1. ' This application for bail before arrest has been moved by applicants Sarai Ghulam Hussain, Ali Akbar, Khanoo, Anwar Shahu alias Shah Nawaz and Gul Muhammad who are present in Court are involved in Crime No.2 of 2004 under sections 435, 427, 147, 148, 149, 109 and 337-11(ii), P.P.C. Earlier to this, the applicants have surrendered before the trial Court but their application for bail before arrest was declined by order dated 15-7-2004.
2. The facts are that complainant worked as Hari and Kamdar on the leased land of Abdul Raheem Jamali and Ibrahim Malik and on the said land since long there is dispute between Dawach and Malik people. About some time back they used threasher on which Ghulam Hussain and Khan Muhammad Dawach came running who asked them that until and unless boundary wall earmarked and Faisla is held they should not take the wheat crop. On 24-4-2004 the Faisla between the lease holder of land namely Raheem Jamali and Ibrahim Malik and Dawach peoples was held by Rafiq Jamali where all the three parties agreed. Then Raheem Jamali came on yesterday at the land who asked them that on 24-4-2004 Rais Rafique Ahemd Jamali held Faisla at Dadu in which he Ibrahim Malik and. From Dawach Akbar and Ghulam Hussain Dawach accepted the Faisla. Then when they came out Akhar Dawach asked Sarai Ghulam Hussain Dawach that the said Faisla is not acceptable by him and he will fight. Then Raheem Jamali asked him that he should asked the Haris to be careful and remained present at Landhi and then tomorrow they will thresh the crop. On 25-4-2004 he as usual after eating meal along with Imam Bux son of Ali Akbar Jamali and Ali Khan son of Ghulamoon Jamali originally resident of Mirza Jamali, presently residing at Landhi of leased land went to sleeping. At about 0300 hours he saw heavy light and noise of burning on which he wake up on fire light he saw that the Dera of their wheat crop was burning and accused Sarai Ghulam Hussain having gun in his hand. Akbar, Khan, Sarwar, Anwar having guns in their hands. Shah Nawaz alias Shahoo having rifle in his hand all by caste Dawach resident of Sher Muhammad Dawach, Anwar and Wazir both by caste Chandio resident of Patt Sharif having guns in their hands were present there. He raised cries on which Ali Khan and Imam Bux woke up and they saw the accused. The peoples of other huts also came running. The accused then gave them Hakals and fired shot in the air and then decamped towards western side. Then S.H.O. Along with his staff reached there. They tried to extinguish the fire and save other Dera of wheat crops. Then they went together to follow the accused but the accused escaped away by taking benefit of darkness. Then at morning time Government foot tracker Waryam Khan and S.H.O. Started tracking the footprints but due to hard earth they did not find any footprint. He then asked the S.H.O. Let he inform his Zamindar and then he will lodge the report. He then gave information to Abdul Raheem at Dadu who asked him to lodge report with the police and lodged the same.
3. ' Heard the learned counsel for the applicant, learned State counsel and examined the record.
4. The main contention of the learned counsel for the applicants is that two accused persons namely Wazir and Sarwar the co-accused who have identical case were arrested and thereafter granted bail. His contention is that even if the present applicants are arrested they will be entitled to the grant of bail as well like that of the two accused persons. He submitted that once they are entitled to the bail after arrest there is no legal justification for refusing them bail before arrest.
5. ' Learned State counsel has not been able to controvert the above legal position.
6. The offence as alleged to have been committed does not fall within the prohibitory clause of section 497, Cr.P.C. And possibility of false implication of the applicants and ulterior motive on the part of the prosecution cannot be ruled out. Therefore, interim bail granted to the applicants by order dated 3-8-2004 is hereby confirmed on the same terms and conditions.
7. Interim .