched in favor of prosecution and if any benefit of doubt arises even at the bail stage, it must go to the accused; that the applicant/accused is in judicial custody and no more required for investigation purpose; that no prior permission from the competent authority has been obtained by the ACE, Mirpurkhas under Rule 13 of Sindh Enquiries and Anti-Corruption Rules, 1993, framed under section 9 of the said Act, which vitiates all the proceedings against the present applicant/accused; that the Judicial Magistrate who was heading the raiding party was not duly authorized by the District and Sessions Judge under Rule 11(3) of the said Rules, inasmuch as he was only communicated on his mobile phone to arrange the raid. In order to substantiate his arguments, the learned counsel for the applicant/accused has placed reliance on the case of Muhammad Sulleman v. State (2013 PCr.LJ 1051), wherein it is held that when the members of raiding party did not see the accused receiving the bride amount or hear the conversation between the accused and complainant party, and when the offence under section 161, P.P.C. Did not fall within the prohibitory clause of section 497(1), Cr.P.C., the case was one of further inquiry and accused is entitled to the concession of bail in circumstances.
5. Mr. Shahzado Saleem Nahiyoon, the learned A.P.G. Appearing for the State while vehemently controverting the arguments extended by the learned counsel for the applicant/accused and while arguing on the factual aspects of the case, has submitted that the applicant/accused has been apprehended red-handed at the place of incident along with the currency notes, the numbers of which were already noted by the raiding party and the Judicial Magistrate heading the same. He further contends that the investigation has not yet completed and is still in progress, inasmuch the applicant/accused has not recorded his statement under section 161, Cr.P.C. Before the I.O., on account of which, only interim challan has been submitted before the competent court of law and the final challan is still awaited for want of statement of applicant/accused, who is still not cooperating with the prosecution.
6. Mr. Shahzado Saleem Nahiyoon, learned A.P.G. Appearing for the State, while addressing the court on the point of necessity of prior permission of the competent authority for initiation of an inquiry, registration of FIR and investigation against a public servant, has submitted that no prior permission is required in any case of anti corruption in including trap cases, inasmuch as the Honourable Federal Shariat Court vide judgment dated 29.6.1989 pronounced in Shariat Petitions No,18/I and 19/I of 1987 has held that Provisions of sanction of the President, the Governor of Province or any other executive authority as mentioned in section 197, Cr.P.C. And section 6(5) of Pakistan Criminal Law Amendment Act, 1958 are repugnant to Injunction of Islam. Therefore, the Hon'ble Federal Shariat Court struck down the same. Thereafter, the Shariat Appellate Bench of the honourable Supreme Court of Pakistan has upheld the aforesaid judgment in the case of Federation of Pakistan v. Zafar Awan Advocate reported in PLD 1992 SC 72, and when the said judgment was sought to be reviewed by the Government of Pakistan, the review petition was also dismissed vide order pronounced in the case of Federation of Pakistan v. Zafar Awan (PLD 2005 SC 19). He further contended that when the provisions contemplated by the parent law with regard to obtaining prior permission from the competent authority for investigation and inquires and registration of FIR against public servants have been struck down as aforesaid, then the subsequent framing of Sindh Enquires and Anti Corruption Rules, 1993 is ultra vires the dictum laid down in the aforesaid judgment and, therefore, the same being mala fide and framed in bad faith, cannot be relied upon and taken into consideration at all, and no prior permission is required before institution of enquiry, registration of FIR and investigation of a case against public servant.
Moreover, the learned A.P.G. Further contends, that even under Proviso to Rule 11 of the existing Sindh Enquires and Anti-Corruption Rules, 1993, no prior approval is necessary for registration of a case against public servant, who is likely to be caught red handed, as a result of raid/trap arranged by the establishment under the supervision of a Magistrate. The learned A.P.G has further invited attention of the Court to Proviso to Rule 13 of the aforesaid Rules and states that under the said proviso no prior permission is required for the arrest of a public servant caught as a result of raid/trap, and when there is no requirement for initiation of enquiry against the public servant or his arrest, there is no necessity to obtain permission for submission of the challan against the public servant as well. The learned A.P.G. Pointed out that section 5 of Prevention of Corruption Act, 1947, under which the FIR of the present case has been lodged, which required previous sanction necessary for prosecution has also been omitted by insertion of section 6 to the said Act by Criminal Law Amendment Act, 1953 (XXXVII of 1953), therefore, the Prevention of Corruption Act, 1947 is still intact and under the same no prior permission for inquiry, registration of a case and investigation against public servant, his arrest and submission of challan against him in the trial court are necessary.
7. During the course of arguments, the learned A.P.G has placed on record a general order dated 12.9.2013 of District and Sessions. Judge, Mirpurkhas issued in exercise of powers conferred upon him under section 17, Cr.P.C. Investing the jurisdiction of certain police stations/agencies in the Courts of Civil Judge and Judicial Magistrates with immediate effect, whereby the jurisdiction of.
Anti Corruption Taluka Kot Ghulam Muhammad has been entrusted to Civil Judge, Family Judge, Judicial Magistrate, Kot Ghulam Muhammad and as the said Judicial .Magistrate was on leave, therefore, his additional charge was given to Civil Judge and Judicial Magistrate, Digri, who headed the raiding party. The learned A. P. G states that by virtue of the aforesaid general order, the judicial Magistrate was legally competent to conduct the raid at the office of the applicant/accused. He, therefore, has vehemently opposed the grant of bail to the applicant/accused on the above grounds.
