ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  258   of   2014

DATE        ORDER WITH SIGNATURE OF JUDGE

28.03.2014.

Barrister Mohsin Shahwani alongwith Mumtaz Ali Soomro, Advocates for applicants.

            Mr. Zahoor A. Baloch, D.A.G.

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             The instant after arrest bail application has been preferred by the applicants against the order dated 07.03.2014, whereby the learned Special Judge (Central) Hyderabad has dismissed the bail application of the present applicants in Crime No.17/2014 registered at P.S. FIA Crime Circle, Sukkur u/s 409, 109 PPC r/w Section 5(2) of Prevention of Corruption Act, 1947. The learned trial Court while dismissing the bail application of the present applicants, through a common order has granted bail to the rest of applicants / accused on the ground of further inquiry.

2.         Heard learned counsel for the applicants and learned D.A.G. Learned D.A.G. submits that the case of prosecution is entirely of oral evidence except the statements of P.Ws u/s 161 Cr.P.C and no document has been referred to or produced by the prosecution in support of its case. Learned D.A.G. Sindh has admitted that other eight accused have been granted bail through the same order by observing that their case is of further inquiry, however no reasons have been assigned while recording such observation. Primarily learned DAG did not oppose the grant of bail.

3.         After going through and perusal of the material on record, I have observed as follows:-

(i)         The case of prosecution is based on a complaint of the contractor who alleged that he was forced to pay bribe to the present applicants / accused and in support of paying such bribe, statements u/s 161 Cr.P.C. of two P.Ws have been relied upon. On perusal of such statements, it appears that such statements are in contradiction to the version of complainant in as much as the place of incident as well as the amount referred to are different in material terms. The complainant had alleged that he was asked to pay bribe amounting to Rs.1.5 Million, whereas both the eye-witnesses have stated in their 161 Cr.P.C. statements that the amount of bribe demanded was 2.7 Million. Further the said P.Ws are either the employees of the contractor and / or friends of the complainant / contractor. In view of such position, firstly that such statement do not corroborate with the contentions of the complainant and for the fact that they are not independent witnesses hence cannot be considered at bail stage.

(ii)        The learned trial Court while refusing bail to the present applicants observed that misappropriation and plunder of public money / funds by government servants has indeed taken an alarming proportion and such a loot of public funds has become easy and cannot be allowed to be continued and that courts are required to take note of such situation. Though there is no cavil to this proposition, however this cannot be attributed against the present applicants in a generalized term without any such evidence available on record. Merely on the basis of allegation of such nature, bail cannot be withheld as a punishment until and unless sufficient material is available on record, whereby the accused can be prima facie said to be involved in commission of said crime.

(iii)       The learned trial Court was also misdirected in granting bail to eight other accused by merely observing that their case is of further enquiry whereas no such reasons have been recorded for arriving at such conclusion. By doing so, the learned trial Court has perhaps erred in not applying the principle of further inquiry to the case of present applicants. I also tend to agree with the submissions of learned D.A.G. that prosecution has failed to bring on record any documentary evidence except the oral version and statements u/s 161 Cr.P.C. Since this is a crime with regard to misappropriation of funds in awarding contracts on behalf of government, therefore, it was incumbent upon the prosecution to at least bring on record some documentary material so as to implicate the present applicants / accused, which the prosecution has failed to do so. The prosecution has though alleged that some payments were also made by complainant through cheque which was encashed from the Bank by one Clerk Jatindar Kumar and peon Mohib Ali of the office of XEN Qazi Naeer-ud-Din (principal accused and absconder till date) but has failed to implicate the said persons either as an accused or as a witness and further no statement of said person has been recorded u/s 161 Cr.P.C.

(iv)       It is also important to note that in FIR, the date of occurrence of the incident is 2009-13 (5 years) whereas the FIR was lodged on 25.02.2014. Similarly in the 161 Cr. P.C. statements the date of such incident of giving alleged bribe is 6.2.2013, whereas the complainant has not given / mentioned any specific date of such alleged payment of bribe. The prosecution has not been able to show any reason for such a delay in reporting of crime by the complainant hence the case of complainant / prosecution becomes doubtful.

(v)        The case has been registered under Section 409 and 109 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, and the maximum punishment provided for under Section 409 PPC is imprisonment for life or with imprisonment of either description which may extend to 10 years and shall also be liable to fine, whereas insofar as Section 109 PPC is concerned, the same is not relevant/applicable in view of the specific provision of section 409 PPC. Under Section 5(2) of P.C. Act, 1947, the punishment may extend to 7 years. In the instant case at this stage of the case it cannot be exclusively determined that the accused will be awarded imprisonment for life as the alternate punishment is up to a maximum of 10 years, hence the case does not fall within the prohibitory clause of section 497(1) Cr.P.C. Further irrespective of this observation, it is also worth noticing that the case of the prosecution is in respect of alleged payment of bribe to a public officer on the basis of complaint of a private party and has been taken cognizance of in terms of section 5(2) of the PCA 1947 and nothing has been brought on record in so far as the applicability of section 409 PPC is concerned. Hence following the settled law that at the stage of bail, the lesser of the two punishments is to be taken in applying the prohibitory clause, hence the instant matter even otherwise does not fall within the prohibitory clause u/s 497(1) Cr.P.C.

4.         In view of hereinabove, I was convinced that the applicants / accused had made out a case of admission to bail and by means of a short order, I had granted bail to the applicants / accused on furnishing surety of Rs.1.0 Million each with P.R. Bond in the like amount before the trial Court in addition to surrendering their passports as well. Above are the reasons in support of such short order. The above observations are tentative in nature, and shall not prejudice the case of either party at the trial stage. It is further observed that if the applicant / accused misuse the concession of bail at any stage of the case, the learned trial court is at liberty to initiate appropriate action in accordance with law including the process of cancellation of bail.

5.         The above bail order has been passed by me in a shorter format prescribed by the Honourable Supreme Court in its order dated 20.03.2014, passed in Criminal Petition No.203-L of 2014, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned D.A.G.                       

                                                                                                            JUDGE

Tufail