Through the instant petition under Section 497, Cr.P.C., the petitioner namely Muhammad Yasir is seeking post- arrest bail in the case FIR No. 08/2021, dated 08.3.2021, offences under Sections 161, 162, PPC read with Section 5(2) of The Prevention of Corruption Act (Act No. II), 1947, registered with the Police Station ACE, Kahnewal.
2. According to the prosecution's case Nadia Gill while working as Secretary Union Council had demanded an amount of Rs. 15,000/-as illegal gratification from one Mst. Shazia Parveen for enrolment of date of birth of complainant's nephews and nieces. As per FIR, Mst. Shazia Parveen has paid an amount of Rs. 5000/- to said Nadia Gill and on the day of occurrence, when Nadia Gill had received an amount of Rs. 10,000/- from Mst. Shazia Parveen and handed over the said amount to her husband Muhammad Yasir/the petitioner , who was also present there, they were nabbed during raid supervised by the learned Magistrate. It was further alleged in the FIR that the amount of Rs. 10,000/- was recovered at the time of the said raid from the petitioner .
3. Arguments heard. Record perused
4. As per prosecution case, only allegation against the petitioner is that the tainted amount of Rs. 10,000/- was recovered from him by the Raiding Party supervised by the learned Magistrate. The petitioner is not a government servant rather he is husband of co-accused Nadia Gill, who was working as Secre tary Union Council at the time of occurrence, therefore, attraction of Section 5(2) of The Prevention of Corruption Act (Act No. II), 1947 is not made out, and at the most only the offence under Section 162, PPC is made out against the petitioner , which is bailable.
It is pertinent to mention here that much prior to the registration of instant case, the date of births of said children have already been enrolled on 17.1.2016.
5. Apart from the above, the Raiding Party had not heard any conversation allegedly made between the petitioner and complainant before passing of the alleged illegal gratification. Per trap report and the perusal of the prosecution case, nowhere it is contende d that the learned Magistrate had heard the conversation which allegedly had taken place in between the complainant and the petitioner prior to the passing of the said illegal gratification.
Before charging a public servant for alleged offence, it was incumbent upon the members of Raiding Party to have heard the conversation and witnessed the passing of tainted notes from complainant to accused. Therefore, essential ingredients of trap are lacking in this case. Admittedly the Raiding Party had advanced information but none from the public was associated to witness the recovery proceedings. The offence under Sections 161, PPC is also bailable in nature as per Schedule-II of the Code of Criminal Procedure, 1898 while Section 5(2) of the Prevention of Corruption Act-II, 1947 carried maximum punishment of seven years, hence, does not fall within the ambit of prohibition clause as contained under Section 497(i), Cr.P.C. The prosec ution case is wholly dependent upon government functionaries, therefore, question of tampering with prosecution evidence does not arise. The investigation of this case has been concluded and the corporal custody of the petitioner is not required for the purpose of investigation and keeping the petitioner in jail would not serve any useful purpose at this stage. The concession of bail ought not to be withheld as a punishment. In the case of Salem Jan (Naib Tehsildar) and another V.The State and another (PLD 2011 Supreme Court 509), the august Supreme Court of Pakistan has observed as under: Investigation of this case has already been finalized and, thus, physical custody of the petitioners is not required at this stage for the purpose of investigation. In these circumstances continued custody of the petitioners in jail is not likely to serve any beneficial purpose at this juncture. It is trite that the concession of bail ought not to be withheld by way of premature punishment.
6. For the foregoing reason the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 100,000/-(Rupees One Hundred Thousand Only) with one surety in the like amount to the satisfaction of learned trial Court. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court.