1. ' ANWAR ZAHEER JAMALI, C.J.--- By this pre-arrest bail application, the applicants have sought pre- arrest bail in Crime No,73 of 2008, Police Station Mehrabpur, wherein they have been charged with the allegation of commission of offence punishable under sections 302, 324, 147, 148, 149 and 504, P.P.C.
2. ' This pre-arrest bail application was filed before High Court on 30-4-2008 in the compelling circumstances, which have been disclosed at pages 2 and 3 of this pre-arrest bail application.
3. ' As per contents of the F.I.R., which was lodged by one Allah Wasayo on 14-4-2008, in the aforesaid crime, due to some dispute between the rival parties, a Faisal was arranged at the Otaq of one Haji Khan Noorani alias Lal Bux on 12-4-2008 during which Saqlain, one of the persons from accused party allegedly fired at the nephew of complainant Allah Wasayo, who sustained injury on his chest and succumbed to such injury.
4. ' In respect of the same incident, another F.I.R. Bearing Crime No,74 of 2008 was lodged at the same police station on 14-4-2008 by one Kazim Raza, wherein he narrated another story of the incident, showing the complainant Allah Wasayo and Lal Bux alias Haji Khan as the main culprits of the incident, during which at the hands of Lal Bux alias Haji Khan fire-arm injury was sustained by one Zulqarnain, who later on succumbed to the injuries, while two other persons sustained injuries.
5. ' The submission of the learned counsel for the applicants is that F.I.R. Of the incident is delayed by two days. From the contents of the two F.I.Rs, of the incident (Crimes Nos.73 of 2008 and 74 of 2008), Police Station Mehrabpur, it is evident that aggressor party headed by Allah Wasayo, complainant in the present crime, in a well-planned manner, with mala fide intention has falsely implicated the three applicants in the commission of crime, though one of them is injured of the incident. Besides, he submits that no overt act or even role of instigation has been assigned to the applicants, therefore, it is a fit case where the interim pre-arrest to the applicants may be confirmed.
6. ' Mr. Salim Akhtar, learned Additional Prosecutor-General, Sindh for the State did not oppose the narration of facts as made by learned counsel for the applicants. However, he opposed confirmation of pre-arrest to the applicants on the ground that the applicants should have first exhausted the remedy of pre-arrest bail before the trial Court, which of course was availed, but not exhausted.
7. ' I have carefully perused the material placed on record and seen that there is specific statement made in the pre-arrest bail application about the filing of earlier pre-arrest Bail Application No,185 of 2008 before the District and Sessions Judge, Naushero Feroze, which was subsequently, transferred to the Court of Additional Sessions Judge, Kandiaro, where on 25-4-2008 the applicants appeared, but notice of pre-arrest bail application was issued without admitting the applicants on pre-arrest bail, whereafter as per the assertions made by learned counsel for applicants in the pre-arrest bail application, Court premises of Additional Sessions Judge, Kandiaro were surrounded by police of Police Station Mehrabpur, therefore, on the next date the applicants could not appear and they opted to file this pre-arrest bail application.
8. As to the merits of the case, admittedly even as per the contents of the F.I.R. No,73 of 2008, the role of firing has been attributed only to accused Saqlain and nothing has been stated against the present three applicants about their participation in the crime though shown to be armed with different weapons. Perusal of other F.I.R. No,74 of 2008 of the same incident gives an entirely different story therein, which shows that at the hands of Lal Bux alias Haji Khan one Zulqarnain has sustained fire-arm injuries, who later on expired, while applicant No,3 Nazim had also sustained fire-arm injuries at the hands of Qamber.
9. ' In these circumstances, when there are counter-F.I.Rs, of the same incident and murder of two persons from one side and one person from other side has taken place; one other person from the applicants' side has sustained fire-arm injuries, prima facie, the possibility of mala fide implication of the applicants in the commission of crime cannot be ruled out further their false implication is also possible in an F.I.R. Which was lodged after two days of the incident, without any plausible explanation for such delay.
10. ' This being the position, pre-arrest to the applicants vide order, dated 2-5-2008 is confirmed in the same terms with direction! That they shall appear before the trial Court, if and when required.