Through the instant petition, the petitioner seeks his post-arrest bail in case FIR No.17/2018, dated 12.02.2018, offences under section 161 PPC read with section 5(2) of Prevention of Corruption Act, 1947, (hereinafter "PCA 1947") registered with Police Station Anti-Corruption Establishment, Lahore.
2. Precisely prosecution accusations, as per contents of the crime report, are that on the pretext of providing government job to the complainant and one Syed Moazzam Hussain as Clerk in the Health Department, the petitioner and his co-accused received Rs.3,50,000/- on 22.02.2016, Rs.3,00,000/- on 05.03.2016 and Rs.2,00,000/- on 07.04.2016. According to the contents of the FIR video of handing over illegal gratification by the complainant to the accused was prepared. The accused also provided them appointment letters which were found bogus on verification.
3. Arguments heard. Record available on the file perused.
4. The main crux of the arguments of learned counsel for the petitioner is that the offences with which the petitioner is charged, both punishable under sectio n 161 PPC as well as under section 5(2) of the PCA 1947, do not fall within the prohibitory clause as contained in sub-section (1) of section 497 Cr.P.C. therefore, petitioner should be granted bail as a rule as no exceptional circumstances are available, as laid down in TARIQ BASHIR , to refuse the relief prayed for. On the other hand learned Deputy Prosecutor General contends that by virtue of amendment, introduced through Act LII of 2021, the punishment for an offence of criminal misconduct punishable under section 5(2) of the PCA 1947 has been enhanced upto 10 years.
5. In order to appreciate the contention raised by learned counsel for the petitione r and the learned Law Officer, it shall be appropriate to see the date of commission of the offence in question. According to the crime report offence was committed way back in the year 2016 . It is a settled proposition of law, keeping in view the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution" ), that the amendment in1 any penal statute shall not apply retrospectively . The amendment to enhance the punishment of section 5(2) of PCA 1947 was enforced through the Act LII of 2021 on 01.12.2021, therefore, it shall not apply in the case of the present petitioner in which the occurrence took place in the year 2016. It shall be appropriate to reproduce Article 12(1) of the Constitution as infra:- "12. (1) No law shall authorize the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the of fence was committed."
The above provisions of the Constitution make it abundantly clear that no penal provision shall be applied retrospectively . This view was affirmed by the august Supreme Court of Pakistan in late 70s in ABDUL REHMAN in the following words:- "According to Article 12 of the Constitution no law could authorize punishment of a person for an offence by a penalty greater than the penalty prescribed by law for the offence at the time the offence was committed."
6. Moreover , under Articles 75 and 116 of the Constitution read with section 5 of the General Clauses Act, 1897, all the Acts (Central or Provincial), Presiden tial Orders, Ordinances and Notifications shall come into force from the day assent is granted by the President or Governor , as the case may be or from the day of enforcement provided thereunder . The amendment in section 5(2) of PCA 1947, was brought on the statute book on 01.12.2021, therefore, it goes without saying that protection provided under Article 12 of the Constitution is available to the present petitioner .
7. Now the question arises whether the principle contained in Article 12 of the Constitution will come into play even at bail stage. This proposition was dealt with by the prestigious Supreme Court of Pakistan in AZMA T KHAN while dealing with the bail matter , wherein the Apex Court agreed with the contention of learned counsel for the appellant that amendment in a penal statute shall not apply retrospectively even at bail stage and granted bail to the appellant. This view was further followed in the cases titled ABDUL RAZZAQ and another vs. THE STATE - 2007 MLD 1 11 and SHAHZAD ABID vs. THE ST ATE - 2003 PCrLJ 661.
8. As far as merits of the case are concerned, careful scrutiny of the record availab le on the file reflects that in first inquiry conducted by Syed Zubair Ikhlaq, Circle Officer, Anti-Corruption Establis hment, Lahore, the same was recommended to be dropped. Where after inquiry was entrusted to another inquiry officer by the competent authority wherein judicial action was recommended and consequently the FIR was got registered. Although it is the prosecution case that the complainant made video clips qua handing over illegal gratification to the petitioner , however , it is astonishing that despite the fact that case was registered way back in the year 2018 but USB containing alleged video clips was handed over to the Investigating Officer on 02.06.2022 i.e. after the arrest of the petitioner on 25.05.2022. Moreover , the USB containing video clips was not sent for forensic analysis. No receipt of payment of amount paid as illegal gratification could be produced during the course of investigation. In these circumstances prima facie, authenticity of the accusations shall be determined during the course of trial after recording the prosecution evidence and the case against the petitioner calls for further inquiry and probe into his guilt. Even otherwise the offences with which the petitioner was charged did not fall within the prohibitory clause of section 497(1) Cr.P.C. at the time of commission of the alleged occurrence. It is consistent view of the Superior Courts of the Country that in the cases not falling within the prohibitory clause of section 497 Cr.P.C. bail is a rule and refusal an exception and there are no exceptional circumstances, warranting refusal of bail to the petitioner , available on the record. Respectful relian ce in this regard can be placed on the judgments of the august Supreme Court of Pakistan rendered in the cases of TARIQ BASHIR (supra), Riaz Jafar Natiq vs. Muhammad Nadeem Dar and others - 2011 SCMR 1708 and MUHAMMAD T ANVEER vs. THE ST ATE - PLD 2017 SC 733 .
9. There are no criminal antecedents of the petitioner as admittedly he is first offender . He is stated to be behind the bars since the date of his arrest and investigation being complete to his extent , his person is no more required by the investigating agency . Needless to mention that liberty of a person is the constitutionally guaranteed right and one cannot be kept behind the bars for an indefinite period without trial.2 3
10. In sequel to what has been discussed above the instant bail petition is allowed as a consequence whereof the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court. {{FOOTNOTE}} TARIQ BASHIR and 5 others vs. THE ST ATE- PLD 1995 Supreme Court 34 ABDUL REHMAN vs. The ST ATE - 1978 SCMR 292 AZMA T KHAN vs. The ST ATE - 1994 SCMR 434