Raja MUHAMMAD ZAHID vs THE STATE

' Raja Muhammad Zahid, a Sub-Inspector Cooperative Society Mansehra, having been charged under section 161, P.P.C. Read with section 5(2), Prevention of Corruption Act vide F.I.R. 4, dated 27-4- 1998 of Anti-Corruption Establishment Mansehra, and having been refused bail by the learned Special Judge Anti-Corruption N.-W.F.P. Peshawar, has come up to this Court.

2. One Muhammad Khakan Kiani son of Abdus gamed, his brother Malak Aman and a few others being members of Cooperative Society Mansehra had received some loan the original amount whereof was Rs,1,62,464 which, after including the mark-up and expenditure of the Court had gone up to Rs,2,71,288. The petitioner Raja Muhammad Zahid was deputed to make various recoveries in which connection Khakan stood arrested and was detained in prison. The allegation brought about against the petitioner by Malak Aman is to the effect that in order to procure/arrange the release of Khakan, the Sub-Inspector demanded a bribe of a sum of Rs,50,000. Malak Aman made a complaint to the Chairman District 'Khidmat Committee' who in turn arranged a raid as a result whereof the tainted money passed to the petitioner was recovered from him and hence the charge.

3. There is a promote on the judicial file according to which the Cooperative Society of Baffa Doraha had received a sum of Rs,1,39,000 and executed a promote in favor of the Bank. On behalf of the Cooperative Society the promote was executed by Abdus Samad, Malak Aman, the present complainant, and Muhammad Yousaf. At two places the promote is signed by Malak Aman on 15- 10-1985 whose signatures are substantially different from the one available on the present complaint, dated 25-4-1998. The very tenor and style of the two signatures is absolutely different from each other. It remains yet to be determined by the prosecution at trial as to whether the present complaint was in fact lodged by Malak Aman.

4. The trap in the instant case is not supervised by a Magistrate 1st Class and hence is materially illegal and violate of the principle laid down in PLD 1968 Lah.

101. It is not known as to what dialogue occurred between the accused-petitioner and the one who made the payment. This dialogue and the ascertainment thereof becomes necessary in the wake of the plea taken by the accused that no doubt he had received a sum of Rs,50,000 but it in fact was towards the payment of loan. What went between the two at the time of the passing of the tainted money was, therefore, necessary to be brought on record in view of the principle laid down in 1996 PCr.LJ 1499.

5. Learned State counsel Miss Nighat Afsar could not produce and could not lay hands upon any Legislation, Enactment or Ordinance whereby a Khidmat Committee' had the lawful authority to conduct raid against any civil servant or to organize a trap like one in hand.

6. Learned counsel for the petitioner has produced and has relied upon a certificate from the Manager Frontier Provincial Cooperative Bank Ltd. Mansehra showing that in the past two years or so most of the recoveries were made through the field staff. In addition to such certificate there is a statement, dated 18-5-1978 of one Mian Kamal Shah, Assistant Registrar Cooperative Societies (at pages 15, 16 and 17 of the Judicial file) who has given a few details about the manner and mode of recovery but the most relevant is the version which is given in the last about 6 lines of his statement. He says that Raja Zahid petitioner while receiving the recovery (of Rs,50,000 in question) had written an application in his own hand for Malak Aman complainant wherein a prayer was made to the Chief Minister and Registrar Cooperative Societies the remitted and the amount which he had been paying (Rs,50,000) should be deposited towards the principal amount. Mian Muhammad Kamal Shah has given it in writing that such application written for Malak Aman by the accused at the time recovery was gone through by the Deputy Commissioner as well. If.All these statements are taken together, one feels that the plea taken by the accused that he had received the amount towards the payment of original loan is not a plea taken as a solitary one. Till such plea is proved at trial, the prima facie indications whereof are available on record, the petitioner is entitled to be released on bail. He is a Government servant, no more required to be detained for further investigation and there are no dances of his ascendance.

' The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs,1,00,000 with two sureties in the like amount is furnished to the satisfaction of learned Senior Special Judge Anticorruption/Sessions Judge Mansehra.