8. I have heard the learned counsel for the applicant/accused and learned A.P.G. For the State and have gone through the material available on record and examine the case-law with their able assistance.
9. It is an admitted position that the present applicant/accused has been caught red handed by the raiding party headed by the Civil Judge A and Judicial Magistrate, Digri along with in the presence of the complainant, when the amount of Rs,1,90,000/- received by him as illegal gratification was recovered from the first drawer of his table in the form of 38 currency notes of Rs,5000/-denominations each, upon which the serial numbers of currency notes were verified which were the same according the mashirnama (1) which were taken into custody by the Circle Officer Anti Corruption, Mirpurkhas. The applicant/accused could not give a satisfactory account for the money recovered from his first drawer of his table. It is also an admitted position that the applicant/accused is not cooperating with the prosecution and has not volunteered himself to record his statement in the case before the I.O. On account of which the prosecution has not been able to submit final challan before the competent court of law. This defiant attitude demonstrates that the applicant/accused, being an Assistant Commissioner, thinks that he is not amenable to law and he can get away with anything. He, in all probability, is going to affect and influence the trial if set at liberty. I am satisfied that prima facie, there appears to be enough material on record to connect the accused concerned with the commission of the offence involved. Upon perusal of the FIR and the "TRAP REPORT" filed by the Judicial Magistrate Digri, it becomes crystal clear that the distinct and specific allegations have been leveled against the accused persons including the present applicant/accused wherein the recovery of bribe money has been effected from the drawer of the applicant/accused. I am of the opinion that at the bail stage a tentative assessment of evidence is to be made and no deeper appreciation and in-depth or detail examination of the prosecution evidence is warranted. I, therefore, abstain from giving a detailed account of the minute facts brought forward by the prosecution in the present case.
10. I find myself totally in agreement with the arguments extended by the learned A.P.G. Mr. Shahzado Saleem Nahiyoon that the prosecution was not bound to obtain prior permission from the competent authority before initiating enquiry, investigation and lodging of FIR against the accused /public servant and his subsequent arrest, as a result thereof, in view of the judgment relied upon by the learned A.P.G. In the case of Federation of Pakistan v. Zafar Awan Advocate (supra), wherein the Shariat Appellate Bench of honourable Supreme Court of Pakistan while upholding the judgment of the honourable Shariat Court has held that provisions of sanction of the President, the Governor of a Province or any other executive authority mentioned in section 197, Cr.P.C., and section 6(5) Criminal Law Amendment Act, 1958 are repugnant to the injunction of Islam, therefore, the President of Pakistan should take steps for suitably amendment of the said provisions till 30th June, 1992, failing which these provisions of law would cease to have effect. The review petition filed against the aforesaid judgment was also dismissed vide order in review petition reported in PLD 1992 SC 19 (supra). Therefore, I am of the view that after the pronouncement of the aforesaid dictum by the Shariat Appellate Bench of honourable Supreme Court of Pakistan in 1992, the exercise of framing of Sindh Enquires and Anti Corruption Rules 1993, contemplating obtaining necessary permission from the competent authority before initiating inquiry, FIR, investigation and submission of challan under Rules 11 and 13 is mala fide, void ab initio and of no legal effect. Even under such rules there is no requirement of obtaining prior permission from the competent authority for inquiry, registration of a case and investigation against public servant, his arrest and submission of challan against him in the trial court.
11. Today, indulging in corruption and taking bribe has become a de facto recognized norm of our society, which is corroding the entire edifice of our State. Due to this rampant corruption currently prevailing, the very image of our country has been whittled down in the eyes of the comity of nations. If we do not take serious steps to curb the menace of gnawing corruption at this juncture, then, I am afraid, we shall bequeath an ailing state to our coming generations, who would not be able to handle it at an advanced stage. Therefore, the cases of corruption should not be taken leniently however trivial punishment may be provided for the commission of the same under the penal statutes. My tentative view is that the offence alleged to have been committed by the 'Applicant/accused comes well within the ambit of crime of corruption and such offences adversely affect the society at large. For treating such offences, an entirely different criterion is to be set then the one which is adopted for offences punishable under Pakistan Penal Code or any other ordinary law. Guidance in this regard can be taken from the principles laid down by the honourable Supreme Court of Pakistan in the case of Imtiaz Ahmed v. State (PLD 1997 SC 545, para-7), wherein in para-7 of the judgment it was observed as follows:-- "7. I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as e whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr. P. C. In the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentences is less than 10 years' R.I. For the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved.
' The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts' approach should be reformation-oriented with the desire to suppress the above mischief. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. "
12. In view of the above reasons, prima facie, there appear to be reasonable grounds for disentitling the applicant/accused from the concession of bail, inasmuch as, the applicant/accused has failed to make out a case for grant of bail, on account of the fact, the investigation has not concluded so far, no final challan has been submitted by the prosecution with the trial court, and it would not be appropriate to admit the applicant/ accused to bail at this premature stage. The case law relied upon by the learned counsel for the applicant/accused is also distinguishable keeping in view the peculiar circumstances of the present case wherein accused has been caught red-handed along with tendered bribe amount during trap/raid conducted under the supervision of Magistrate, therefore, the same is not applicable in present case. Consequently, the instant bail application of the present applicant/ accused was dismissed by short order dated 06.06.2016 and above are the reasons for the same.
Bail declined.