TARIQ SALEEM SHEIKH, J.---Through this application the Petitioner seeks post-arrest bail in case FIR No. 12/2018 dated 2-4-2018 registered at Police Station ACE Headquarters, Bahawalpur , for offences under sections 420/468/471, P .P.C. and section 5(2) of the Prevention of Corruption Act, 1947.
2. As per FIR, the prosecution case is that the office of the Deputy Commissioner , Bahawalnagar , received Directive No.SS/CMO/17/236 dated 5.1.2017 from the Special Secretary , Chief Minister's Office, .Lahore, for transfer of. the Petitioner , who was then posted as Junior Clerk in Receipt and Despatch Branch, Deputy Commissioner's Office, Bahawalnagar , to the Assistant Commissioner Office at Chishtian, on the recommendation of Senator Zafar Ali Shah. Subsequently , the Deputy Commissioner Bahawalnagar received a reminder bearing Letter No.SS/CMO/17/43 dated 3.2.2017 for the said transfer . On 4.2.2017 the Petitioner submitted an application for the same purpose stating that his mother was sick and he wanted to look after her. Keeping in view Directive Nos. SS/CMO/17/236 dated 5.1.2017 and Letter No.SS/CMO/17/43 dated 3.2.2017 (the "Directives "), the Deputy .
Commissioner Bahawalnagar transferred the Petitioner to Tehsil Chishtian and placed his services at the disposal of the Assistant Commissioner vide Office Letter No.EB/551-56 dated 21.2.2017 and. submitted compliance report to the Special Secretary to the Chief Minister vide Letter No. EB/637 dated 23.2.2017, Syed Waseem Raza Jaffery, Special Secretary to the Chief Minister , vide Letter No.ST O/SSCM/CMO/17/OT -47 dated 9.3.2017 intimated the Deputy Commissioner that Letter No. SS/CMO/17/236 dated 5.1.2017 was fake and had not been issued by his office. Consequent thereupon, on 27.3.2017, the Additional Commissioner , Bahawalnagar , initiated an inquiry , summoned the Petitioner and recorded his statement. The latter admitted that he had asked his friend Muhammad Arshad, who was a real estate broker in Lahore and had been an advisor in the Ombudsman Office at Haroonabad, for his transfer and stated that he had got the Directives issued for his transfer and got them forwarded to the Deputy Commissioner . The Investigating Officer found the Petitioner guilty of misconduct and submitted report to the competent authority who directed the Complainant to lodge the instant case against him.
3. The learned counsel for the Petitioner contended that the Petitioner was innocent and the instant case was false.
He argued that, firstly , there was no evide nce that the Petitioner was the author of the Directives or that the same were issued at his instance. Secondly , the Anti-Corruption Establishment (ACE) had exonerated Muhammad.
Arshad who appeared to be the principal accused as per contents of the FIR.. Thirdly , the entire prosecution case was based on documentary evidence which was already in possession of the ACE so the Petitioner's further incarceration would not serve any useful purpose. Lastly , the Petitioner was a previous non-convict. He prayed that this application may be accepted and the Petitioner may be admitted to post-arrest bail.
4. On the other hand, the learned Deputy District Public Prosecutor vehement ly opposed this application. He contended that the Petitioner was a fraudster . He had fabricated the, Directives in the name of Senator Syed Zafar Ali Shah to procure his transfer . He maintained that the fact that he was the beneficiary of the Directives was by itself sufficient to incriminate him. The learned Law Officer contended that the Petitioner was not entitled to the concession of bail and prayed for dismissal of this application.
5. Arguments heard. Record perused.
6. Admittedly , the Directives were not produced by the Petitioner in the office of the Deputy Commissioner Bahawalnagar . The said office received them in Dak in official routine. There is not a whit of evidence that the Petitioner prepared them or managed their transmission from the Special Secretary to the Chief Minister to the office of the Deputy Commissioner , Baha walnagar . The ACE has not investigated any one from the office of the Special Secretary from where these documents originated and has exonerated Muhammad Arshad who was specifically nominated in the FIR as an accused. It is significant that in his applica tion dated 4.2.2017, which was after the receipt of the Directives by the Deputy Commissioner , the Petitioner did not make any reference to the Directives. If they had been in his knowledge, he would have definitely mentioned them to bolster his request. All these circumstances call for further inquiry within the meaning of section 497, Cr.P.C. It is true that the Petitioner is the beneficiary of the Directives but in criminal cases guilt of an accused is determined on the basis of evidence and not on presumptions. Anyway , the question as to how this circumstance advances the prosecution, case can only be determined at the trial after recording evidence.
7. The offences under sections 420 and 471, P.P.C. are bailable while the offences under section 468, P.P.C. and Section 5(2) of the Prevention of Corruption Act, 1947, do not fall within the prohibitory clause of section 497, Cr.P.C. In Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), the Hon'ble Supreme Court of Pakistan observed that Section 497 Cr.P.C. divide s non-bailable offences into two categor ies, viz, (a) offences punishable with death, imprisonment for life or C imprisonment for 10 years, and (b) offences punishable with imprisonment for less than 10 years. In non-bailable offences that fall in the second category (punis hable with imprisonment for less than 10 years) grant of bail is a rule and refusal is an exception. It held that in such cases bail should be declined only in exceptional circumstances, for example:
(i) where the accused is likely to abscond;
(ii) where there is apprehension that the accused would tamper with the prosecution evidence;
(iii) where there is danger that the accused would repeat the of fence if he is released on bail; and
(iv) where the accused is a previous convict.
The above principle was reaffirmed in Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488 ), Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708 ), Muhammad Tanveer v. The State and another (PLD 2017 SC 733 ) and Arslan Masih and others v . The State and others (2019 SCMR 1 152).
8. The learned Law Officer has confirmed that the Petitioner has no criminal histo ry. Admittedly , the Petitioner is a public servant and D there is no likelih ood of his absconding if he is admitted to bail. Reliance is placed on "Mehmood Ali Bhatti v. The State and others" (2016 SCMR 1549 ). Hence, there are no extraordinary circumstances owing to which his request for grant of bail may be declined.
9. The Petitioner is behind the bars since 5.12.2019. The Investigating Officer present in Court has confirmed that he has collected all the documentary evidence that was relevant for the instant case. Hence, there is no chance of the Petitioner tampering with it and no useful purpose would be served by keeping him behind the bars for an indefinite period. Reference in this respec t may be made to Saeed Ahmed v. The State (1995 SCMR 170 = 1996 SCMR 1132) Syed Abdus Salm, v. The State (2004 MLD 1947 ), Shaukat All v. The State and another (2012 YLR 596 ) and Nadeem Aslam v . The State and another (2019 YLR 415 ).
10. For all the above reasons this application is allowed. The I E Petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.