Through this petition, Shaukat Ali petitioner seeks post-arrest bail in case F.I.R. No, 10/2017. dated 27.5.2017, registered with the Police Station Anti-Corruption, Multan, in respect of offences under Section 161. PPC read with Section 5(2) of the Prevention of Corruption Act, 1947.
2.According to the crime report chalked out on the information- of Abdul Sattar complainant, it is alleged that he along with his relative Rabia Bibi contacted the petitioner, who was Secretary Union Council, to obtain a certificate regarding effectiveness of divorce. For said purpose, the petitioner received an amount of Rs, 3000, from the complainant in presence of the witnesses and now further demanding further Rs, 2000/- from him, thus, the complainant lodged an application for trap proceedings, and whereupon, learned District and Sessions Judge, deputed a Magistrate to conduct raid upon the petitioner and during the raid proceedings an amount of Rs, 2,000/- -was recovered from the petitioner.
3.'card. Record perused.
4.Although the petitioner has been caught by a learned Magistrate during trap proceedings but the fact remains that none of the witnesses or any member of the raiding party including learned Magistrate has heard the conversation between the trap agent and the petitioner. Meaning thereby, there is nothing on record to establish that the petitioner has demanded any illegal gratification from the complainant as the learned Magistrate or any of the members of the raiding party had heard any conversation in this regard. Wisdom is drawn from Bashir Ahmad v. The State (2001 SCM R 634).
5. Mere recovery of the tainted money from the possession of the petitioner is not enough to fix him with the guilt of having received bribe unless he is shown to have actually accepted the same with the knowledge it is illegal gratification. In this regard, reliance is placed on Ghulam Rasool v. The State (1996 P.Cr.L.J. 303).
6. In the attending circumstances, prima facie alleged complicity of the petitioner is necessarily a matter of further inquiry in terms of Section 497, Cr.P.C. as the prosecution has nothing in hand to connect the petitioner with the commission of illeged offence at this stage.
7. The maximum sentence provided for the offence under Section 161, PPC is three years and does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. Simultaneously, the penalty provided for Section 5(2) of Prevention of Corruption Act, 1947, is up to seven years and also does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. Moreover, in both the offences it has been left with the discretion of the learned trial Court to either award the penalty of imprisonment or impose fine or sentence an accused to both the penalties of imprisonment and fine, thus, clearly leaving scope of only imposition of fine at the discretion of the learned trial Court, in which case refusal of bail to the petitioner, resulting in this incarceration till conclusion of the trial, would amount to double jeopardy in view of the dictum laid down in the case of Sardar Sameer Asmat v. The State (2016 P.Cr.L.J. 1151).
8.The investigation is completed and petitioner is behind the bars since 27.5.2017. The petitioner is no more required by the Police for farther investigation and his further incarceration would not serve any useful purpose.
9.For the above reasons, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- (rupees two hundred thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
10.It is however, clarified that the observations made herein above are tentative in nature and strictly confined to the disposal of this bail petition.