Pakistan Case LawYar Badshah Versus State
This bail application concerned accused Yar Badshah, who sought release in a case registered under Sections 302, 324, 109, and 34 of the Pakistan Penal Code 1860, following an incident where he was directly charged by the complainant with the murder of his uncle and attempted murder of the complainant. The core legal questions revolved around the weight of direct evidence versus expert opinion and the admissibility of an alibi plea at the bail stage. The court dismissed the bail application, finding a prima facie connection between the accused and the heinous offense. The judgment reiterated the principle that expert evidence, such as ballistic reports, is confirmatory or explanatory and does not outweigh definite, creditworthy direct evidence unless the latter is deficient. Furthermore, it was held that a plea of alibi cannot be considered at the bail stage, as its merits are to be assessed by the trial court during the full trial in light of all presented evidence.
- Can expert evidence outweigh definite direct evidence in a criminal case?
- Is expert evidence primarily confirmatory or explanatory in nature?
- Can a plea of alibi be considered at the bail stage?
- Whether a tentative assessment of available record connecting an accused with a heinous offense carrying capital punishment disentitles them to bail?
Ijaz Anwar, J .--- Through instant bail application, accused petitioner Yar Badshah son of Zaheer Ullah seeks his release on bail in case FIR No. 140 dated 5.02.2022 registered under sections 302/324/109/34 P.P.C at Police Station Faqir Abad, Peshawar.
2.According to the contents of the FIR complainant Abdul Malik present with dead body of his uncle Yousaf Kandharey (deceased) in the trauma room LRH, Peshawar reported the matter to police stating that on the day of occurrence, he along with his uncle Yousaf Kandharey were going to Bacha Khan chowk in their car XLI No. 3578/Lahore and when reached the place of occurrence, there on the direction of accused Fazal Dad, accused Yar Badshah (petitioner) and Ghazan ridiing on motorcycle started firing at them with their respective firearms with which his uncle Yousaf Kandharey was hit on his chest and head whereas he (complainant) escaped unhurt. That the deceased then injured while being taken to the hospital expired on the way. Motive for the occurrence was stated previous blood feud. On his report, the instant case was registered.
3.Arguments of learned counsel for the parites heard and record gone through.
4.Perusal of record would reveal that accused petitioner has been directly charged by the complainant in the FIR for committing the murder of his uncle namely Yousaf Kandharey (deceased) as well as ineffectively attempting at his life. The P.M report showing two firearmy entry wounds with its corresponding exit wounds, the recovery of blood from the front seat of the motorcar and pieces of the front glass of the motorcar damaged with the firing of accused substantiate the prosecution version. Similarly, 06 empties of 30 bore have been taken into possession vide recovery memo. from Point-C near point 3 where accused petitioner has been shown present at the time of occurrence. Though, the said empties have been reported by the FSL to have been fired from one and the same 30 bore pistol, however, such opinion being corroborative in nature shall have no bearing on direct or other circumstantial evidence available on record against the accused petitioner and in such circumstances, much weight cannot be attached to such opinion of the expert. In the case of "Yaqoob Shah v. the State" (PLD 1976 SC 53) , the august Supreme Court of Pakistan while dismissing bail application of the accused charged therein observed as under:
"It is well-established principle, that expert evidence, may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence as in the instant case which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance, It cannot, at any rate, out weigh the direct evidence unless it for any reason deficient in quality."
5.So far as affidavits submitted in favour of the innocence of the petitioner and his plea of alibi is concerned, the same, at this stage cannot be considered in favour of the accused petitioner as it will be looked into by the trial court during trial in view of the evidence produced before it. In case titled "Ghulam Ahmad Chishti v. The State and another" (2013 SCMR 385), the august Supreme Court of Pakistan while dilating upon the plea of ali bi at bail stage observed as under:
"We would not like to comment at this stage about the merits of petitioner's plea of alibi or his involvement in the alleged conspiracy. It would be for the learned trial Court to consider the plea in the light of the evidence led by prosecution and defense inter alia the passport entries, the air tickets, airport entries as also with regard to conspiracy. The learned High Court having considered petitioner's plea and the material placed before it by the prosecution has dismissed the bail petition in exercise of its discretionary jurisdiction holding that "prima facie the petitioner appears to be connected with the commission of offence in terms as alleged against him". The said exercise of discretion has not been found by us to be arbitrary, capricious or against the law declared."
6.For what has been discussed above, tentative assessment of the available record prima facie connects the accused petitioner with the commission of herinous offence carrying capital punishment, disentitling him to the concession of bail. Resultantly, the instant bail application stands dismissed.
JK/175/P Petition dismissed.
Judges on this bench
- Ijaz Anwar303 judgments