BASHIR AHMAD- vs THE STATE
This matter concerns a petition for post-arrest bail filed by an accused charged under Section 161 of the Pakistan Penal Code 1860 and Section 5(2) of the Prevention of Corruption Act 1947, regarding allegations of accepting illegal gratification for providing employment. The core legal question was whether the petitioner was entitled to bail despite a prior conviction in a separate case, given that an appeal against that conviction was pending, and considering the delay in the current FIR and the non-prohibitory nature of the alleged offences. The Court held that the petitioner was entitled to bail, reasoning that a person cannot be considered a 'convict' for the purpose of denying bail while an appeal against the conviction is still pending before a competent appellate forum. Furthermore, the Court emphasized that bail is a rule and refusal is an exception, especially when the offence does not fall within the prohibitory clause, and that bail cannot be used as a form of pre-trial punishment. Consequently, the petition was accepted, and bail was granted subject to the furnishing of bail bonds.
- Can an accused be denied bail on the basis of a prior conviction if an appeal against that conviction is currently pending?
- Does the grant of bail constitute a rule and refusal an exception for offences falling outside the prohibitory clause?
- Can bail be refused as a form of punishment before a final conviction is established?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
' SH. JAVAID SARFRAZ, J.--- Bashir Ahmad petitioner seeks post-arrest bail in case F.I.R. No, 21 of 2004 dated 19-7-2004 under section 161, P.P.C. Read with section 5(2) Prevention of Corruption Act, 1947, registered with Police Station Anti-Corruption, Lodhran.
2. The allegations as contained in the F.I.R. Against the petitioner are that he has received Rs,75,000 in instalments for providing job to the complainant. Out of this amount he received Rs,10,000 in the office of XEN Canal Thingi, and further remaining amount paid in instalments of Rs,35,000, Rs,10,000 Rs,5,000, Rs,10,000 and Rs,15,000 and finally Rs,10,000. The entire amount was given in order to provide the employment to the complainant. Learned counsel for the petitioner submits that there is delay of five years in lodging the complaint to the authorities and no cogent explanation has been given for this delay and no date and time has been mentioned on which the payment was paid by the complainant; that the offences do not fall within the ambit of prohibitory clause. Further submits that he is behind the bars for the last 4 months.
3. Learned State counsel has opposed the bail petition vehemently and submits that two other cases are pending against the petitioner regarding the corruption and in one case he has been convicted. Further submits that the petitioner was convicted in F.I.R. No, 65 of 2001, dated 26-12-2001 under section 161, P.P.C. Read with section 5(2), Prevention of Corruption-Act, 1947 registered at Police Station A.C.E., Vehari and was convicted to 3 years.
4. Arguments of the learned counsel for the parties have been heard and record perused.
5. The allegations against the petitioner are that he received Rs,75,000 in instalments for providing job to the complainant. The alleged occurrence is stated to have taken place 5 years back and after long delay, this case has been registered against the present petitioner. No date and month and year has been mentioned regarding the alleged payment of Rs,75,000 alleged to be made to the present petitioner. No recovery has been made from him. The objection taken by the learned State counsel that the petitioner is not entitled to bail because he has already been convicted in F.I.R. No, 65 of 2001 dated 26-12-2001 under section 161, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947 to three years is not sustainable as the learned counsel for the petitioner, at bar submits that an appeal has been filed against this conviction which is pending. As the appeal against conviction is still pending before the learned Appellate Forum therefore, it cannot be said that the petitioner is a convicted person. Moundeor and others v. The State PLJ 1989 SC 1; Abdul Halim v. The State PLD 1986 Pesh. 92 and Bashir Ahmad Zafar v. The State 1983 PCr.LJ 141(2) is referred. A person can only be called a convict if a competent Court of law has convicted him and the same has been finally decided in appeal.
6. In the light of the above, the petitioner cannot be refused bail on account of conviction passed by the learned trial Court. The petitioner cannot be kept behind the bars awaiting the final conclusion of his trial, which is not possible in near future. No useful purpose shall be served by keeping him behind the bars for such an indefinite period Needless to add that the bail cannot be refused as punishment. Respectfully reliance is placed on Ch. Abdul Malak v. The State PLD 1968 SC
349. There is no concept of punishment before the conviction. The offences do not fall within the prohibitory clause, therefore, as held by the Honourable Supreme Court of Pakistan in Tariq Bashir and 5 Others v. The State PLD 1995 SC 34 grant of bail is a rule and refusal thereto is an exception.
6-A. In the light of what has been discussed about, while accepting this petition, the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial Court.
7. The observations made above are of tentative nature and the learned trial Court shall decide the case strictly on merits and in accordance with the evidence so produced by the parties without being influenced by the observations herein.