By this order I propose to dispose of the present bail applications as well as Bail Application Criminal Miscellaneous No.326 of 1994 (Javed Iqbal v. The State).
2. The petitioner, an employee of the Board of Intermediate and Secondary Education, Abbottabad alongwith some other employees hailing from Peshawar, has been charged for having committed an offence punishable under section 420/468, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The charge against him is that he has been issuing fake and bogus Matriculation and F.A. Certificates in lieu of monetary consideration. The prosecution case is that, in this respect, Riaz Ahmed, Constable Anti-Corruption Establishment was directed to contact the petitioner and to get a fake certificate in his name from the petitioner. Riaz Ahmed Constable, accordingly, contacted the petitioner on 3-10-1994 and asked him to prepare the requisite fake certificate. The petitioner promised to oblige him provided he paid him Rs.5,000 in cash. Rs.2,000 were paid to the petitioner, in cash, and it was agreed that the certificate in question would be delivered at "Tahli Wala Hotal" situated in the Main Bazar, Haripur on 2-11-1994. A trap party, under the supervision of Mr. Sher Bahadur Khan, EA.C. IV/Special Traffic Magistrate, was thus constituted.
On 2-11-1994, at the agreed rendezvous, the certificate was delivered to Riaz Ahmad Constable by the petitioner. In lieu Riaz Ahmed gave the tainted amount of Rs.3,000 to the petitioner. The Raiding Magistrate, after introducing himself to the petitioner, recovered the tainted amount of Rs.3,000 from the petitioner's possession. The petitioner was then arrested. The Raiding Magistrate prepared the raiding report and as a result thereof the present case was registered against him and others.
3. As far as the petitioner in the connected bail petition (Criminal Miscellaneous No.326 of 1994) is concerned, it appears from the record that the Anti-Corruption Establishment raided the house belonging to Khan Bahadur Khan son of Karam Khan resident of Sheikhubandi on 14-I1-1994 where the petitioner, who belongs to Peshawar and works in the Board of Intermediate and Secondary Education, Abbottabad, is residing on the ground floor. In the presence of the owner of the house (Haji Khan Bahadur Khan) and Mumtaz Zarin Khan C.O./A.C.E. Documents, as detailed in the recovery memo. Dated 2-11-1994, from Serial Nos.1 to 3 and two rubber stamps, were recovered.
4. Since petitioner Javed Iqbal son of Muhammad Yasin belonged to Peshawar, therefore, the Anti- Corruption Establishment thought it fit to also raid his ancestral house situated in Qadirabad, Gulbahar, Peshawar. It was on 14-11-1994 that the said house which belongs to Muhammad Yaseen son of Abdul Rahim, the father of the petitioner, was raided and lot of blank certificates were recovered from there in the presence of the father of the petitioner (Javed Iqbal) as is apparent from the recovery memo. Which is available on the file.
5. Petitioner Javed Iqbal, in the circumstances was arrested and later produced before Mr. Loft-ur- Rehman, Magistrate 1st Class, Abbottabad. The petitioner admitted his guilt before him and the M.I.C. Recorded his confessional statement.
6. Bail petitions of both the petitioners were rejected by the learned Special Judge, Anti-Corruption, N.-W.F.P., Peshawar vide his orders dated 2-11-1994 and 20-11-1994. Hence they have knocked at the door of this Court for the redress of their grievance.
7. Mr. Fazal-e-Haq Abbasi, Advocate learned counsel for petitioner Irshad Ahmed, Mr. Muhammad Akbar Khan Swati, Advocate learned counsel for petitioner Javed Iqbal and Mr. Adam Khan Jadoon, Advocate for the State present and heard. Record of the case perused carefully.
8. The learned counsel for the petitioners submitted at the Bar that the case of the petitioners does not fall under the prohibitory clause of section 497, Cr.P.C. And as such they may be released on bail. They further submitted that both the applicants were innocent Government servants and have been falsely involved in the present case for ulterior motives. They further stated that the petitioners are no more required by the police and that is why that they have been sent to the judicial lock-up. According to them the investigation and subsequent prosecution of the petitioner is going to take a long time, and therefore, in the circumstances of this case, it would be appropriate if the concession of bail is granted to them as their case does not fall under the prohibitory clause of section 497, . Cr.P.C. And also that there is no apprehension of their absconsion. In support of their contentions they have placed reliance on the following case-law:-- -
(1) PLD 1969 Pesh. 49 (Ch. Bashir v. The State): "Criminal Procedure Code (V of 1898) S 498 read with S 497---Bail before arrest---Government servant proceeded against for offences under Ss.406, 408, 409, 420 & 468, P.P.C.---Offences under Ss.406, 408, 409 and 468 although non-bailable. Not punishable with death or transportation for life---Ample discretion with Court to allow bail in such case irrespective of fact whether reasonable grounds exist believe that accused had committed offences---Refusing bail in such cases tantamount to punishment in advance and also entails over crowding in judicial lock-up--- Government servant accused of such like offences must be allowed bail unless reasonable grounds exist to believe that accused might abscond---Interim bail confirmed."
