1. By this Application under Section 498/498-A Cr.P.C. applicants Allah Bachayo and Hussain have approached this Court for grant of pre-arrest bail in Crime No, 15/2008, PS Mityari, which relates to an incident which had occurred within the jurisdiction of PS Mityari, on 15.3.2008 at 1445 hours, and such complaint was lodged by one Muhammad Jumman at the PS on the same date at 1830 hours.
2. As per contents of the FIR, six persons including two applicants, duly armed with different weapons entered the house of complainant forcibly due to matrimonial dispute and had fired at him but luckily the complainant succeeded to escape unhurt, while his sisters Mst. Basra and Asma sustained firearm injuries on their chest and arms and one sister Basra succumbed to such injuries.
3. After investigation of crime by the Investigating Officer, the police has submitted challan on 10.4.2008, wherein two applicants have been shown as absconding accused.
4. On filing of this Bail Application, before High .Court on 17.4.2008, the applicants were admitted to interim pre-arrest bail on the same dale, on their furnishing surety in the sum of Rs, 100,000/- (Rupees one lac only), each.
5. I have heard learned counsel for the applicants at length. He has contended that applicants, being the male members of the family of accused party, have been falsely implicated in the crime as customary in the interior of Sindh; according to prosecution story no firearm injury has been caused by them either to the deceased Mst. Basra or to injured Asma, therefore, it is a fit case where the applicants are entitled to pre-arrest bail. In support of his submissions, he has relied upon the following cases:-- 2005 M LD 1443, . 2004 P.Cr.L.J. 1888 2006 SCM R 1292 2004 SCM R 1167 Learned Assistant Advocate General, Sindh has vehemently opposed this pre-arrest bail application and contended that injured witness as well as other two eye-witntesses of incident, whose 164 Cr.P.C. Statements have been recorded before the Magistrate, have fully implicated the two applicants in the commission of crime and even role of obstructing Muhallah people, who had rushed at the scene of occurrence due to shouting from the house of complainant, has been assigned them and both of them were duly armed with weapons, therefore, no case for grant of pre-arrest bail is made out, which is to be distinguished from the case of grant of post arrest bail.
6. He further argued that no malafide has been pointed out by the applicants from any material on record, which may justify grant of pre-arrest bail to them.
7. Learned counsel for the complainant has placed on record copies of 164 Cr.P.C. statement of injured witness Asma and two other eyewitnesses Gul Hassan and Mithoo. All three of them have, according to learned counsel for complainant, fully corroborated the case of prosecution, as per contents of the FIR, besides, the medical report, which also lends corroboration and support the prosecution story.
8. I have considered the submissions made by learned counsel and perused the material available on record, which goes to show that not only applicants' presence at the place of occurrence is prima facie established from the statements of prosecution witnesses and the contents of FIR, but specific role of obstructing the Muhallah people from rescuing the complainant party, being armed with weapons, has been attributed to them. In such circumstances, prima facie sharing of common intention between the applicants and two other accused of incident could not be ruled out. Mere fact that in his 164 Cr.P.C. statement one of accused Muhammad Yousuf has taken responsibility of the incident on his shoulders will not, at this stage, absolve the applicants of their role as the prosecution is to establish it's case in this regard during trial.
9. The submission of learned A.A.G. Sindh that case of pre-arrest bail is to be distinguished from the case of post arrest bail and question of mala fide is to be examined in that context has such force.
10. In the presence case, in the wake of evidence available with the prosecution, in the form of 161 Cr.P.C. and 164 Cr,P.C. statements, it cannot be said that involvement of present applicants in the incident is mala fide. The applicants are involved in the commission of crime, which falls under the prohibitory clause of 497(1) Cr.P.C. and, therefore, grant of interim pre-arrest bail without touching the merits of the case can not be approved/justified. More-over, for no valid or exceptional circumstances the applicants have failed to approach the trial Court in the first instance, which the rule of propriety demands.
11. Fore-going are the reasons for the short order separately passed today.