MUHAMMAD SALEEM KHAN vs STATE
This matter concerns a post-arrest bail application filed by the applicant, Muhammad Saleem Khan, who was charged under Sections 161 and 34 of the Pakistan Penal Code 1860, read with Section 5(2) of the Prevention of Corruption Act 1947, following allegations of demanding and accepting a bribe. The core legal question was whether the applicant was entitled to the concession of bail given the circumstances of the trap raid and the nature of the alleged offence. The Court held that the applicant was entitled to bail, observing that the trap party failed to overhear the initial bribe negotiations, that there was a failure to comply with the requirements of Section 103 of the Code of Criminal Procedure 1898 regarding independent witnesses, and that the arrest occurred at a location inconsistent with the FIR. Furthermore, the Court noted that the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, and that the investigation was complete. The key principle laid down is that where an offence does not fall within the prohibitory clause, the grant of bail is the rule and refusal is the exception.
- Does the failure to comply with Section 103 of the Code of Criminal Procedure 1898 regarding independent witnesses constitute grounds for granting bail?
- Is the grant of bail the rule and refusal the exception for offences that do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does the completion of an investigation and the fact that the accused is a government servant justify the grant of bail?
- Section 161, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' Through this bail application, applicant Muhammad Saleem Khan, seeks post arrest bail, after rejection of his bail application vide 'Order dated 3.12.2015, passed by learned Incharge Judge, Anti- Corruption (Provincial) Badin, in Crime No, 16 of 2015, under Sections 161/34, PPC, r/w. Section 5(2), Act II of 1947.
2. Brief facts as per FIR are that Complainant Shah Jahan stated that he is owner of immovable property of 5000 sq.Ft near Mehran Shadi Hall, Badin City and he was constructing shops over the area of 1100 sq.Ft. On 20.11.2015, Muhammad Saleem Khan, Inspector and Shams Shah Clerk from Sindh Building Control Authority, Hyderabad, came at the Site and demanded Site Plan, Challan etc and the Complainant said to them that the construction of his house is 'old one and he is constructing the shops only and the said Officials were asked by the Complainant to arrange for him the Site Plan and Challan of the Shots; whereupon the said accused persons said that the Challan would be for the entire plan, otherwise the entire house would be demolished. The said persons demanded bribe of Rs, 4,00,000/- from the Complainant and ultimately agreed to Rs, 1,00,000/- and that the Accused persons will come on 26.11.2015, for receiving Rs 50,000/- and the remaining Rs, 50,000/- would be received from the Complainant on 30.11.2015. The Accused persons on 26.11.2015 at 11:00 a.m. Will come to the Complainant's place for receiving bribe of Rs, 50,000/-, for which the Complainant has lodged this Report.
3. After arranging the Raid/Trap Party by ACE Police the accused/applicant, was arrested on 26.11.2015, from Mehran Hotel, Badin and Rs, 50,000/- was recovered from the said applicant/accused.
4. After hearing the learned counsel for the applicant and learned APG, who opposed the bail application and after going through the case file I have observed as follows:--
(a) Admittedly the Trap Party did not hear the conversation between the accused and complainant party, at the time when the bribe amount was finalized and partly amount paid and remaining amount was agreed to be paid on 26.11.2015;
(b) Admittedly the applicant has been arrested as per arranged trap, wherein two private mashirs were earlier arranged, but the accused was arrested from the Hotel, and inspite there is no independent Mashir shown from the spot and even no attempt has been shown for the same on the part of Police, as such the requirement of Section 103, Cr.P.C. Is missing;
(c) As per FIR the applicant/accused persons agreed to visit the Complainant's place for getting the bribe amount, whereas the applicant/accused has been arrested from another place i.e, Hotel;
(d) The offence does not fall within the Prohibitory Clause of Section 497(1), Cr.P.C. And the grant of bail in such cases is a rule and refusal is an exception;
(e) The applicant is a Government Servant and the Investigation has been completed as such the custody of the applicant is no more required by the Prosecution;
(f) 2013 P.Cr.L.J 1051 and SBLR 2015 Sindh 1116, cited and relied upon on behalf of applicant are relevant and are in support of the aforesaid observations.
5. In view of the above, the case of the applicant falls with the ambit of Section 497(2), Cr.P.C. And as such the applicant is entitled the concession of bail. Accordingly, the applicant is admitted to bail subject to furnishing solvent surety, in the sum of Rs, 1,00,000/-[Rupees One Lac only] and PR Bond in the like. Amount to the satisfaction of Trial Court.
6. The above observations are tentative and shall not prejudice the case of either side before the trial Court.