By this single order bail application Cr. Misc. 202/08 in hand alongwith the connected Cr. Misc. No, 106/08 are being disposed of as both the petitions have arisen out of case FIR No, 970 dated 29.12.2007 charge under Sections 365-A/34 PPC, registered at Police Station Mirpur Abbottabad.
2. Respondents Muhammad Anwar, Muhammad Nawaz and Munir Hussain Shah, were granted bail by the learned Judge, ATC, Abbottabad, per order dated 7.4.2008 and vide the same order bail of co-accused Baber Rehman was rejected.
3. Mst. Maimoona Sharif, complainant has filed application for cancellation of bail granted to the above stated accused-respondents and accused/petitioner Baber Rehman has filed separate application for the grant of bail.
4. I have heard the learned counsel for the parties, State counsel for the State and perused the record carefully.
5. Briefly stated facts of the case are that Mst. Maimoona Sharif on 29.12.2007 reported to the local Police that on 11.12.2007 at 8.00 a.m., three unknown persons entered into her house on the pretext of repairing heaters; that at the relevant time she alongwith her sister was present in the house of their nephew Shakeel as their parents had gone to Saudi Arabia for Hajj; that Shakeel was not at home; that the above said three persons drew out their pistols, threatened them with dire consequences and directed them to keep quite else, they will be done away. Further it is stated that they took one Camera from the house, snatched her mobile set and also abducted her on pistol point in Suzuki Pick-up, which they had parked out side the house. They drove towards Mansehra and on reaching Qalander Abad, they confined her in a room of under construction house. Further she disclosed in her report that at about 5 p.m. a bearded man of short stature took her in a Suzuki Carry Van to a Hotel in Mansehra Ada. The Hotel keeper declined to give him room as he was not possessing National Identity Card, upon which he contacted some one on her snatched mobile who spoke to Manager of the Hotel where after he agreed to give them a room.
The abductor took her into the room and there on her phone called her nephew Shakeel that if they were interested in her honour and life, they should immediately pay Rs, 50,00,000/- as ransom for her release. She added that he remained intact with her family members and lastly on receipt of Rs, 16,00,000/-as ransom, the kidnaper handed over her to her cousin Muhammad Anwar at 10.00 p.m. on the same day of occurrence. Further she disclosed that she informed her parents who were abroad and on 18.12.2007 her uncle Shafiq returned to the country. They inquired from the Hotel keeper about the person on whose guarantee and identification, he had rented out the room to the culprit who disclosed the name of Khushal, Plumber and thereafter the accused were traced out.
6. After registration of the case, a team of senior Police Officers was constituted who visited the house of the complainant, prepared sketch of the same and noted down various pointes constituting scene of occurrence. Further she took the Police Officer to the house at Qalander Abad where she was kept for some time and from there to the Hotel at Mansehra. The Investigating Officer enquired from the Hotel keeper who disclosed the name of Khushal, Plumber, on whose identification and recommendation room was rented out to accused Baber Rehman. Further he disclosed that the accused had introduced her as his "family". The I.O. arrested accused Baber Rehman, Muhammad Nawaz and Munir Hussain Shah and produced them before the Court for Police custody. During the Police custody, accused Baber Rehman led the I.O. to his house and handed over the bag in which he has received the ransom amount. He handed over Rs, 80,000/- to the I.O. which per his statement was his share in the ransom amount. He also handed over mobile phone set to the I.O. and later on produced the snatched camera through Zakir Hussain as he had left the same in Karachi with his father.
7. Likewise on the pointation of accused Munir Hussain Shah Rs, 36000/- were recovered which he had received as his share out of the total ransom amount. He also made a confessional statement involving himself and the co-accused. Similarly Baber Rehman confessed his guilt before the Judicial Magistrate.
8. The I.O. took into possession the Hotel record, a Certificate from the Bank Manager showing that on the day of occurrence, Shakeel, nephew of the accused had en-cashed Rs, 16,00,000/- from the Bank.
