ALLAH BACHAYO and others vs STATE

Faqir Muhammad Khokhar, J.--The petitioners and others have been charged by the trial Court under Sections 302, 324, 147, 148, 149 and 504 PPC in case FIR No, 15 of 2008, registered in P.S. Matiyari District Matyari. The complainant Muhammad Jumman alleged in the FIR that both the petitioners and four others named in the FIR carrying the fire-arms trespassed into his house and caused fire-arm injuries on the person of his sister-in-law Mst. Basra deceased and his sister Mst.

Asma on their vital parts. Consequently, Mst. Basra succumbed to the injuries whereas Mst. Asma remained in the hospital for a considerable period of time. The pre-arrest bail Application No, 407 of 2008 of the petitioners was refused by the High Court of Sindh, Karachi, vide impugned order dated 08.09.2008 passed in Criminal Bail Application No, 407 of 2008. Hence this petition for leave to appeal.

2. The learned counsel argued that during the course of the investigation of the case, co-accused Muhammad Yousaf had made a confessional statement under Section 164 Cr.P.C. stating that it was only he and one Urs, who were responsible for causing fire-arm injuries on the person of the deceased and PW-Mst. Asma. Therefore, the possibility of false involvement of the petitioners and other co-accused could not be ruled out. It was further argued that the statements of eye- witnesses of occurrence were recorded by the Police with inordinate and explicable delay which would cast a serious doubt upon the veracity of the prosecution version. The case required further inquiry, which entitled the petitioners to the benefit of grant of pre-arrest bail. Reliance was placed on the case of Gul Naseeb v. State (SBLR 2008 SC 137).

3.On the other hand, the learned Prosecutor General, Sindh, as well as the learned counsel for the complainant supported the impugned order of the High Court. They submitted that the inmates of the house were the natural witnesses of the occurrence, including injured PW-Mst. Asma, who had fully supported the prosecution case and that the charge had also been framed against the petitioners and others. There were reasonable grounds to believe that the petitioners were guilty of offence involving capital sentence. Reference was made to the case of Ghulam Nabi v. The State (1996 SCM R 1023).

4. We have heard the learned counsel for the parties as well as the learned Prosecutor General Sindh and have also gone through the available record with their able assistance. Prima facie, there is material to indicate that the petitioners and others had gone to the house of the complainant party. As a result of the assault of the accused by use of firearms, one Mst. Basra lost her life whereas F.W Mst. Asma also received fire-arm injuries on vital parts of her body and she luckily survived: The injured PW Asma supported the prosecution case thereby involving the petitioners with the commission of offence. The principles governing the concession of anticipatory bail are quite different from those which are attracted to a case of post-arrest bail.

Ordinarily, this Court being constitutional Court is not expected to interfere with the bail matters, if properly dealt with by the High Court. Reference may useflly be made to the case Sultan Khan versus Amir Khan (PLD 1977 SC 642). The petitioners have not been able to make out a case for grant of pre-arrest bail. The discretion exercised by the High Court does not suffer from any legal infirmity so as to warrant interference by this Court. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.