Abdul Hamid Khan petitioner, Ex-Excise and Taxation Officer, D.I. Khan was arrested on 18.4.2001 under Section 9 read with Section 10 of the NAB Ordinance and a reference was filed against him in the Accountability Court No, 1, Peshawar which matter is still under trial. During confinement of the petitioner in the aforesaid NAB reference a case vide F.I.R. No, 5 was registered by the Anti- Corruption Establishment D.I. Khan on 4.5.2002 under Section 419/420/468/471 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947. The allegations were that vehicle bearing Registration No, DNB-3135 was allotted new No, TK-278 on the application of the owner, the petitioner had a hand in the affair and he did so in collaboration with co-accused Attaullah for monetary gains.
2. The petitioner moved an application in the Court of learned Special Judge Anti Corruption NWFP Peshawar for grant of bail which was rejected through order dated 18.1.2003. The petitioner has approached this Court with the similar prayer.
3. Qazi Muhammad Anwar, Advocate for the petitioner while arguing in support of the bail application vehemently contended that prosecution has brought no incriminating material on the file to implicate the petitioner with commission of offence and the concession of bail has been declined to the petitioner notwithstanding the fact that co-accused Attaullah attributed the same role qua the petitioner, has already been admitted to bail by the learned trial Judge by virtue of his order dated 4.7.2002. Concluding the arguments the learned counsel submitted that the learned trial Judge has highlighted merits of the case at the stage of bail which has materially prejudiced the cause of the petitioner. To substantiate the contentions, reliance was placed on Tariq Bashir and 5 others petitioners vs. The State respondent (PLD 1995 Supreme Court 34) and Muhammad Sadiq Javeed vs. The State (PLD 1969 Peshawar 12).
4. Conversely, Mr. M. Tariq Javed, Deputy Advocate General, opposed the bail application and submitted that prosecution is in possession of sufficient evidence to connect the petitioner with the guilt and keeping in view the facts and circumstances of the case, the petitioner is not entitled for the benefit of bail. He placed reliance on Imtiaz .Ahmad and another petitioners vs. The State respondent (PLD 1997 S.C. 545) and Tubbasam Ahmad Qureshi applicant vs. The State Respondent (2000 P.Cr.L.J. 105 Karachi).
5. In order to appreciate the contentions of learned counsel for the parties, I consider it appropriate to reproduce below. Section 496 and sub-sections (1) and (2) of Section 497 of the Criminal Procedure Code, which read :-- "496. In what cases bail to be taken.--When any person other than a person accused of a non- bailable offence is, arrested or detained without warranted by an officer-in-charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer of Court, if he or it thinks fit, may instead of taking bail, from such person, discharge him on his executing a bond without surties for his appearance as hereinafter provided : Provided further, that nothing in this section shall be deemed to affect the provisions of Section 107, sub-section (4), or Section 117, sub-section (3).
497. When bail may be taken in case of non-bailable offence.--(1) When only person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten year: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail : Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show-cause why he should not be so released.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail; or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
6. It is not denied that in bailable offences the admission of an accused person on bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. The principle to be deduced is that in non-bailable offences falling in the second category (punishable with imprisonment for less than 10 years) the grant of bail is a rule and refusal an exception. In the instant case the offences attributed to the petitioner are not covered by the prohibitory clause of Section 497, Cr.P.C.
7. By now it stands settled by the judicial pronouncements that at the stage of bail the evidence or the material brought on record by the prosecution is not to be appreciated in its minute details rather the same is to be taken view of tentatively. Appreciation of evidence and drawing of conclusions therefrom is the exclusive function of the trial Court.
8. The crime in question having taken place on 16.8.2002, matter was reported to the police on 8.11.2001 and 'the F.I.R. was chalked on 4.5.2002. It is true that the petitioner is directly nominated as one of the accused persons in the F.I.R. and a specific role has been attributed to him in commission of crime but it is equally true that co-accused Attaullah assigned similar role qua the petitioner, has already been enlarged on bail by the learned trial Court but plea of the petitioner for bail has been refused. The mere fact that large number of cases of similar nature are pending against the petitioner in different Courts, by itself cannot be considered a good ground, to refuse him the relief of bail. Keeping in view the principle of consistency and the fact that the offences attributed to the petitioner are not covered by the prohibition contained in Section 497, Cr.P.C. I find that case of the petitioner necessitates further inquiry as contemplated under Section 497(2)
Cr.P.C. The petitioner has succeeded to make out a case for grant of bail. The application of the petitioner is accepted and he is ordered to be released on bail on furnishing bail bonds in the sum of Rs, 300,000/- (Rupees Three Lakhs) with two sureties in the like amount to the satisfaction of the Special Judge, Anti Corruption NWFP Peshawar.