AFSAR ALI vs THE STATE and anothers
This matter arises from a bail application filed by Afsar Ali, a Junior Clerk in the Office of Deputy Commissioner, Swabi, who sought post-arrest bail after being refused by the lower forum. The accused was charged under Section 161 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947, pursuant to an F.I.R. registered by the Anti-Corruption Establishment for allegedly accepting a bribe. The core legal question was whether the petitioner was entitled to post-arrest bail considering the tentative assessment of the record, the lack of clarity regarding his role in distributing flour quotas, visible tampering over recovery memos, and the non-applicability of the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Peshawar High Court held that the petitioner was entitled to the benefit of doubt at the bail stage due to serious documentary controversies regarding recovery memos and the undetermined role of the accused, coupled with the fact that the offence did not fall within the prohibitory clause and the petitioner was a government servant unlikely to abscond. The Court laid down the principle that where recovery memos bear visible tampering and the accused's official responsibility remains doubtful, further inquiry into his guilt warrants the grant of post-arrest bail.
- Is an accused entitled to post-arrest bail when there is visible tampering over recovery memos?
- Does an offence under Section 161 of the Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can bail be granted to a government servant when his role in the alleged crime requires further determination at trial and he is not likely to abscond?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497, Code of Criminal Procedure 1898
' Afsar Ali, a Junior Clerk in the Office of Deputy Commissioner, Swabi is apprehended and refused bail by the forum below on charges under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act vide F.I.R. No,1, dated 22-1-2000 of the Anti-Corruption Establishment, Swabi, for accepting a bribe of Rs,500 from the complainant Ijaz Ahmed, who had volunteered to become a trap agent.
2. The background is to the effect that the complainant was a shopkeeper to whom flour quota of fifty bags daily used to be delivered. His quota was abolished and instead given to somebody else.
Accused was responsible for the distribution of quota and when resorted to for the needful, he demanded the bribe of Rs,500 and the remaining was to be paid after the needful.
3. It is not on record as to how a Junior Clerk in the Office of Deputy Commissioner could be responsible for the supply of quota and for stopping 'such supply. His position for exploiting the complainant remains yet to be determined at trial.
4. There is a visible tampering over the recovery memos. Prepared before as well as after the trap and hence it remains yet to be determined at trial as to who made the recoveries and who were the witnesses thereof. Till this serious documentary controversy is solved at trial, the petitioner is entitled to the benefit of doubt at the stage of bail.
5. The offence prima facie does not fall within the prohibitory clause of section 497, Cr.P.C. And the petitioner being a Government servant, is not likely to abscond. 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 (one lac) with two sureties each in the like amount is furnished to the satisfaction of learned Special Judge, Anti-Corruption.
Cited by 3 cases
- MIRZO KHAN vs The STATE 2017 YLR 619
- MUHAMMAD AFZAL Versus State 2005 PCrLJ 1814
- DAYAR KHAN vs THE STATE 2001 P Cr. L J 1654