' Petitioner Nazar Muhammad has sought for post-arrest bail in case F.I.R. No,46 of 2002, dated 25th June, 2002 under section 161, I.P.C. Read with sections 5(2)/47, P.C.A. Police Station Anti-Corruption Establishment, Multan.
2. The abovementioned case has been registered on the statement of one Rabnawaz. He has alleged therein that he had built a house over 11 Marlas of land in Mauza Jehangirabad, Multan and is residing therein. He needed the copy of record of rights of those 11 Marlas of land. About one month prior to the same, he went to Malik Nazar Muhammad, Patwari, who demanded Rs,2, 500 from him for giving him the copy of record. He in the presence of Elahi Bakhsh gave him Rs,1,500 but he demanded more money from him and did not give him the copy of that record. He demanded Rs,1, 000 more from him for that purpose. He promised to pay him that amount.
3. After registration of the case, a raiding party was arranged. The raiding party headed by Haqnawaz Chauhan, Special Judicial Magistrate (City), Multan raided the office of the petitioner and recovered Rs,1,000 from him (Patwari).
4. It has been contended on his behalf that he has falsely been roped in due to party-faction in the department; that he is behind the bars for the last about 1-1/2 months; that offence does not fall within the prohibitory clause; that he is previous non-convict and when this may be the position then the accused becomes entitled to bail and in support of the same reliance has been placed upon the case of Muhammad Shabbir v. The State 1986 PCr.LJ 197, Tariq Bashir .And 5 others v. The State PLD 1995 SC 34, Kodomal and another v. The State 2001 PCr.LJ 1789 and Pirzada Bashir Ahmad Shah v. The State 2002 PCr.LJ 168; and that the authorities relied upon by the learned Special Judge, Anti-Corruption, Multan in his order dated 6-7-2002 while declining bail to him are not applicable to the instant case as those proceeded on different facts and circumstances than the same.
5. Conversely the learned State Counsel has supposed the bail application on the grounds that he has not only received Rs,1,500 from the complainant as illegal gratification for giving him copy of record of rights but had also received further amount of Rs,1,000 from him for the same purpose; that on raid later amount of Rs,1,000 was recovered from his possession, so he prima facie is connected with the alleged offence; and that bail in cases not covered under the prohibitory clause of section. 497, Cr.P.C. Can be granted as a matter of course but in exceptional circumstances it can be refused.
6. I have carefully considered the submissions advanced from both sides with the help of the available record.
7. The fact remains that petitioner is behind the bars for the last about one month and 20 days, so, he is no more required for any further purpose of investigation. The offence alleged against him admittedly does not fall within the prohibitory clause of section 497(1) of Cr.P.C. He admittedly is previously non-convict and challan against him has not been submitted in the trial Court. On similar grounds in the case of Muhammad Shabbir v. The State 1986 PCr.LJ 197, the accused was allowed bail.
8. In the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, their Lordships in the august Supreme Court of Pakistan were pleased to hold that grant of bail, in offence punishable with imprisonment for less than ten years is a rule and refusal an exception and bail can be declined in exceptional and extraordinary cases of offences punishable with imprisonment of less than ten years as enumerated above. In the instant case, no exceptional or extraordinary circumstance have been brought tc.Th to justify the refusal.
9. Similar view was expressed in the case of Kodomal and another v. The State 2001 PCr.LJ 1789.
10. In the case of Pirzada Bashir Ahmad Shah v. The State 2002 PCr.LJ 168, bail was granted to petitioner/accused Bashir Ahmad Shah in the case against him registered under sections 409, 468 and 477-A, P.P.C. Read with section 5(2), P.C.A., 1947 although sufficient heavy/large amount was involved in that case.
11. In view of the above position and these esteemed authorities, I hold that he is entitled to bail.
12. As regards the authority 1975 SCM R 244 referred to by the learned Special Judge Anti- Corruption, Multan in his order dated 6-7-2002 while refusing bail to the petitioner, with all respect, the same is not applicable to the instant case for the reason that the said case proceeded on different facts and features than this case. Such distinction is there because of the fact that the said authority was with reference to conviction and sentence. The order was passed. By their Lordships in the august Supreme Court of Pakistan in petitions for leave to appeal while in the instant case question of grant or otherwise of bail to petitioner is involved. So, the said authority is not applicable to the instant case.
13. As regards the case of Muhammad Ikram and another v. The State 1993 PCr.LJ 1333, the same too is not applicable to the instant case as the judgment in the same was in criminal appeal.
14. Here it may be relevant to mention page of that citation perhaps has inadvertently been mentioned as 334 in the order of the learned Special Judge instead of 332. So, with all respect, the same too is not applicable to the case of the petitioner as regards the question of bail.
15. Similar is the position in the case of Gulzar Hussain Noon v. The State 1992 PCr.LJ 628 as mentioned in the order of the learned Special Judge, Anti-Corruption. The case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Kodomal and another v. The State 2001 PCr.LJ 1789 and that of Prizada Bashir Ahmad Shah v. The State 2002 PCr.LJ 168 will take precedence to that case being later in time than the same.
16. As regards the case of Imtiaz Ahmad and others v. The State PLD 1997 SC 545, the same too would also not be applicable to the instant case being distinguishable from the facts and circumstances of that case than this case. In that case, the accused, who were holding public offices and were entrusted with duty to ensure that under-trial prisoners do not escape had allegedly actually participated in making possible the escapees to escape and such escapees were involved in number of heinous crimes including murder, dacoity and Hudood cases etc. And one of such escapees allegedly been involved in 14 cases and such escapees had endangered the public peace and tranquillity for kw coins. In such circumstances, their Lordships were of the view that such offence was directed against the society and in such circumstances the petitions for leave against exercise of discretion of by the learned Special Judge and the learned Judge in Chamber was refused.
17. I, therefore, for the above reasons accept this petition admit him to bail in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned Special Judge, Anti-Corruption, Multan/trial Court.