9. It so happened that after the arrest of the accused and at the time of their bail application, the Presiding Officer of the ATC Court Abbottabad directed the Inspector General of Police for fresh inquiry into the matter through honest, fair and God fearing person/s. Accordingly an inquiry was conducted and according to the report of the Inquiry Officer, the accused were involved in the commission of offence. However, the Inquiry Officer expressed doubt about the involvement of Muhammad Anwar, accused, who as per statement of the complainant was instrumental in connection with her abduction for ransom. The learned Presiding Officer of the said Court doubted correctness of the report and thereafter proceeded to record the statement of Baber Rehman, accused, on oath and also examined the Bank Manager and a few others on the basis of his own inquiry at the stage of bail application, he allowed bail to the accused-respondents named above and found Baber Rehman accused guilty of the crime and rejected his bail application.
10.It has been correctly argued by the learned counsel for the parties that the learned Judge ATC at the stage of bail application, illegally and wrongly assumed the function of a trial Court and surprisingly recorded statement of one of the accused on oath as to the allegations levelled against him, ignoring the fact that he had made the confession before the competent Court. He took an exaggerative view of the matter as to the complainant relation with the petitioner Baber Rehman and introduced quite a new case at bail stage which aspect of the case was never pleaded by the accused at any stage of the investigation. So in this view of the matter, the opinion of the learned Judge ATC is liable to be ignored altogether as to the merits of the case. It has been consistent view of the superior Courts that appreciation of evidence and drawing the conclusion there from is the exclusive function of the trial Court and it cannot be anticipated at bail stage. The impugned order of the learned lower Court shows that he had made elaborate and deep assessm ent of the evidence which is not permissible at the time of disposal of bail application. On the subject one can refer PLD 1978 S.C. 265. It appears from the proceedings taken by the learned Judge ATC that after recording statement of accused on oath, he entered in elaborating and sifting of evidence and assessed the evidence in depth to the extent that he in a way has disposed of the case on merit which is the sole function of the trial Court to analyze the legal worth of the evidence when it is produced, tested by the examination and cross-examination of witnesses. In these circumstances, I hold that the impugned order of the learned subordinate Court is neither based on proper reasoning nor correct exposition of law and as such it is open to exception.
11. Now reverting to the merits of the case, I am of the view that there is overwhelming direct as well as circumstantial evidence connecting the petitioner Baber Rehman with the crime. He has been charged in the statement of eye-witnesses. There is his own in-culpatory confessional statement duly corroborated by recovery of incriminating articles and Bank record etc. and as such there are reasonable grounds to believe him guilty of the crime. Moreso the offence is covered by the prohibitory clause of Section 497 Cr.P.C, and thus he does not deserve the concession of bail.
12. With regard to Cr. Misc. moved for cancellation of bail granted to the accused respondents, suffice it to say that the Prosecution case against them is a little bit on different footing. They have not been shown abducting the complainant upto Qalander Abad and thereafter to Mansehra. They have not been charged in her statement for demanding ransom amount from her relatives nor that they took her to the said Hotel. Moreover, the grounds for the grant of bail and cancellation of bail are always different. In the instant case the Investigation is almost complete, trial is likely to commence in the near future and there is no proof or allegations as to the misuse of privilege of bail nor there is any apprehension of their abscondence. The request of complainant for cancellation of their bail, therefore, is not acceded to. At this stage it is observed that the learned Judge ATC has no power under Section 497 Cr.P.C. to ask the accused for depositing of Bank Guarantee and Indemnity bond etc., for release on bail therefore, to legalize the matter the accused respondents are directed to furnish fresh bail bonds in the sum of Rs, 2,00,000/- (Rs, Two Lacs) with two sureties each in the like amount to the satisfaction of the trial Court. The surety must be local, reliable and men of means. They are directed to do the needful within ten days from today failing which order granting them bail shall be reconsidered and they will face the consequences.