' The petitioner, an Assistant Commissioner, Income Tax Circle, Rahimyar Khan, is under arrest in a case under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, registered against him on 15-3-1998 at Police Station F.I.A., Bahawalpur, in consequence of a complaint lodged by Muhammad Ibrahim son of Taj Muhammad to the District Magistrate, Rahimyar Khan, under whose direction, Mukhtar Ahmad, Inspector, F.I.A. Bahawalpur, recorded the statement of Muhammad Ibrahim to the effect that the complainant is the President of Cotton Ginners, Rahimayar Khan, and about two years ago Punjnad Cotton Industry was purchased by his cousin Muhammad Akmal from Punjnad Group. The matter relating to the scrutiny and payment of income-tax was settled by the Commissioner, Income Tax, Bahawalpur. Muhammad Suleman Saeed Qureshi, the present Assistant Commissioner expressed for re-opening the case of said Muhammad Akmal and also issued notice for the current year. Muhammad Akmal with the consultation of the complainant approached their counsel namely Mahmood, who contacted Suleman Qureshi on telephone, whereupon the accused demanded Rs.5,00,000 as illegal gratification for dropping the proposed action against Muhammad Akmal, however, he agreed to receive Rs.2,00,000. According to the petitioner, he after making arrangement of rupees one lac met the accused and agreed him not to make further demand and instead of making payment to the petitioner reported the matter to the F.I.A. The currency-notes of the denomination of rupees one lac were produced by Muhammad Ibrahim before the Additional Deputy Commissioner (G) who was deputed by the District Magistrate to conduct the raid and got their number noted and thereafter a raiding party headed by the A.D.C. (G) was arranged. Muhammad Ibrahim complainant alongwith Muhammad Akmal went to the petitioner and after delivering the amount in question in his office signalled through mobile telephone whereupon the police party raided the office of Assistant Commissioner and recovered the tainted currency notes of the value of rupees one lac kept by him in a file rag on left side of his table which having recovered were taken into possession. Additional Deputy Commissioner (G) completed necessary proceedings at the spot including recording the statements of the witnesses. The petitioner in his statement before the raiding Magistrate identifying his voice admitted his conversation on the subject with the complainant and his Advocate recorded on tape saying that he committed a mistake. The taprecorder containing the conversation of the petitioner with the complainant party before the raid on the subject is available with the Investigating Officer.
3. Learned counsel for the petitioner contends that the complainant is the real brother of local M.P.A. Namely Imtiaz Ahmad who having personal grudge against the petitioner for his non- cooperation with him involved him in this false case. According to him, the petitioner being not competent to re-open the case and make scrutiny of the income-tax returns submitted by Muhammad Akmal, the owner of the Punjnad Cotton Industry, there could be no question of his demanding the bribe for extending any favour in the matter. He argued that the story on the face of it being not appealable, the mala fide and ulterior motive is apparent. He further argued that the petitioner is in the judicial lock-up for the last about three months without trial and the challan has not been submitted for want of sanction which is not expected to be made available shortly. He placing reliance on PLD 1985 SC 34 contended that the offence under section 161, P.P.C., being punishable with maximum sentence of three years and the offence under section 5(2) of the Prevention of Corruption Act, 1947, providing imprisonment for seven years do not fall within the prohibitory clause of section 497, Cr.P.C. And, threfore, bail in such-like cases is granted as of rule and refused as an exception.
4. Learned counsel appearing on behalf of the complainant and the State contrarily argued that the whole conversation between the petitioner and the complainant regarding the settlement of the consideration for doing the needful having preserved through tape-recorder is available with the Investigating Agency and further the recovery of the tainted currency-notes from the possession of the petitioner from his office in presence of the witnesses is a strong proof of his guilt.
He argued that there being reasonable ground to believe that the petitioner had committed the offence with which he is being charged, he is not entitled to the concession of bail. Learned counsel placing reliance on Imtiaz Ahmad and another v. The state (PLD 1997 SC 545) wherein it has been held that the distinction between an offence committed by an individual in his private capacity and an offence committed by a public servant/functionary in respect of or in connection with his public office is to be made and the practice to allow bail in former cases not falling under the prohibitory clause in the absence of an exceptional circumstance may be followed but in the latter category of cases, the offenders belonging to a distinct class falling under exception to the general rule are to be dealt with accordingly. The observation made by the apex Court is as follows:-- ' "The Courts should not be oblivious of the fact that at present country is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole nation as a united entity makes efforts, The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts' approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above object, it is imperative that the Courts should be applied strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be strucked between national and individual interest/right."
5. There is no cavil to the proposition that a person who is an accused of non-bailable offence not falling within the prohibitory clause, the bail is granted following the principle referred above and normally is not refused unless an exception is created through some statutory provision or some other strong grounds relatable to the matter. The present case having distinguishable features does not fall within the general category of cases not falling within the prohibitory clause and refusal of bail in such cases can be called curtailment of liberty as punishment. The petitioner was holding a very responsible office dealing with the collection of revenue through misuse of his powers demanded bribe for showing favour not to re-open the income-tax case of Punjnad Cotton Industry, therefore, the question what loss he has caused to the Treasury or what has gained by him is not material in the circumstances of the present case as the petitioner was not supposed to indulge in such nefarious activities. Therefore, the case against the petitioner being fully covered by the judgment in the case PLD 1997 SC 545 given by the apex Court, the same being an exceptional one, the petitioner cannot be extended the benefit of the general rule for the grant of bail in such- like cases.
6. Mukhtar Ahmad, Inspector F.I.A. Present in Court states that the Challan has not been submitted for want of sanction and the needful will be done as soon as the sanction is received expectedly within a short time. I, therefore, dispose of this application with direction that the Investigation Agency, after obtaining the sanction for prosecution, submit the final report within one month and the petitioner will be entitled to repeat his application after submission of the Challan.