' MUHAMMAD SALEEM JESSAR, J.---By means of instant application under section 497, Cr.P.C. The applicant/accused Mirzo Khan Khoso seeks his release on bail in terms of section 497, Cr.P.C. In Crime No,03/2016 registered at PS ACE Matiari for the offence punishable under sections 161, 34 P.P.C. Read with section 5(2) Act-II of 1947 in Special Case No,99 of 2016 Re: The State v. Mirzo Khan Khoso and another, pending for trial before the Court of learned Special Judge, Anti-Corruption"
(Provincial) Hyderabad. The applicant preferred such Application No,107 of 2016 before the trial Court whereas co-accused Haji Zardari had also preferred Pre-arrest Bail Application No,96 of 2016 before trial Court. Since common points of law were involved and being subject matter of the same FIR, learned trial Court decided both the applications by common order dated 13.06.2016, whereby bail plea of the applicant was declined while interim pre-arrest to co-accused Haji Zardari was confirmed.
2. The case of prosecution unfolded in FIR is that the applicant Mirzo Khan was working as 'Daroga' in Irrigation Department who alleged came to complainant Manzoor Ahmed and demanded Rs,10,000/- else threatened to stop the water for irrigating his land and co-accused Haji Zardari also demanded Rs,2000/- as bribe. It is alleged further that the bribe amount was accepted by the applicant in presence of the witnesses. On 14.05.2016, applicant Mirzo Khan Khoso allegedly contacted with complainant on his mobile phone and made demand of Rs,20,000/- on 16.05.2016 in case of failure, he will file case against the complainant. The accused, at the request of complainant, agreed to accept bribe of Rs,10,000/- with direction to be paid to him or to co- accused Haji Zardari.
3. It is the case of the prosecution that present accused was trapped under the supervision of Mr. Suhail Akhtar Mangi, learned Civil Judge and Judicial Magistrate-I, Matiari on 16.05.2016. The ten
(10) denomination notes of Rs,1000/- duly marked were given to complainant and trap party headed by learned Magistrate proceeded to Al-Faisal Hotel, situated at main Highway Bye-Pass at 1530 hours. It is alleged that complainant Manzoor Ahmed called to Circle Officer, therefore, they encircled the proposed accused and recovered cash amount of Rs,10,000/- containing ten (10) denomination notes of Rs,1000/- from chapel of accused Mirzo Khan Khoso. The numbers of denomination notes were tallied and found the same as tainted. The applicant/accused Mirzo Khan Khoso was arrested. From his body search the Circle Officer also recovered one mobile phone, cash of Rs,1570/-, a duplicate copy of CNIC bearing No,41305- 9765996-7 in the name of accused and one Car DAIHATSU Mira bearing Registration No,AYF-875.
4. After due investigation, the case was challaned by the Anti-Corruption Police before the trial Court where his bail plea was turned down-which arose to file instant application.
5. Learned counsel for the applicant submitted that alleged incident as shown in the FIR is said to have taken place in the month of March, 2016 but no specific date or time is shown in the FIR whereas FIR was lodged with delay of about two months on 16.05.2016 but no plausible explanation has been furnished by the prosecution for an inordinate delay. He further submitted that offence under section 161, P.P.C. Is bailable whereas section 5(2) Act-II of 1947 is yet to be proved by the prosecution after trial. He further argued that no conversation whatever allegedly shade between the accused and complainant was heard by the learned Magistrate nor the alleged bribe was paid in presence of :the Magistrate. He further submitted that applicant being lowest grade employee of the department is government servant and if he may not be released on bail, besides his liberty, his service will also be spoiled. He has also submitted that the place of incident as shown in FIR is public thoroughfare where so many people always use to be gathered and available but no independent person was associated to witness the recovery proceedings rather they have arranged stock witnesses who are stated to be allies of Anti-Corruption' Police. He lastly submitted that co-accused Haji Zardari has been granted pre-arrest bail while the applicant is in custody and case is not only identical but is on better footings than that of co-accused. In support of his contentions, he has placed reliance on the case reported as 1999 PCr.LJ 503, 2000 PCr.LJ 1591, 2000 PCr.LJ 1903, 2001 PCr.LJ 2062, 2013 PCr.LJ 1051, 2012 M LD 1945 and 2014 YLR 1385. He lastly submitted that the applicant/accused be released on bail.
6. On the other hand, learned D.D.P.P. Appearing for the State opposed the bail plea of the applicant / accused on the ground that tainted amount of Rs,10,000/- was found from his chapel, therefore, he is not liable to be admitted to bail and finally he opposed the bail plea.
7. Heard arguments. Perused record minutely.
8. As per prosecution case, only allegation against the accused is that the tainted amount of Rs,10,000/- was recovered from his chapel by the Raiding Party supervised by the learned Magistrate. The Raiding Party had not witnessed the passing of money from complainant to accused nor they had heard any conversation allegedly made between the accused and complainant before passing the alleged illegal gratification. Per trap report and the perusal of the prosecution case, nowhere it is contended that the learned Magistrate had heard the conversation allegedly taken place in between the complainant and the accused. It is also out of reach to understand that after accepting alleged illegal gratification the accused kept it in the chapel, which is not secure place for keeping the denomination notes. If it had been a boot or other kind of shoes or socks, the prosecution version was to be believable. Admittedly the Raiding Party had advanced information and the place of A recovery is public thoroughfare but none from the public was associated to witness the recovery proceedings. The section 161, P.P.C. Is bailable while section 5(2) of the Prevention of Corruption Act-II, 1947 carries maximum punishment upto seven years, hence, does not fall within the ambit of prohibition clause as contained under section 497(i), Cr.P.C.
The accused is government servant, therefore, question of his absconding or tampering with prosecution evidence does not arise. Before charging to a public servant for alleged offence, it was incumbent upon the members of Raiding Party to have heard the conversation and witnessed passing of tainted notes from complainant to accused. Therefore, essential ingredient of trap is lacking in this case. In the circumstances, I am also fortified with the view taken by the apex Court in the case of 'Muhammad Ashraf v. The State' reported as 1996 SCM R 181.
9. In view of above discussion and the citations (supra), the instant application is allowed. However, the observations made hereinabove are tentative in nature and the learned trial Court may not influence from the same while deciding the case on merits. These are the reasons for my short order dated 26.08.2016, whereby the applicant/ accused was directed to be released on bail after furnishing his solvent surety in sum of Rs,1,00,000/- (Rupees one hundred thousand) and PR bond in the like amount to the satisfaction of the learned trial Court.
' Criminal Bail Application stands disposed of.