SYED MUHAMMAD WAQAR HAIDER NAQVI vs THE STATE
This is a post-arrest bail application filed by the applicant Syed Muhammad Waqar Haider Naqvi in Crime No. 70/2019 registered under Sections 161 and 34 of the Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947. The core legal question involved whether the applicant is entitled to post-arrest bail where the trap proceedings were conducted without a Magistrate, delay occurred in submitting the final challan, and the offences do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure. The Sindh High Court allowed the bail application, holding that the absence of a Magistrate during the trap, lack of explanation for delayed FIR registration, delay in submitting the final charge-sheet, and the non-applicability of the prohibitory clause brought the case within the scope of further inquiry and made bail the rule. The key principles laid down include that speedy investigation is a fundamental right under Article 10-A of the Constitution of Pakistan, and that bail should be granted as a rule when offences do not fall within the prohibitory clause of Section 497 CrPC unless exceptional circumstances exist.
- Whether the absence of a Magistrate during anti-corruption trap proceedings creates further inquiry regarding the genuineness of the case for the purpose of bail?
- Does failure to submit a final charge-sheet within the statutory period entitle an accused to post-arrest bail?
- Whether offences not falling within the prohibitory clause of Section 497 CrPC entitle the accused to bail as a general rule?
- Is speedy investigation considered an inalienable right under the Constitution of Pakistan, 1973?
- Section 161, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 11(2), ACE Rules 1993
- Section 497, Code of Criminal Procedure 1898
- Article 10-A, Constitution of Pakistan 1973
Abdul Maalik Gaddi, J. Through instant bail application, applicant/ accused Syed Muhammad Waqar Haider Naqvi seeks post arrest bail in Crime No.70/2019 registered under Sections 161/34 of PPC read with Section 5(2) of Prevention of Corruption Act-II of 1947 of A.C.E, Karachi. Prior to filing this bail application, applicant approached to the trial Court for post arrest bail, but the same was dismissed vide order dated 03.10.2019. Hence this bail application.
2. Brief facts as narrated in the FIR are that, this case was registered on an application of complainant Naveed son of Abdul Majeed addressed to the Deputy Director ACE East Zone, Karachi, who directed to conduct trap under the supervision of AD Muhammad Farooq Bugti of ACE, Karachi, due to non-availability of Magistrate, and processed for action under Section 11 (2) of ACE Rules 1993, and report. It is also alleged that accused demanded Rs.4,00,000/- from complainant out of which he made payment of Rs.2,00,000/- in lieu of non-demolition of house/ building situated at A-5, Dost Muhammad Goth, Azizabad, Block-9, FB Area, Gulberg Town, Karachi, whereas, a time was fixed for payment of remaining amount. However , during raid the present applicant was arrested in presence of Farooq Bugti, Assistant Direc tor, Anti-Corruption, East Zone, Karachi and prepare such memo of arrest and recovery , hence this case.
3. Learned counsel for applicant has argued that the applicant is innocent and has been falsely implicated by I.O. due to his malafide intention and ulterior motives; that nothing was recovered from the possession of the applicant nor he is the Deputy Director; that the trap was not conducted by a competent authority under the relevant laws/ rules. The case of the applicant does not fall within the prohibitory clause of Section 497 CrPC; that no inquiry under Section 3 of Anti-Corruption Laws was conducted against two other senior officers of SBCA, who have been named as beneficiary of the bribe; that the applicant is behind the bars since his arrest and uptil now, no final challan has been submitted, therefore, according to counsel for applicant, the applicant could not be detained in jail for indefinite period. Therefore, the applicant is entitled for bail.
4. On the other hand learned APG has opposed this bail application by submitting that prima facie case is made out against applicant/ accused, as he was caught red-handed while receiving the tainted money in presence of trap party .
5. Parties' advocates have been heard and record perused.
6. It is settled principle of law that at bail stage, deeper appreciation of evidence cannot be gone into, but a bird-eye view is to be taken to available record before the Court to satisfy prima-facie, whether accused is/ are connected with commission of offence or not. Even otherwise, benefit of doubt will go to accused even at bail stage. Keeping in view the above principle, I have gone through the case papers so made available before me, which shows that as per contents of the FIR, the actual date and time of alleged incident is mentioned as only 'September 2019', but instant FIR was lodged on 25.9.2019 without plausible explanation. No date and time of the incident is mentioned in the FIR. When this fact was confronted to learned APG for explanation, he has no satisfactory answer with him.
Record shows that trap was arranged and applicant was arrested by Mr. Rato Khan Jalbani, Inspector Anti- Corruption Establishment, Karachi under the supervision of Mr. Muhammad Farooq Bugti, Assistant Director , Anti- Corruption Establishment, Karachi and no Magistrate was associated during these proceedings. I have again asked the question from learned APG, why the services of the Magistrate have not been obtained for trap proceedings, again he has no answer with him. Since the services of the Magistrate have not been acquired for trap proceedings, therefore, question arises whether the incident has taken place in a fashion as stated in FIR or otherwise, as such, this fact lead to me to the facts involved in this case requires further inquiry . It also reveals from the record that this matter pertains to outcome of illegal construction made by complainant without approval from the SBCA, although notices were issued to him by SBCA, Gulberg Town. Under these circumstances, the story stated by complainant against applicant also requires evidence at trial.
7. It is noted that the applicant/ accused is in custody since his arrest. Only interim charge-sheet has been submitted on 08.10.2019, almost one month has been passed but final charge-sheet has not yet been submitted.
During the course of arguments, I have specifically asked the question from investigating officer of the case that why the final charge-sheet has not yet been submitted, he has no satisfactory answer with him. Again I have inquired from him that when final charge-sheet would be submitted, he replied that it will take some time, as he has to obtain permission from his high-ups. As observed above, the applicant is behind the bars since his arrest, almost one and half months have been passed after registration of FIR, but final charge-sheet has not been submitted.
Under the law, the final charge-sheet should have been submitted within 14 days plus 03 days as grace period, which has not been done in this case. It is informed by the Investigating Officer that the applicant is in judicial custody , as such, he is no more required for further investigation. If the investigation shall run in such a speed, the same would not conclude in near future, therefore, this Court is left with no option but to release the applicant/ accused on bail, as the speedy investigation and trial are the alienable right of every accused which could not be denied in any circumstances as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
8. It is also noted that this applicant/ accused has been booked in this case under Section 161/ 34 PPC read with Section 5(2) Act-II-1947. Though these offences are not bailable but their punishment are also do not fall within the prohibitory clause of Section 497 Cr.PC. Therefore, grant of bail in such circumstances is a rule as held by the Hon'ble Supreme Court of Pakistan in its various pronouncements and its refusal an exception. No exceptional circumstances appear in this case to withhold the bail of the applicant. Even otherwise on merits, as stated above applicant has made out a case for bail.
9. In view of the above, this bail application is allowed and the applicant/ accused who is in custody is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the trial Court.
10. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant without making any reference to this Court.
Instant bail application stands allowed in the above terms.