1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No, 29 of 2011 was recorded at Police Station, Agra on 13-7-2011 at 7-00 a.m. For an incident alleged to have taken place an hour earlier. Complainant stated that he along with his uncle Mehboob Ali, relative Shokat Ali and neighbours Zahid Hussain, Rahib Ali and Abdul Jabbar was going for labour work to a brickyard when on the way they were accosted by a group of 15 men; 07 of them armed with K.Ks including the present applicant while others were armed either with guns or with repeaters. One co-accused gave Hakal and then it was stated that all the persons, with intention to kill, fired at Shokat Ali, Zahid Hussain and Mehboob, who raised cries and fell down while others managed to evade by running to a sugarcane crop. Thereafter, culprits went away. The three injured were found dead; consequently, F.I.R. Was lodged.
2. ' Learned counsel submitted that the applicant was arrested on 18-7-2011 and from him nothing has been recovered so far. Learned counsel next contended that in previous F.I.R. Bearing No, 257 of 2010, 8 persons were nominated including the present applicant and this has been a typical tribal enmity pattern. Learned counsel next contended that post mortem report reveals that in the large intestine, faecal matter was found and in this regard he relied upon certain extract from Modi's. Learned counsel relied upon Bachol v. The State 2009 PCr.LJ 646.
3. ' Learned D.P.-G. Submitted that from scene of the incident, ten empties of KK and 05 empties of gun have been recovered. Regarding presence of faecal matter and time, learned D.P.-G.
4. Submitted that it requires deeper appreciation of evidence, which exercise cannot be undertaken at the bail stage. He relied upon Sarfaraz v. The State, PLD 2001 Karachi 162, Shokat Illahi v. Javed Iqbal and others, 2010 SCM R 966 and Munawar v. The State 1981 SCM R 1092.
5. ' I have considered the submissions made by the learned counsel and have also gone through the record.
6. ' First contention of the learned counsel was that though the applicant was arrested promptly but nothing has been recovered from him. Recovery is always a corroborative piece of evidence and as to what is the effect of recovery or non-recovery can be gone into only once evidence is recorded. Mere non-recovery at the bail stage cannot be a ground for granting bail.
7. ' Next contention of the learned counsel was that in previous F.I.R., 08 persons were nominated including the present applicant and all those 08 persons are included in the present 15 and, therefore, there was a tribal enmity. As has been observed by me in various orders, existence of enmity is always a double edged weapon and it cuts both ways. Whereas it can be argued with a reasonable degree of emphasis that F.I.R. Is actuated out of enmity, it can be also argued with equal amount of vehemence that the incident is motivated out of enmity. Therefore, previous enmity does not help either side in most of the cases, at least, at the bail stage.
8. ' Next contention was that the incident occurred in the morning when according to story of the prosecution, the complainant and his companions were going for work to a brickyard. Learned counsel submitted that at morning time before going for work most of people relieve themselves and, therefore, presence of faecal matter in the large intestine indicates that incident had not occurred the way it was mentioned in the F.I.R. He relied upon the following extract from Modi's: "The doctor in the post mortem examination found that the small intestines were distended with gas, liquid faeces was present in the end of the small intestine, the large intestines and the stomach were empty. The oral evidence showed that just before the occurrence, the deceased had taken tea and eaten two samosas. It was held that the prosecution case was belied by the post mortem report. The accused were acquitted.
9. ' In the post mortem examination, the medical officer found the stomach and bladder empty and presence faecal matter in the large intestine of the deceased. Oral evidence revealed that the deceased used to ease himself just after getting up from the bed. The Supreme Court held that the death took place early in the morning before the deceased had evacuated as against the prosecution case of 9 a.m. The accused were acquitted."
10. The above need not detain me at this stage because in both the instances cited by Modi, the appeals were decided after appraising evidence. Learned D.P.-G. .Has correctly argued, relying upon Sarfraz's case (surpa) that deeper appreciation of evidence cannot be conducted at the bail stage.
11. ' It was also contended by the learned counsel that it is alleged in the F.I.R. That 15 persons came and then all of them resorted to firing. Three persons were killed. Ten empties .Were recovered but no specific role of the present applicant has been stated. The argument is plainly misconceived.
12. The way the incident is put in the F.I.R. Is that of a situation of almost a war or genocide: 15 people came; resorted to indiscriminate firing resulting in death of three of the other side. Would it be relevant in such circumstance to appraise whether what is role played by one individual? In such situation, and that too at the bail stage, in my ,opinion, the cases stand at different footings than a run of the mill case where firing is made at one or two persons by one or two persons and not a general non-specifically but aimed fimed. In this regard, reliance by D.P.-G. On Shokat Illahi's and Munawar's case, (supra) is not without relevance.
13. The applicant was a member of an assembly which specifically waylaid six person of the other side and there was no question of whom they wanted to kill and whom they did not want to kill. It was a case where almost a war is declared by persons of one tribe against persons of other hapless tribe.
14. There, therefore, appears to be sufficient material to prima facie connect the present applicant with the offence.
15. ' Consequently, the bail application is dismissed.