Recovery from accused

2012 YLR 2416 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss.302/147/148/149Qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assemblyBail, refusal ofRecovery from accusedEvidentiary valueScopeEnmity . between the partiesEffect

Allegation against the accused and co-accused was that they waylaid the complainant and his companions while they were going for work in the morning, where after the accused and co-accused fired at and murdered the three deceased persons

Contentions of the accused were that nothing had been recovered from him; that there was tribal enmity between the parties; that at morning time before going for work most people relieved themselves and, therefore, presence of faecal matter in the large intestine of the deceased persons indicated that the incident had not occurred the way it was mentioned in the F.I.R.

Validity

Recovery was always a corroborative piece of evidence and question as to what was the effect of recovery or non-recovery could be gone into only once evidence was recorded

Mere non-recovery at the bail stage could not be a ground for granting bail

Existence of enmity was always a double edged weapon and it cut both ways

Question as to whether F.LR. was actuated out of enmity or that the incident was motivated out of enmity, both could be argued with equal amount of vehemence

Previous enmity did not help either side in most of the cases, at least at the bail stage

Contention of the accused regarding presence of faecal matter in the large intestines of the deceased persons would not detain the court as deeper appreciation of evidence could not be conducted at bail stage

Accused was member of an unlawful assembly, which specifically waylaid six persons and there was no question as to whom they wanted to kill

Present case was a case where almost war was declared by persons of one tribe against persons of the other hapless tribe

Sufficient material was available prima facie to connect the accused with the offence

Bail application of the accused was dismissed, in circumstances.