Vide FIR No, 7 dated 1.2.2004 Police Station Mulazai, District Tank, a report was lodged by Rasool Khan complainant accompanying the deadbody of his father Sarwar Khan wherein he stated that on the day of occurrence at noon time he alongwith his deceased father and his aunt Mst.
Rukhsana were proceeding towards the Police Station for the surrender of his father and after coming out of the house when they proceeded a few paces, there was constant firing on them and the complainant allegedly saw accused Said Badshah, Gul Badshah, Khan Badshah Rehmat Shah, Laiq Shah and Badshah Khan firing at them, as a result of which, his father was hit and succumbed to the injuries whereas his aunt Mst. Rukhsana also received fire-arm injuries. The investigation was conducted and all the accused went into hiding for a considerable period and finally on 14.12.2004 Laiq Shah and Rehmat Shah accused were arrested. They moved an application for bail which was regretted by the Courts below and hence, this petition for their post-arrest bail.
2. Learned counsel for the petitioner argued that the deceased was a Proclaimed Offender and the date of occurrence was a day preceding to `Eidul-Azha' and normally the occasion of Eid was not a fit time for surrender of a Proclaimed Offender before the police because thereby the entire family will suffer the shock and agony of the arrest of their relative. Moreover, he argued that there was another unbelievable allegation that the aunt of the complainant had accompanied the deceased which is illogical because in the tribal culture of the society, the womenfolk normally do not accompany the male members of the family particularly when they proceed for surrendering someone before the police in criminal matters. The learned counsel further argued that there was only one wound on the deceased and that too on the skull whereas six persons have been charged without attributing a specific role to any one of them. The learned counsel pointed out that there were several fire-arm entrance wounds on the person of Mst. Rukhsana but the empties recovered from the scene of occurrence were of 7.62 bore and the dispersal of the bullet with regard to Mst.
Rukhsana but the empties recovered from the scene of occurrence were of 7.62 bore and the dispersal of the bullet with regard to Mst. Rukhsana and the single injury on the person of the deceased were not explained as yet. Several doubts were caused and the benefit of doubt can be invoked and extended to the accused even at the bail stage as held in PLD 1872 SC 277. (Learned counsel further added that since six accused have been charged for firing at the deceased and the injured but no specific role has been attributed, therefore, on the basis of the judgment reported as 1979 SCM R 251 all the accused shall be entitled to bail at this stage because it would become a case of further inquiry. The learned counsel pointed out that Petitioner No, 2 was employee in Scouts posted in Mastoong. Quetta and the official record reveals that he was present on duty on the day of occurrence. Hence, the learned counsel argued that both the petitioners or at least Petitioner No, 2 is entitled to be released on bail.
3. Learned counsel for the complainant argued that it was a broad day light Occurrence and the accused were directly charged in a promptly lodged FIR. There was a confirmed motive and previous FIRs against the deceased by the accused party establish the enmity and a strong case for taking revenge. He also referred to the prolonged abscondence of the petitioners as they avoided the process of law for nine months and ten days.
With regard to the possibilities and improbabilities about the happening of occasion and surrender a day prior to `Eid-ul-Azha' and presence of lady for the said purpose, learned counsel for the complainant explained that normally when a person is fugitive . from law, the family members are constantly put in agony by frequent raids of police and normally on the occasions of Eid, the number of raids are increased because of the possibility of visit of the absconders to their homes.
To avoid any ugly situation, the family members of the deceased might have taken a decision to surrender of accused to the police a day before the day of Eid. With regard to the presence of Mst.
Rukhsana alongwith the deceased, who was a Proclaimed Offender, the learned counsel for the complainant appropriately explained that in view of the culture of the society, when somebody moves in the company of womenfolk, normally they are not attacked by the enemies in view of the sanctity extended to the ladies in the area and that is why to avoid any untoward incident, Mst.
Rukhsana also accompanied the deceased to the Police Station but the moment they left the house, they were fired at and the evil was done.
4. Perusal of the record shows that although there was a solitary injury on the person of the deceased for which six persons are charged but that juries on the person of Mst. Rukhsana cannot be over looked and even if the number of injuries may be disproportionate to the number of accused, that will not be a ground to release the accused on bail particularly when there is a strong motive and prolonged abscondence. The plea of "alibi" could be considered for the Petitioner No,
2. However, the convincing documentary evidence is not available on the file and the only two documents in this regard are dated 24.9.2004 and 14.10.2004. In the former one, the office of 69 Wing Ghazaband Scouts, Mastoong has mentioned that Rehmat Shah, Petitioner No, 2, "was on active service on the date shown in the FIR". However, in the second letter on behalf of the Commandant of the A said Scouts Headquarter Balily, certain more specific details were given and it was confirmed that Rehmat Shah, Petitioner No, 2, "was on duty on 28.1.2004 and therefore, his involvement in the case FIR registered against him on 1.2.2004 was not understood". This latter opinion given by a senior Officer on behalf of the Commandant supercedes the earlier one and the opinion communicated through this letter reveals that the record merely indicates his presence on duty on 28.1.2004. A person present in Mastoong, Baluchistan on 28.1.2004 can certainly be available after four days i,e, on 1.2.2004 at his village particularly when the employees normally return to their homes during the Eid holidays. Since a direct evidence about the presence of the petitioner at Mastoong on 1.2.2004 is not available so far on the file, therefore, the plea of "alibi" has lost its force, for the purpose of bail.
5. Consequently there is no justification to release the petitioners on - bail. The application is, therefore, dismissed.