YAQUB KHAN vs THE STATE and another
This petition for post-arrest bail arose from a murder case where the petitioner was charged under Sections 302, 324, and 34 of the Pakistan Penal Code 1860. The petitioner sought bail on the grounds that medical evidence regarding charring marks contradicted the ocular evidence and the site plan. The complainant opposed the bail, highlighting that the occurrence was in daylight, the accused was directly charged, and the accused had absconded for over three years. The Court held that at the bail stage, detailed appreciation of evidence is not required, and ocular evidence generally prevails over site plan details and medical evidence when the accused is sufficiently connected to the guilt. Crucially, the Court determined that an accused who remains a fugitive from law for a significant period without a reasonable explanation disentitles themselves to the concession of bail, regardless of the merits of the case. Consequently, the Court refused the bail application, citing the petitioner's prolonged abscondence and the availability of direct ocular evidence.
- Does the presence of charring marks in a medical report necessarily negate ocular evidence at the bail stage?
- Does an accused who remains a fugitive from law for a long period without explanation lose the right to the concession of bail?
- Should a court conduct a detailed appreciation of evidence during bail proceedings?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 512, Code of Criminal Procedure 1898
'ATTAULLAH KHAN, J.---Petitioner, namely, Yaqoob Khan son of Sher Khan, applied for bail to the Judicial Magistrate and Sessions Court but he failed and thereafter filed the instant petition for his release on bail.
2. The petitioner is charged vide F.I.R. No,323 dated 30-9-2009 under sections 302/324/34, P.P.C. Of Ghori Wala District Bannu.
3. Arguments heard and record perused.
4. Learned counsel for the petitioner argued that ocular evidence is contradicted by medical evidence because charring marks are not possible in view of distance between the deceased and the accused. He also argued that the deceased remained live after firing for about 30 minutes but the complainant left him unattended and lodged the report and this fact has been confirmed by medical evidence which giving time in relevant column.
5. On the other hand, the stand of learned counsel for complainant is that it is a day light occurrence and accused are directly charged. The ocular evidence is sufficiently supported by medical testimony and the accused also remained absconder for a long period, therefore, according to him the petitioner is not entitled to the concession of bail.
6. Brief facts of the case are that on 30-9-2006 at about 9-00 hours the occurrence took place.
According to report the complainant along with his brother, namely, Abdul Jabbar were on way to their landed property for cutting gross. When they reached to the spot at about 9-00 hours they saw accused Yaqoob and Ayub duly armed with double barrel guns. Both the accused opened fire which hit Abdul Jabbar who died on the spot. After the occurrence the accused absconded.
7. I would first discuss the medical evidence, though not required at bail stage but to meet the arguments of the learned counsel for the accused in this regard. According to learned counsel the accused were at points Nos.3 and 4 from where they fired at the deceased present at point No,l.
According to him the distance between points No,1 & 3, is 3 paces while between 1 and 4, is 4 paces.
According to the learned counsel for the accused/petitioner, the doctor in postmortem report has mentioned charring marks present in both injuries sustained by the deceased. According to him charring marks could not be possible at the distance given in the site plan. The learned counsel has based this argument on the distance given in the site plan. This argument need not be discussed in detail at this stage because in cases where ocular evidence is available, the contents of site plan in respect of minute details loses its evidential value and cannot negate the ocular version. Similar is the case of medical evidence and if it is contradicted with the ocular evidence, ocular version would prevail if it has sufficiently connected the accused with guilt. Reference may be given to 2002 YLR 1523. Even otherwise at this stage I would not go in detail appreciation of evidence.
8. Apart from this, the accused/ petitioner remained fugitive from law for more than three years.
The learned Sessions Court also completed proceedings under section 512, Cr .P.C. And recorded prosecution evidence against the absconding accused. No reasonable explanation has been given as to why the accused/petitioner remained absent for this long period. If an accused remained absconder for long period without giving just reasons, he becomes disentitled for concession of bail notwithstanding the merits of the case. In such like cases, the accused loses his normal rights.
Reference may be given to a case reported in 2000 PCr.LJ 60.
9. In short it is a daylight occurrence which took place at 9-00 a.m. The report was promptly lodged within one hour which stands explained keeping in view the distance between place of occurrence and A Police Station. The accused/petitioner is directly charged in the F.I.R. The ocular evidence is available, Medical report also supports the ocular version. The accused/petitioner is fugitive from law without explanation. So in these circumstances, the accused/petitioner is not A entitled to concession of bail and his bail is refused.
Cited by 1 case
- KHALID KHAN vs THE STATE and another 2011 MLD 1902