SHABBIR AHMED vs The STATE and anothers

ORDER

' Through the instant petition filed under section 497(5), Cr.P,C. Shabbir Ahmed petitioner/complainant' of case F.I.R. No,500, dated 27-12-2011, offence under sections 365-A, 395, 412, P.P.C., registered at Police Station Qadirabaid, Mandi Baha-ud-Din, seeks cancellation of ed to respondent No,2 by learned Judge, Anti-Terrorism Court No,1 Gujranwala, vide order dated 24-7- 2012.

2. Learned counsel for the petitioner submits that the accused/respondent No,2 was though not named in the crime report, however, he was brought in through supplementary statement. Learned counsel vehemently contends that after recovery of the abductee on 2-1-2012 his statement was recorded which further establishes the link of respondent No, 2 with the alleged crime. It is next argued that on 22-4-2012 statement of the complainant with regard to demand of ransom by the accused was also recorded and while deciding application under section 23 of the Anti-Terrorism Act, 1997, filed by the respondent, the learned trial Court had dismissed the same thereby attending each and every aspect of the case especially with regard to applicability of the provisions of section 365-A, P.P.C. Further contends that astonishingly while admitting respondent No,2 to post- arrest bail, the learned court below while taking a somersault gave altogether different finding; which is contrary to the material available on record. Adds that in presence of incriminating material corroborating the prosecution case and connecting the petitioner with the crime, the learned trial court was not justified in admitting respondent No,2 to post-arrest bail. Learned counsel for the petitioner finally submits that by the impugned order of the learned court below the whole prosecution case has been prejudiced and in these circumstances this is a fit case for cancellation of bail.

3. Learned DDPP though supports the impugned ing order, however, concedes that while deciding the bail petition the learned trial Court has given definite findings, which have seriously prejudiced the case.

4. Contrarily, learned counsel representing respondent No,2 vehemently opposes the contentions raised by learned counsel for the petitioner with the submissions. That respondent No,2 was not named in the crime report, who was brought in through supplementary statement. Further submits that nevertheless the abductee was recovered on 2-1-2012, however, till his recovery no element of ransom amount was brought on record. Learned counsel next submits that even bulk of prosecution evidence has already been recorded, hence any order passed at this stage may prejudice the case of respondent No,2, as well.

5. We have heard the arguments advanced by learned counsel for the petitioner, learned counsel representing respondent No,2, as well as, learned DDPP and gone through the record available on file.

6. This Court is conscious of the fact that it has been the consistent view of the superior courts of the country that considerations for grant of bail and cancellation thereof are altogether different but at the same time if ing order is without jurisdiction, having been passed without observing the mandatory provisions of law, this Court has ample powers to entertain application under section 497(5), Cr.P.C. In the instant case prima facie there is ample evidence on the record to establish that it was respondent No,2, who along with other co-accused abducted Tariq Bashir son of the complainant, who was subsequently recovered and his statement was also recorded in this regard. Moreover, on 22-4-2012 not only the factum qua ransom amount was brought on record rather the learned trial Conn by virtue of order dated 21-5-2012 had dismissed the application of the respondent filed under section 23 of the Anti-Terrorism Act, 1997, while appreciating the material available on record. However, astonishingly while deciding the bail petition, the learned trial Court went beyond its jurisdiction. And gave a definite opinion qua the fate of the case with regard to applicability of section 365-A, P.P.C.

7. In this view of the matter, as by way of impugned ing order the prosecution case has, been prejudiced to a greater extent, therefore, notwithstanding the fact that bulk of prosecution evidence stands recorded, this Court deeming it appropriate that there exist exceptional circumstances to interfere in the matter, by allowing this petition, is persuaded to cancel the ed to respondent No,2 by learned Judge, Anti-Terrorism Court No,I, Gujranwala, vide impugned order dated 24-7-2012.

8. We have been further persuaded to direct that as the learned Judge has already disclosed his mind with quite certainty, which may also prejudice the case at the time of final disposal, therefore, the file of case F.I.R. No,500, 27-12-2011, offence under sections 365-A, 395, 412, P.P.C , registered at Police- Station Qadirabad, Mandi Bahaud-Din is directed to he transferred to learned Judge, Anti- Terrorism Court No,II, Gujranwala, who shall finalize the trial strictly in accordance with law.

9. Bail cancelled.

Bail cancelled.