KATPAR Versus THE STATE
This matter arose from an application for post-arrest bail brought on behalf of applicant Katpar and co-applicant Deedar in a murder case registered following the death of Khadim Hussain. The core legal questions before the High Court were whether a significant conflict between the solitary ocular testimony and the medical evidence regarding the role assigned to an accused, coupled with the granting of bail to co-accused and prolonged incarceration, entitles the accused to bail under the rule of further inquiry. The High Court observed that while the FIR attributed a gun-shot wound to applicant Katpar, the Medical Officer confirmed in evidence that there was no gun-shot injury on the body of the deceased. In addition, five co-accused had already been granted bail by the trial court, and the prosecution raised no objection to the bail application. The court held that the conflict between the medical evidence and the solitary ocular version created a case requiring further inquiry. Consequently, the bail application for applicant Katpar was allowed, subject to furnishing surety and a personal bond.
- Does a conflict between the medical evidence and solitary ocular testimony regarding the specific role of an accused justify the grant of bail on the ground of further inquiry?
- Whether an accused is entitled to post-arrest bail when the medical evidence fails to support the specific overt act attributed to him in the FIR?
ORDER
It is the case of prosecution that Khadim Hussain was murdered on 16‑10‑2000 at 6‑00 p.m. According to F.I.R. lodged by Abdul Rehman, cousin of the said decreased, the complainant and deceased were proceeding to their village when they were attacked by Nazar Muhammad, Arz Muhammad, Muharram, Ghulam Mustafa, Qurban, Soomer, Nadar, Katpar (applicant) and Deedar (applicant), to whom Nazar Muhammad Qurban, Nader and Katpar were armed with guns, Muharram, Arz Muhammad and Soomer had rifles and the rest had hatchets. It is alleged that Katpar fired from his gun and Muharram from his rifle at Khadim Hussain which hit him and he fell down after raising a cry. Deedar inflicted sharp sided hatchet blow upon him on his forehead. The cries raised by complainant and fire‑arm reports attracted P.Ws. Daim and Nawaz and many others whereafter the assailants went away making fire in the air.
2. I have heard Mr. Khalid lqbal Memon, Advocate and Mr. Ali Azhar Tunio learned Assistant Advocate‑General for the State. Mr. Khalid Iqbal Memon at the outset did not press the application for bail on behalf of applicant Deedar, consequently the application of Deedar is dismissed as withdrawn.
3. Mr. Khalid Iqbal Memon advanced the bail plea on behalf of Katpar mainly on the ground that a gun fire is attributed to the said applicant, but there is no injury on dead body marked by gun fire as such the ocular evidence is in conflict with medical evidence which may be resolved in favour of the applicant. Additionally, he submitted that the applicant is in jail since 5‑11‑2000 and so far only one witness namely Medical Officer has been examined at the trial. Since the applicant has remained in jail for a period of more than two years and four months, this is a case of hardship. He relied on Behram v. The State 2002 PCr.LJ 73 = PCr.R 2002 (Larkana) 1665. Learned Assistant Advocate‑General in view of the conflict between medical and ocular evidence conceded to the grant of bail.
4. It may be noted that five co‑accused namely Nazar Muhammad Arz Muhammad, Ghulam Mustafa, Qurban and Nadar have already been released on bail by the trial Court. The F.I.R. Shows that the P.Ws. were attracted to the scene on hearing cries and fire‑arm reports. In these circumstances it is contended that the ocular evidence about causing of the fatal injuries is that of complainant alone which is not supported by the medical evidence as far the role of the applicant Katpar is concerned. The Medical Officer has admitted in his evidence that there was no gun shot injury on the body of deceased. In view of facts of the case where, as many as, nine assailants have been involved and further the medical evidence does not subscribe to the solitary ocular version the case of applicant certainly requires further enquiry. Moreover, there is no objection on behalf of State to grant of bail.
5. In result of the above, the application is allowed to the extent that applicant Katpar be released on bail on furnishing one surety in the sum of Rs.3,00,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.
H.B.T./K‑93/K Bail granted.