KATPAR and another vs THE STATE
This matter concerns a bail application filed by the accused, Katpar, in a murder case. The prosecution alleged that the applicant and several co-accused attacked the deceased, Khadim Hussain, with firearms and hatchets, with specific allegations that the applicant fired a gun at the deceased. The core legal question was whether the applicant was entitled to post-arrest bail given the apparent conflict between the ocular testimony and the medical evidence, as well as the duration of his pre-trial incarceration. The Court held that the applicant was entitled to bail, noting that the medical evidence explicitly contradicted the ocular version regarding the gun-shot injury attributed to the applicant. Furthermore, the Court observed that five co-accused had already been granted bail and that the applicant had been in custody for over two years and four months without significant progress in the trial. The key principle laid down is that where ocular evidence is in direct conflict with medical evidence regarding the specific role of an accused, the case requires further inquiry, justifying the grant of bail.
- Does a conflict between ocular evidence and medical evidence regarding the specific role of an accused constitute grounds for further inquiry under bail provisions?
- Can an accused be granted bail when the medical officer confirms the absence of injuries attributed to the accused by the prosecution witnesses?
- Is the prolonged incarceration of an accused without significant trial progress a valid ground for the grant of bail?
- Section 497, Code of Criminal Procedure 1898
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 deceased, 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 Iqbal 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 favor 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.