This post-arrest bail application was filed before the Sindh High Court seeking bail in Crime No. 2 of 2012 registered under Section 161 PPC read with Section 5(2) of Act II of 1947. The prosecution alleged that the applicant, a public servant, extorted money and demanded illegal gratification from the complainant, subsequently receiving part payment during a raid by a trap party. The core legal issues were whether the recovery of money during a trap raid without members of the raiding party hearing the conversation or seeing the actual exchange renders the case one of further inquiry, and whether bail should be granted where the offence does not fall within the prohibitory clause of Section 497 Cr.P.C. The High Court granted post-arrest bail, holding that failure of the raiding party to hear the conversation or witness the exchange necessitates further inquiry, and re-affirming that grant of bail in non-prohibitory offences is the rule and refusal is an exception.
' AFTAB AHMED GORAR, J.---Through this application, applicants seeks post-arrest bail in Crime No,2 of 2012 of Police Station ACE Hyderabad for offence punishable under section 161, P.P.C. Read with section 5(2), Act II of 1947.
2. The allegations against the applicant as per F.I.R. Lodged by complainant Hakim Ali are that on 13-9-2012 at 10-00 a.m. He came to the cattle pond of the complainant, apprehended him in presence of Shoukat Ali, Abdul Rehman and other villagers, took out Rs,2,000 during his search and also confined him at Police Station Rahoki. It is also alleged that applicant demanded illegal gratification of Rs,10,000 for release of the complainant, however, after negotiations, amount was settled at Rs,7,000 and the complainant's brother paid him Rs,3,000 and got released the complainant while remaining amount was to be paid on 19-9-2012. Accused threatened to involve the complainant in false cases in case of his failure to pay remaining bribe amount.
3. Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the case. He further contended that the F.I.R. Is delayed by 7 days without any plausible explanation. Learned counsel submits as per F.I.R., the accused used to come to the cattle pan of the complainant and take-amount but he never made any complaint to any the complainant and take amount but he never made any complaint to any authority. Learned counsel further contended that the trap party did not hear the conversation between the complainant and accused at the time of alleged release of the complainant in order to ascertain that the amount subsequently given by the complainant to the accused was in fact the amount of illegal gratification. He contended that in view of the above, the case of the applicant requires further inquiry and the applicant is entitled for bail. Learned counsel for the applicant has relied upon the case of Kodomal and another v. The State (2001 PCr.LJ 1789), Nazar Muhammad v. The State (2003 PCr.LJ 175), Tarique Bashir and 5 others v. The State (PLD 1995 SC 34) and Bashir Ahmad v. The State (2001 SCM R 634).
5. Learned Assistant Prosecutor-General Sindh has opposed the bail application and contended that the accused applicant is nominated in the F.I.R. With specific role of apprehending the complainant, settling the amount of illegal gratification, receipt part payment of Rs,3,000. He further contended the applicant was caught hold red-handed when he received remaining amount of illegal gratification. He submits that there is sufficient material available on record to prima facie connect the applicant with commission of offence and he is not entitled for concession of bail.
6. I have heard learned counsel for the parties and perused the record. Admittedly, complainant did not make any complaint against the accused when he was allegedly visiting his cattle pan and receiving amount of Rs,500 or Rs,1,000. It is also admitted position that the trap party did not hear the conversation between the accused and complainant party at the time when alleged illegal gratification was settled, part payment was made, and remaining amount was agreed to be paid on 29-9-2012. Though the amount of Rs,4,000 paid by the complainant to accused was recovered from the applicant during raid by trap party, however, it is yet to be determined whether it was the part payment of illegal gratification allegedly settled between him and the accused. The applicant is behind the bars since 19-9-2012. The offence under section 161, P.P.C. Provides punishment upto three years imprisonment, which does not fall within prohibitory clause of section 497, Cr.P.C.
8(sic.) In the case of Bashir Ahmed v. The State (supra); it has been held that in the charge of receiving bribe by public servant; transactions not only to the payment of bribe money to the accused by the complainant is to be seen but also the conversation between them has to be heard by the members of the raiding party, which is necessary to eliminate the chances of involvement of innocent persons. In present case also neither the members of raiding party saw the accused while receiving the bribe amount nor heard conversation between them.
9. In the cases of Kodomal and another . v. The State, Nazar Muhammad v.. The State and Tarique Bashir and 5 others v. The State (supra), it has been held in the offences not falling within the prohibitory clause of section 497(1), Cr.P.C., grant of bail was a rule and refusal was an exception. In the present case also the offence with polish the D applicant stands charged does not fall within prohibitory clause of section 497, Cr.P.C.
10. For the foregoing reasons, I am of the considered view that case of the applicant requires further inquiry and he is entitled for concession of bail. Accordingly, applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs,100,000 (One hundred thousand) and P.R bond in the like amount to the satisfaction of the trial Court.
11. Needless to say that the observations made hereinabove are tentative in nature and will not prejudice the case of either party at the time of trial.
12. This Criminal Bail Application was allowed and applicant was admitted to bail vide short order dated 25-2-2013 and these are the reasons for the same. Listed application stands disposed of.