Muhammad Waheed vs State

2012 M L D 1945

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD WAHEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Applications Nos.1142-P and 1132-P of 2012, decided on 17th August, 2012.

C r i m i n a l Procedure Code (V of 1898)---

--S. 497---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act,, criminal misconduct---Accused persons (Sanitary Officers of Health Department) allegedly took bribe from the complainant, which amount was subsequently recovered from them after trap proceedings/raid was conducted by Judicial Magistrate--- Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C, as it entailed punishment which might extend to seven years---Grant of bail was a rule and refusal an exception, for offences which carried punishment up to ten years or less---Accused persons were granted bail, in circumstances.

Muhammad Asif for Petitioner.

Matiullah Baloch for the State.

Date of hearing: 17th August, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---This judgment shall also decide Criminal

Miscellaneous Bail Application No. 1132-P of 2012 entitled "Sheikh Javed Akhtar v. State" as both these petitions are outcome of one and the same F.I.R.

2.Petitioners Muhammad Waheed and Sheikh Javed Akhtar through instant petitions seek their release on bail in case F.I.R. No.5 dated 30-7-2012 registered for offence under section 161, P.P.C. read with 5(2), PC Act at Police Station ACE District Haripur.

2A. The complainant Ishaq Hussain Shah filed a complaint to the police, wherein, it is alleged that he is running the business of dairy, products shop in Dhanda Chowk Haripur where he was present a day prior to the day of report when in the meanwhile Muhammad Waheed Tanoli and Sheikh Javed Akhtar Sanitary Patrol Officers of the Health Department District Haripur came and demanded from him a sum of Rs.5,000 as bribe for the whole year. On refusal of the complainant to give bribe, the said officers took samples of Milk and Yogurt from his shop and told him to come to them next morning along with four thousand rupees as bribe and they will clear the samples taken from his shop. The complainant showed his willingness to become a trap agent. On 30-7-2012, the learned Sessions Judge, Haripur deputed Judicial Magistrate, Haripur to raid and supervise the proceedings arranged for trapping the accused Muhammad Waheed and Sheikh Javed Akhtar in which respect three notes of Rs.1,000 denomination and two notes of Rs.500 denomination duly marked and signed were handed over to the complainant, who gave the tainted money of Rs.4,000 to Muhammad Waheed in the office of Sanitary Food Inspector EDO Health Office Haripur and thereafter the Circle Officer Anti Corruption along with the ACO and the learned Judicial Magistrate recovered the said amount from the accused, hence the case was registered against them.

3.Learned counsel for petitioners contended that there is no evidence against the petitioners to connect them with the alleged crime. Further submitted that no independent eye-witness has been cited to have witnessed the occurrence. He was of the view that as per contents of F.I.R. nothing has been obtained from the complainant by the petitioners as tainted money. The learned counsel maintained that the petitioners have no previous history of involvement in such like cases in the past and that investigation in the case is complete and the petitioners are no more required to the police for further investigation and that the offence for which the petitioners are charged do not fall within the ambit of restrictive clause of section 497, Cr.P.C., therefore, on the available material case for grant of bail is made out.

4.Learned State counsel while rebutting the arguments from other side contended that the petitioners are directly nominated 'in a promptly lodged first report and that the trap proceedings/raid was conducted by the learned Judicial Magistrate, the recovery memo and statements of P.Ws., prima facie, connect the petitioners with the alleged crime, therefore, they are well connected with the crime.

Arguments heard. Record perused.

5.Without discussing the merits of the case, which may prejudice the case of either party at the trial, suffice it to state that the offence for which the petitioners are charged do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. and entails punishment which , may extend to seven years, hence in the offences which carries punishment up to ten years or less than that, grant of bail is a rule and refusal is an exception, hence in this background the petitioners have made out a case for grant of bail.

For the aforementioned reasons, this and the connected petition are allowed and the petitioners granted bail in the sum of Rs.2,00,000 each with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.

Above are the detailed reasons for the short order of even date.

MWA/300/P Bail granted.