(2) 1972 PCr.LJ 188 (Abdul Majid and another v. The State): "Criminal Procedure Code (V of 1898) S 498---Bail---Accused being put to trial for keeping forged stock register and to have made wrong entries in relevant books in order to cheat Government--- Accused having to explain many questioned items and to brief their counsel and expert opinion also required on questioned documents--Some arrests of officials of Department concerned also likely and investigation likely to prolong, indefinitely---Bail in circumstances granted.
(3) PLD 1993 Pesh. 104 (Sher Ahmed v. The State): "In the case there has not come forth evidence that the accused/petitioner has been trading in the forged currency notes. His case is on border line. Prima facie his case has been found one of possession of forged currency notes covered by section 489-C, P.P.C. Which is bailable and also punishable with imprisonment or fine or both. It is remarked that when an offence is also punishable with fine only, accused shall be entitled to bail as of right because if at the trial he is only sentenced with fine, period as under trial prisoner due to refusal of bail shall amount to a case of double jeopardy. In the circumstances, accused petitioner shall be released on bail in case he furnishes bail bonds in the sum of Rs.20,000 with two local sureties of means in the like amount each to the satisfaction of the Ilaqa/Duty Magistrate."
(4) Criminal Miscellaneous No.258 of 1994 (Alamgir and Muhammad Ashraf v. The State): "3. Further investigation regarding the total embezzlement of Rs.85,22,768 would require considerable time and in this behalf extensive documentary evidence is expected to be brought on record, most probably, the Handwriting Expert who might be resorted to in connection with the forgeries etc. The trial of the offence after investigation would also take a long time for which the detention of the petitioners would serve no purpose. It is all the more important to see that the application of sections 406 and 409, P.P.C. Is yet to be justified at trial.
4
5. Consequently, the applications are accepted and all the three petitioners are directed to be released on bail provided they furnish bail bonds in the sum of Rs.1,00,000 (one lac) each with two local, reliable and resourceful sureties to the satisfaction of the Deputy Registrar of this Court."
9. On the other hand, the learned State counsel submitted at the Bar that the petitioners were directly charged in the F.I.R. And the fake, blank/filled certificates duly stamped by the relevant authorities, were recovered from their houses, that, in this connection, one of the co-accused namely Javed Iqbal has also made a confessional statement, therefore, reasonable grounds do exist for believing that the petitioners are connected with the commission of the offence with which they have been charged and as such they are not entitled to be released on bail. The learned counsel, however, frankly conceded that the case of the petitioners does not fall under the prohibitory clause of section 497, Cr.P.C. He, nevertheless, vehemently argued that since the petitioners were charged for having committed non-bailable offences, therefore, the concession of bail should not be granted to them at this stage. Reliance in this respect was placed on the following case:--- PLD 1991 Lah. 391 (Gphar Majid Noshahi v. The State) wherein it was held: "S.497--Penal Code (XLV of 1860) Ss.390 & 393---Bail--Grant of----Held, fact that case of an accused person did not fall within the prohibitory clause of S.497, Cr.P.C. Would not automatically entitle accused person to be admitted to bail, as of right--Non-prohibitory clause of S.497, Cr.P.C.-- -Only indicated that there was no prohibition or bar in admitting the concerned accused person to bail--Accused, nevertheless, remained accused of non-bailable offence and the question whether the accused should or should not be admitted to bail continued to remain a discretionary matter to be decided by the Court in accordance with established principles regulating the law of bail--- Allegations levelled against the accused persons and their conduct were also relevant considerations in the exercise of discretion by the Court--Petitioner and his co-accused in the case were alleged to have trespassed into the house while armed with fire-arms and a dagger in order to commit dacoity--Additional Sessions Judge released the accused petitioner on bail on the ground that no dacoity had actually been committed and that the act of the petitioner and his co- accused was at the most punishable under S.393, P.P.C. The sentence of which was seven years which took the petitioner's case out of the purview of the prohibitory clause of S.497, Cr.P.C.---Such approach was not tenable in law."
10. The learned State Counsel further stated that such people were a curse for society as they were preparing fake certificates on the basis of which people were getting admissions in various professional colleges such as medical colleges and engineering college and were also getting Government services. He submitted that it would be in the public interest if the prayer of the petitioners for granting them bail is refused/rejected.
11. After hearing the learned counsel for the parties and after going through the record of the case I am convinced in my mind that the facts of the case referred to by the learned State Counsel and reported in PLD 1991 Lah. 391 are quite different and the principle laid down in the said case would not be attracted to the facts of the present case. Therefore, without dilating upon the merits of the case at this stage, and keeping in view the fact that both the petitioners are Government servants who are not required for further investigation, that the investigation and the trial of their case would take sufficient long time, that there is no apprehension of their abscondence, and that their case also does not fall under the prohibitory clause of section 497, Cr.P.C., they are admitted to bail in the sum of Rs.2,00,000 (Two lacs) with two sureties each in the like amount to the satisfaction of Deputy Registrar of this Court.
12. The Deputy Registrar shall see that the sureties are respectable persons who belong to the settled area of Abbottabad and are men of means having sufficient property in their names. The bail bonds shall be taken in, duplicate alongwith the relevant documents i.e., property documents, photostat copies of the identity cards etc. Etc., for record.