MUHAMMAD AFZAL Versus State
The petitioner, Muhammad Afzal, sought post-arrest bail in a case registered under Section 5(2) of the Prevention of Corruption Act, 1947, read with Section 161 of the Pakistan Penal Code 1860, concerning allegations of demanding and accepting a bribe for effecting an inheritance mutation. The core legal question was whether the petitioner made out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, given that the tainted currency notes were recovered not from his direct possession but from a third party who subsequently filed an affidavit supporting the defense version. The Lahore High Court allowed the bail petition, holding that a case of further inquiry was made out since the recovery was disputed, the offences did not fall within the prohibitory clause, the petitioner had been in custody since his arrest with no likelihood of absconding or tampering with evidence, and further detention would amount to pre-trial punishment. The key principle laid down is that where recovery is doubtful and offences fall outside the prohibitory clause, the grant of bail is the rule and its refusal is an exception.
- Does a disputed recovery of tainted currency notes from a third party rather than the accused make out a case of further inquiry for the grant of post-arrest bail?
- Whether bail should be granted when the alleged offences do not fall within the prohibitory clause of the relevant statute?
- Can bail be refused as a form of preventive punishment pending the conclusion of a trial?
- Section 5(2), Prevention of Corruption Act 1947
- Section 161, Pakistan Penal Code 1860
ORDER
The petitioner, Muhammad Afzal, seeks post-arrest bail in case bearing F.I.R. No. 16 of 2005, dated 14-3-2005, under section 5(2) of Prevention of Corruption Act, 1947, read with section 161, P.P.C., registered at Police Station Anti-Corruption Establishment, Multan.
2. According to the F.I.R., the allegation against the petitioner is that he demanded Rs. 15,000 as bribe from the petitioner for effecting inheritance mutation regarding the land of the complainant. It is alleged that after negotiation Rs.5,000 was settled, which the complainant was to pay to the petitioner for the attestation of the mutation. According to the F.I.R., raid was conducted by the Magistrate and the petitioner was arrested.
3. Learned counsel for the petitioner submits that at the time of raid, the currency notes were in fact recovered from one Bashir Ahmad, who was present in the room, who handed over Rs.5,000 and such recovery is not effected from the petitioner. It is further submitted that Bashir Ahmad has filed an affidavit, which is Annexure "C" of this petition, in which it has been stated that this amount was in fact paid by the complainant to him for the purchase of buffalo from him. This statement has been made by him before the learned Special Judge, Anti-Corruption, Multan, on 8-4-2005; that no one saw the complainant handing over the money to the petitioner; that no conversation was heard by the raiding party and that the petitioner is in the judicial lock-up since 14-3-2005. Relies on 1995 MLD 766, 2003 PCr.LJ 175 (Lahore) and 2000 PCr.LJ 1903.
4. Learned State Counsel submits that this is a case of prompt F.I.R.; that the petitioner is duly nominated in the F.I.R. and that the conduct of the petitioner is such that he is not entitled to the grant of bail. Further submits that the challan has been submitted in Court.
5. Heard. Record perused.
6. The allegation against the petitioner is that he received Rs.5,000 from the complainant. However, when the raid was made this amount was not recovered from the petitioner but in fact from one Bashir Ahmad, who was in that room. The said Bashir Ahmad has filed an affidavit to the effect that this amount was in fact paid by the complainant. Such a statement has also been made by him before the learned Special Judge, Anti-Corruption, Multan. A case of further inquiry has been made out by the petitioner. He is no longer required by the police. He is behind the bars since 14-3-2005 and no useful purpose shall be served by keeping him behind the bars for an indefinite period. Bail cannot be refused as punishment and it will take a long time before his trial is finally concluded. The offences do not fall within the prohibitory clause, thus, entitling him to the grant of bait and in such-like cases, grant of bail is a rule and refusal thereto is an exception. Respectfully reliance is placed on PLD 1995 SC 34. The petitioner is a Government servant and there is no likelihood of his absconding.
7. Under the circumstances, this petition is allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
N.H.Q./M-1167/L Bail allowed.